13th May 2016
Court of Appeal judgement provides hope to small-scale developers and brownfield redevelopment viability
On 11 May 2016, the Court of Appeal overturned an earlier High Court ruling in West Berkshire DC v Department for Communities and Local Government  EWCA 441. This Court of Appeal judgement upholds the lawfulness of a Written Ministerial Statement (WMS) issued by the Secretary of State in November 2014 which required small development sites to be exempt from the provision of affordable housing levies and tariff style contributions. It also introduced a vacant building credit to offset affordable housing contributions on brownfield sites.
The Court confirmed that the Written Ministerial Statement is a material consideration to be considered by decision makers, alongside development plan policies, when assessing planning applications. This may allow small sites of 10 units (five units or less in designated rural areas), or a combined floor space of 1,000 sq m or less, to be developed without requiring affordable housing levies or tariff style contributions.
The judgement may also prompt the reintroduction of the vacant building credit, allowing developers to offset vacant buildings being brought back into use or being demolished for redevelopment against affordable housing contributions.
It is therefore arguable that affordable housing policies adopted prior to the WMS could be considered out of date and the WMS should carry greater weight. For development plans examined and adopted after the WMS, the area is less clear until such time as the Government introduces the policy back into Planning Practice Guidance or more formally through updating the National Planning Policy Framework, a revised version of which is due in the Summer. It remains to be seen whether the Councils involved are granted leave to appeal to the Supreme Court or whether this is the final position.