Clarification from PINS will not end uncertainty on small sites policy, by Jamie Carpenter

More than two years after former planning minister Brandon Lewis issued a controversial written ministerial statement (WMS) exempting small sites from affordable housing obligations, could a letter from the Planning Inspectorate (PINS) finally clear up how much weight should be attached to the policy?

Lewis’s statement, issued in November 2014, was intended to help small builders by imposing a blanket exemption from affordable housing obligations for sites of ten homes or fewer.

The policy was quashed in 2015 following a successful High Court challenge by Reading Borough Council and its neighbour West Berkshire Council. But last May, Mr Justice Holgate’s judgment was overturned by the Court of Appeal, and the small sites exemption was subsequently reintroduced into national Planning Practice Guidance.

Since then, the picture has been one of frustration and confusion. Town halls and applicants alike have expressed their exasperation over a series of appeal decisions in which inspectors have apparently come to differing views on whether local policies seeking developer contributions for affordable housing on small sites can be overridden by the WMS.

Now, however, PINS has taken steps to clarify how the WMS should factor into the balancing exercise with development plans. In a letter to the London Borough of Richmond upon Thames - which had written to PINS before Christmas to complain over the apparent lack of "any logic" in inspectors’ interpretation of the policy - the inspectorate said that the WMS should not automatically outweigh local policies.

The contents of the letter, revealed exclusively last week by Planning, said that an approach in which considerably lesser weight is afforded to relevant local policies because they are now, in part, inconsistent with national planning policy, "is arguably not an appropriate one, as the effect of the WMS was not to reduce the weight that should be given to the statutory development plan, or automatically to outweigh relevant development plan policies".

The letter said that the WMS "comes into play as a material consideration which post-dates the plan, and which has to be balanced against the plan and the evidence base supporting the local planning authority's application of the policy".

It added: "The decision-maker therefore has discretion in applying his or her judgement as to where the balance should lie, drawing on the evidence presented."

So does this clear up the confusion over the policy? Not really. On one level the letter is helpful in that it sets out clearly PINS’s position that the WMS does not automatically outweigh local policies.

However, in making clear that the weight to be attached to the WMS is down to the decision-maker, PINS’s letter will not in any way herald an end to scraps between authorities and applicants over whether small builders should stump up affordable housing contributions.

It is some achievement for a government statement intended to reduce burdens on small builders to remain a source of considerable confusion nearly two-and-a-half years later.

Jamie Carpenter, deputy editor, Planning //

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