On Friday 31st July 2015 the Courts reached a land mark judgement which resulted in the immediate deletion of several paragraphs of National Planning Practice Guidance.
In the case of R (on the application of West Berkshire District Council and Reading Borough Council) v Secretary of State for Communities and Local Government  EWHC 2222 (Admin), Justice Holgate found in favour of the claimants after ruling that that the Secretary of State for Communities and Local Government had, on several counts, erred in law when excluding developments of 10 units (5 in rural areas) or 1000sqm or less from having to deliver affordable housing and introducing vacant building credits by way of a Ministerial Statement in the House of Commons on 28th November 2014.
In reaching his decision Justice Holgate upheld the claimants grounds that:
- The Secretary of State failed to take into account material considerations (including need and viability issues assessed as would normally be considered as part of plan preparation);
- The national policy is inconsistent with the statutory scheme and its purposes (in this instance this refers to the primacy afforded to the Local Plan and its preparation);
- The consultation process carried out by the Secretary of State was unfair (principally that he failed to adequately grapple with the issues raised or really take the responses into account); and
- In deciding to adopt the new national policy the Secretary of State failed to comply with the public sector equality duty in section 149 of the Equality Act 2010.
On account of the above, Justice Holgate effectively concurred with the fifth ground that the decision to introduce the new national exemptions from affordable housing requirements was irrational.
As a result, it would appear that proposals for 10 or fewer dwellings will no longer be excluded from having to provide affordable housing, with levels of provision once again needing to be delivered in accordance with the policies of the respective Development Plan – many of which impose a lower threshold for the delivery of affordable housing.
The ability to claim vacant building credits also appears to have been retracted, which is likely to affect the viability of converting vacant buildings to residential use. This will have immediate implications for those with live planning applications already in the system, as well as the viability of emerging proposals.
Should you need advice, information or planning support in respect of any live applications or forthcoming schemes that may be affected by these changes, then please do not hesitate to contact us.