An appeal decision threatens to further muddy waters that we’re only just clearing following the Court of Appeal’s decision in ‘West Berkshire’ last May. Tom Newcombe summarises the current position and considers its impacts.

A ministerial statement in November 2014 established that sites of less than 10 units /1000 sq metres should not attract affordable housing. The High Court subsequently ruled that this statement was unlawful but its judgment was in turn overruled by the Court of Appeal. In the ever-changing world of planning law one thing now seemed clear – these small sites should not have affordable housing requirements imposed on them – and the National Planning Practice Guidance (NPPG) was updated accordingly. This also seemed to chime with other elements of the Housing and Planning Act and other policy / guidance differentiating between small sites and larger sites, with 10 units being the chosen dividing line. However, the Court of Appeal decision did allow for local planning authorities (LPAs) to develop new contradictory policies if they could justify it.

The current decision (APP/WO530/W/16/3142834) relates to an application for eight two-storey dwellings at Oakington in South Cambridgeshire and affordable housing was one of the issues considered. The Inspector Kevin Gleeson dismissed the appeal and refused permission for the development, largely on Green Belt grounds. However, in view of evidence presented on the local need for affordable housing; and the viability of the site, he also took the view that the development should comply with the existing Local Plan policy HG/3 requiring 40% affordable housing, in spite of the ministerial statement, and its support in the courts.

This could be seen to be a rogue decision based on particular circumstances, however there are other decisions such as Elmbridge, where a similar line has been taken. Planning allows a very wide discretion to its decision makers and it could be difficult to show that this decision was irrational or perverse, particularly given the ministerial statement is guidance, not policy or law. However, it does add further uncertainty to an area of planning policy which has flipped back and forth over three years now - irritating to developers and LPAs alike, and such uncertainty can hardly help the government’s agenda to get more houses built quickly. Surely it is time for a definitive policy clarification?