In November 2014 the Secretary of State amended the National Planning Policy Guidance (NPPG) by introducing exemptions for affordable housing (AH) and tariff based contributions for developments of 10 units or 1000m2 or less with a lower threshold of 5 units applying to designated rural areas, National Parks and AONBs. In addition, the “vacant building credit” was introduced which allowed local authorities to provide a credit, where a vacant building was being brought back into use or demolished for development, equivalent to the floor space of that building to be set against affordable housing contributions. The Secretary of State made a further decision in February 2015 to maintain the policy changes following completion of an Equalities Impact Assessment.

In West Berkshire District Council and Reading Borough Council v DCLG[2015] EWHC 2222 (Admin), the two local authorities raised a number of key concerns with the new provisions, which were inconsistent with their recently adopted local plan policies and Core Strategy which provided for AH to be provided on sites of less than 10 units, subject to a viability assessment in individual cases to justify a lower provision.

These related to the following:

  • AH provision on smaller sites did not necessarily render the developments non-viable and Ministers had not accepted advice that the exemption could be linked to viability considerations;
  • The new policy thresholds would reduce the amount of AH provided across the country and the supply of land identified to meet AH needs leading to authorities having to release more housing land on a continuing basis to meet the shortfall. Vacant building credit would also cause an additional shortfall;
  • The uniform threshold disregarded the variations in characteristics of different administrative areas, in contrast to the dedicated policies in local plans which were justified by an evidence base specific to that area. Authorities would  need to revisit their local plans as well as CIL charges which have been set at a level which had not taken into account the exemptions;
  • No transitional provisions were included to allow authorities a period within which to revise their policies and crucially the provisions were silent on the effect on existing policies.

The challenge was successful on a number of grounds, including inconsistency with and failure to take into account the statutory provisions for the adoption of local planning policies and the determination of planning applications, the failure to give sufficient reasons for the proposals during consultation and take responses into account and the failure to comply with the public sector equality duty under the Equality Act 2010.

The Court therefore quashed the relevant paragraphs of the NPPG and as a result they have been removed from the website.  This is a significant change given the recent introduction of these provisions and should be noted by all developers who may have been seeking to rely on them. A DCLG spokesperson has however indicated that the Secretary of State will be seeking permission to appeal so this may not be the final conclusion - watch this space!