Why confusion is growing over small sites exemption

Confusion surrounding the interpretation of the government's policy of exempting small sites from affordable housing contributions appears to be deepening with a raft of seemingly contradictory appeal decisions by planning inspectors.

Richmond Council: has written to the Planning Inspectorate to highlight lack of 'any logic' in decisions
Richmond Council: has written to the Planning Inspectorate to highlight lack of 'any logic' in decisions

A London borough has written to the Planning Inspectorate (PINS) to highlight a series of appeal decisions in which inspectors have apparently come to differing views on whether a local policy seeking developer contributions for affordable housing from small developers can be overridden by a recent written ministerial statement (WMS).

The confusion follows a Court of Appeal decision last May backing the 2014 WMS stipulating that affordable housing or tariff-style obligations should not be levied on small developments. However, the judges' decision also said local planning authorities should be free to develop policies contradicting it, if they can justify why.

The London Borough of Richmond's letter to PINS, dated 13 December, referenced four appeals in which inspectors' decisions had supported it in levying affordable housing on small schemes, and two in which inspectors had ruled the other way, even awarding costs against the council for acting "unreasonably" (see below).

The letter said the council is "particularly aggrieved" by the apparent lack of "any logic" determining why inspectors came to different views. For example, while one appeal decision gave "considerably lesser weight" to Richmond Council's policies "given they are now ... inconsistent with national planning policy (in the WMS)"; another found that the WMS "does not outweigh the significant and substantial weight which I attach to the local evidence of housing need".

Richmond Council's letter said: "All of these appeal decisions have been based upon very similar information submitted to PINS ... Although the decisions relate to different districts within the council's area there are no material differences in the planning considerations that apply to all of them." Andrea Kitzberger-Smith, planning policy manager at Richmond Council, said the borough had received no response from PINS. "The issue is creating uncertainty for everyone," she said.

This follows similar issues in Brighton & Hove, where inspectors recently ruled in favour of the council's affordable housing policy in one appeal, and against in another. Reading Council, which originally helped bring the legal case against the government's policy, has suffered two judgments against its policy and four in favour. A spokesman said the council "welcomes the clarification sought by the London Borough of Richmond".

Stuart Crickett, associate director at consultancy Turley, said the growing "frustration and concern" at planning authorities left the government's policy in a mess. "What we now have, in my opinion, is a level of uncertainty which ... is particularly unhelpful for small housebuilders and local planning authorities," he said, calling for a "swift review" and a "permanent solution".

However, action may be unlikely. The Department for Communities and Local Government declined to comment on the issue, while a spokesperson for PINS, when asked, did not say it was considering taking action. "Every appeal is determined on its own merits. We do not issue advice on the relative weight local authorities should attach to the WMS or their own local plan policies as this is a matter of law and judgment. The advice we give to inspectors in terms of weighing up issues is generic," the spokesperson said.

HOW INSPECTORS ARE AT ODDS OVER INTERPRETATION 

Two decisions in favour of the local development plan

1. Penthouse flat development, Teddington, Middlesex

Inspector ruled that WMS "does not outweigh the significant and substantial weight which I attach to the local evidence of affordable housing need" (DCS Number 400-013-602).

2. Development of nine homes, Ovingdean, East Sussex

Inspector ruled that, "on the basis of the evidence before me, I consider that the WMS does not outweigh the development plan in this instance" (DCS Number 200-005-991).

Two decisions in favour of the written ministerial statement

1. Ground floor rear extension, Twickenham, Middlesex

An inspector made a partial award of costs, finding that Richmond Council had "acted unreasonably in pursuing its reason for refusal in respect of the lack of a financial contribution for affordable housing" (DCS Number 400-014-196).

2. Development of nine flats, Hove, East Sussex

In a decision giving the go-ahead for nine flats above a business centre in Hove, an inspector said that he saw "no reason why the WMS ... should not apply" (DCS Number 400-013-602).


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