Legal Viewpoint: Affordable housing victory for government on appeal

On 28 November 2014, planning minister Brandon Lewis issued a Commons written statement setting out government policy on excluding developments of fewer than ten units - five in designated rural areas - or less than 1,000 square metres from affordable housing contributions.

He also announced a vacant building credit, to be calculated against the gross floorspace of vacant buildings that are renewed or demolished as part of development and deducted from the overall affordable housing contribution.

These policies were reflected in amendments to Planning Practice Guidance (PPG). West Berkshire Council and Reading Borough Council challenged the policies on a number of grounds, including that the "blanket" wording of the statement was inconsistent with the statutory planning regime and the National Planning Policy Framework.

Last July, the High Court allowed their claim and declared that the statement was unlawful. It was withdrawn by the secretary of state and the policies were removed from PPG.

Earlier this month, that judgment was overturned by the Court of Appeal. The court found that the statement was not to be faulted for using unqualified language, or for not making clear that its place in the legal regime was as no more than a material consideration. It held that the statement did not frustrate effective operation of the legislative scheme and that the High Court judge had wrongly conflated what the policy said with how it could lawfully be deployed.

On the day of the judgment, the secretary of state issued a press release stating that the ruling "restores" the ten-unit affordable housing threshold. On 19 May, PPG was amended to reintroduce both the ten-unit threshold and the vacant building credit.

In the meantime, the judgment is of great value for developers of smaller residential sites who wish to resist affordable housing contributions. For local authorities, it heightens the challenge of meeting the need for affordable housing, and creates more pressure on sites of 11 or more dwellings to deliver contributions. Several authorities have now adopted policies that conflict with the 2014 statement, so further disputes and appeals are likely. Meanwhile, Reading and West Berkshire Councils may apply for permission to appeal to the Supreme Court, so the vexed history of these policies may not yet be concluded.

R (West Berkshire Council) v Secretary of State for Communities and Local Government; Date: 11 May 2016; Ref: [2016] EWCA Civ 441

Zack Simons is a barrister at Landmark Chambers

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