The Growth and Infrastructure Act 2013 introduced section 106BA into the Town and Country Planning Act 1990 (the Act). Section 106BA established an application and appeal procedure, by which developers may require a review of (and so challenge) affordable housing provision sought as section 106 planning obligations – at least, in situations where such obligations would make development proposals unviable. Alongside this, a ‘sunset clause’ was also inserted into the Act. This meant that operation of the mechanism was scheduled to cease automatically on 30 April 2016.
As part of its Autumn Spending Review in November 2015, the Government noted its intention to introduce a more standardised approach to viability assessments for schemes under section 106. In addition, it announced there would be an extension of the appeal mechanism for unviable section 106 agreements until 2018. This commitment was subsequently repeated in a briefing note entitled ‘Planning Reform Proposals’, issued by the House of Commons on 15 February 2016.
However, in an announcement made today, it appears ministers have decided the mechanism will not be extended after 30 April. A spokesman from the Department for Communities & Local Government has announced: “The provisions were introduced as a temporary measure aimed at unlocking sites which had stalled because the planning obligation to provide affordable housing had rendered the development scheme unviable. Councils and developers have a number of options beyond section 106 (BA-106BC) for re-negotiating affordable housing obligations”.
At this stage, it seems that applications under section 106BA to challenge affordable housing provision can still be submitted to the relevant local planning authority until the end of April. However clarity on this, and whether any such application will still be considered, has not been forthcoming.