The Growth and Infrastructure Act, aimed at promoting growth and facilitating infrastructure, received Royal Assent on 25 April 2013. A number of sections in the Act amend existing planning and related Acts.

The Act includes provisions relating to the power to apply for a modification or discharge of affordable housing requirements in existing planning obligations under s106 of the Town and Country Planning Act 1990. Guidance has been published (1 May 2013) outlining these provisions.

Here, Wragge & Co's planning experts explain how the application system is likely to work in England.

An application may be made to the local planning authority requesting a revised affordable housing requirement. The application may be to modify, replace or remove the requirement for affordable housing and should be supported by a revised affordable housing viability assessment, based on current viability and backed by evidence.

The procedure for an application is in Annex B of the guidance. The application must state:

  • the applicant's interest in the land;
  • the current state of progress of the development;
  • evidence that the current requirement is unviable; and
  • give proposals for a viable scheme.

The applicant must also have previously notified all the signatories to the original s106 agreement.

The authority has 28 days in which to determine the application, although that period may be extended by agreement. In London, there is an additional requirement to notify the Mayor about the application if he was consulted on its original application. The Mayor is to notify the London Borough whether he wishes to make representations and has seven days to do so.

If the local planning authority refuses the application or fails to determine it, there is a right of appeal to the Secretary of State.

The guidance describes the viability test: Evidence should indicate that the current cost of the building or the whole development (at today's prices) is at a level that would enable the developer to sell the market units (in today's market) at a rate of build out which would make a competitive return to a willing developer and a willing landowner.

The developer will not be required to provide a new viability appraisal but to review the original assessment made at the time of the application. A revised appraisal should be based on current market conditions using the same methodology as the original. Changes in methodology should be explained. Annex A to the guidance identifies variables which could be relevant in a review of the viability assessment.