Under a clause in the Growth and Infrastructure Act that came into force in April, developers can now appeal to the Planning Inspectorate (PINS) if they believe the affordable housing requirement made as part of a section 106 planning gain agreement renders a scheme unviable.
The Act gives developers a three-year window in which they can appeal to PINS to vary affordable housing levels if the local authority does not modify the planning obligation as requested, or fails to decide within 28 days.
According to PINS, the first three schemes to use the new system are: a 151-home Redrow Homes development in Holsworthy, Devon; the demolition of a farmhouse and the building of 14 new homes in Redruth, Cornwall; and a 100-home residential tower in Woolwich, south London.
In the first case, housebuilder Redrow has appealed against Torridge District Council's failure to determine in time its request to modify the agreed affordable housing requirement. The appeal relates to a scheme granted outline permission on appeal in May 2010 for 141 homes. In July last year, Redrow gained consent to increase this to 151 homes.
According to the appeal application, at the time, Redrow agreed with Torridge Council that it would provide at least 40 per cent affordable housing, equating to 60 homes.
But the PINS application states that Redrow now wants to provide an affordable housing level of 20.5 per cent, or 31 homes. It has submitted a appraisal stating that 40 per cent is "unviable" in the present market.
Gavin Hill, technical director at Redrow Homes, said: "The development could be mothballed if the affordable housing is not reduced."
Hill said that, following the hearing last week, Redrow expected to hear a decision by the end of November.
The second appeal, which is yet to be heard, relates to an outline permission refused by Cornwall Council in March 2011 but allowed on appeal in July that year.
According to the council, the applicant was required to provide four affordable homes of the 14.
But planning consultant Stephen Payne said his client now sought to remove all affordable housing requirements from the development and the appeal application was backed up by a viability assessment.
Payne said: "The site has been valued and offered for sale since 2011 - no takers because all interested developers say that the scheme is unviable."
The Woolwich scheme, called Mast Pond Wharf, involves the redevelopment of the South East London Aquatic Centre site to create a scheme including a 16-storey tower of 100 flats. According to PINS, the appeal application was only validated last week.
Full permission was granted by the London Borough of Greenwich in January with the developer, Mast Pond Wharf Limited, agreeing to provide 20 affordable homes.
The council's report on the planning application states that the developer agreed to provide 20 per cent affordable housing.
Acting on the applicant's behalf, Daniel Drukarz, a partner at Asserson Law Offices, said his client had applied to PINS to remove the affordable housing component entirely.
Drukarz said the scheme could not afford the level agreed at the time of consent and, in the time since, the area's "financial landscape has not improved".
A PINS spokesman said the agency had estimated that about 100 appeals would be heard over the three-year period. "We weren't expecting a huge number to come in," he added.
Marnix Elsenaar, head of planning at law firm Addleshaw Goddard, and Rebecca Warren, a Pinsent Masons legal director, both said they were not surprised that only three appeals had been lodged so far.
Warren said: "These things take time for people to get their documentation ready for the appeal and for people to get to grips with the new route."
Elsenaar said he did not expect the process to be used by developers that much, because of both the time and cost involved and the desire to maintain a good relationship with the local authority.
Pippa Read, policy leader at the National Housing Federation, said: "Although there have been few appeals up until now, we would be concerned to see an influx as there is little evidence that affordable housing requirements are genuinely holding back developments."
A new faster planning appeals process has received 43 applications so far, says the Planning Inspectorate (PINS).
A number of changes streamlining the system for processing appeals were introduced on 1 October.
Under the new system, appellants must submit a full statement of case at the start of the process.
PINS has promised to hold 80 per cent of hearings in 10 weeks and 80 per cent of oneto two-day inquiries in 16 weeks. PINS said that, as of Tuesday, 43 appeals had been submitted which qualified to be heard under the new system as they related to planning decisions made after the start of last month.
Sir Michael Pitt, PINS' outgoing chief executive, told Planning: "The first signs are very encouraging."