In May 2016, the Court of Appeal ruled that the policy set out in a Written Ministerial Statement (WMS) from 2014 was not unlawful. That Written Ministerial Statement provided that affordable housing contributions should not be sought on sites of ten units or fewer, which have a maximum combined gross floor space of 1,000 square metres.

At the end of July 2017, appeals for the conversion of a former residential home (Class C2) into two houses, or, alternatively, four flats and one house, were dismissed. The council's Affordable Housing Small Sites Contributions Supplementary Planning Document 2012 (SPD) set the level of contribution at £50,000 per additional dwelling unit. This is what the council had requested.

However, the appellant argued that the WMS should supersede the council's adopted Core Strategy Policy CS12 and the SPD. As such, they argued, an affordable housing contribution should not be required as the development was of ten units or less.

So can affordable housing contributions still be sought for small developments?

The Inspector in the appeals was clear that the WMS did not alter the requirement of section 38(6) of the Planning and Compulsory Purchase Act 2004. Section 38(6) provides that planning applications should be determined in accordance with the development plan unless material considerations indicate otherwise.

In this case, it was made clear that although the WMS was a material consideration to which substantial weight should be attached, the appellant had failed to provide any viability assessment that challenged the council's requirement for a contribution at the level sought.

As the appellant had failed to provide a planning obligation securing the contribution sought, the appeals were dismissed.

The case is useful in highlighting the current position in relation to affordable housing contributions. Contributions can be sought whatever the size of the development. Developers of small sites must ensure that where there are up to date adopted policies requiring contributions on sites of ten dwellings or less, they can challenge the basis on which a contribution is sought. This will include a viability assessment.