Modification to affordable housing requirement allowed under S106BC of 1990 Act

The removal of a 40 percent affordable housing requirement in a Section 106 Agreement for a 39 dwelling scheme in Oxfordshire was allowed on the grounds of updated viability information showing that only a 10 percent level was achievable. A modification was made under the provisions of S106BC of the 1990 Act, now repealed, before the deadline.

The main issue was held to be whether the 40 per cent affordable housing requirement set out in the S106 Agreement for the 39-house development made it unviable and if so, how it could be modified. The inspector noted that the scheme had already been started and so was not in danger of being stalled altogether.

The council maintained that a 35 percent target was still achievable but the appellant argued for an eight per cent level. The inspector carefully considered the detailed information of the analysis from both parties but generally favoured the appellant's approach except in relation to statutory fees and developers' profit on the affordable element, both of which she thought should be lower than the appellant argued. In concluding, the inspector allowed the removal of the 40 per cent requirement but inserted a new schedule requiring four two-bed shared ownership units.

Inspector: Christina Downes; Hearing

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