We look at the High Court's decision to quash practice guidance excluding small developments from affordable housing requirements and introducing a vacant building credit.


The High Court in R (on the application of West Berkshire District Council and Reading Borough Council) v Secretary of State for Communities and Local Government has quashed changes to the government's national planning practice guidance, introduced in November 2014, as part of the government's reforms intended to increase housebuilding.

  • The guidance provided that developments of ten units or fewer should be excluded from the requirement to provide affordable housing or the imposition of other tariff style infrastructure requirements. The rationale behind the announcement was to cut the costs of bringing forward small developments and provide a boost to small and medium developers which in recent history have seen a dramatic decline in their market share, particularly since 2008.
  • In addition, the High Court also quashed the government's vacant building credit policy. The credit applied to vacant buildings brought back into use or demolished and replaced - the relevant floorspace could be deducted from new floorspace being provided in calculating affordable housing requirements.

Many local authorities opposed the policies as reducing their ability to achieve affordable housing targets, particularly those authorities which depended on many small sites for their housing land supply.

In the landmark High Court case, Justice Holgate found for the claimant authorities. He held that the policy, intended to override local plan policy, was inconsistent with the town and country planning scheme set out in statute. The consultation process was unlawful and unfair - proper reasons for promoting the policy were not given and the outcome of the consultation was not adequately considered.

It is understood the government will seek permission to appeal this decision and a swift resolution is desirable.

Some applicants for planning permission now find themselves in a position where planning guidance has changed significantly during the determination process and policies requiring significant contributions to affordable housing are being applied.

Authorities also require certainty as to government policy on these issues in bringing forward their local plans and setting their community infrastructure levels.