Following the Court of Appeal decision which resulted in the re-introduction of the guidance on exempting small sites from a requirement to provide affordable housing, it may be appropriate to examine planning obligations that were either entered into prior to the introduction of the guidance or in the period between the withdrawal of the guidance in August 2015 and its re-introduction in May this year.

A small site may be subject to a planning obligation to either provide affordable units on site or to make an off- site affordable housing contribution. Those provisions may make the site difficult to market or prevent a start on site being made.

If you are seeking to remove the affordable housing obligation then there are potentially three ways to approach it.

Negotiation/Application to vary a planning obligation

If the obligation is contained in a planning obligation of less than five years old then , you can seek to negotiate with the Council that the obligation should be removed as due to the change in guidance the obligation is no longer appropriate. The likely stance of the Council will be that it is not prepared to agree a variation as it would in effect be giving up either affordable Housing or an in kind contribution.

The Second way to approach it under a variation to a planning application is if the obligation is contained in a document which is at least 5 years old, then there is a statutory right to make an application to the Council to have the obligation removed. The grounds of such an application would be that the obligation no longer serves a valid planning purpose, as it no longer complies with current guidance. The Council are required to determine the application and in the event of a refusal there is a statutory right of appeal.

Make an application under s 73 of the Town and Country Planning Act 1990

These application are commonly made to make alterations to design or the type and nature of dwellings already approved , or to seek to remove or substitute a planning condition. It may be appropriate to consider whether such an application can be made , as it requires the Council to consider the up to date Development Plan and material considerations when determining the application. This will require a consideration of the recently introduced guidance and on that basis for a small site, no affordable housing contribution should be required.

If approved the application will result in a new freestanding consent , with the original commencement date, but may not be accompanied by an affordable housing requirement, which will benefit the scheme.