Court of Appeal decision provides viability hope for developers of small sites article banner image

Yesterday, the Court of Appeal handed down judgment backing the government’s small site thresholds for affordable housing contribution and other tariff based contribution exemptions, and the vacant building credit policies ‘intended to tackle the disproportionate burden’ of such factors on small scale developers.

The decision overturns the decision of Holgate J in the Administrative Court on 31st July 2015, on a claim for judicial review brought by two Local Planning Authorities who had concerns about the consequences for future delivery of affordable housing.

The Minister of State announced the small site exemption in the House of Commons by way of a Written Ministerial Statement on 28 November 2014. On the very same day the National Planning Practice Guidance was amended. Holgate J held that a planning policy promulgated by the Secretary of State in a Written Ministerial Statement made in Parliament on 28th November 2014 was unlawful and granted a declaration accordingly.

The policy exempted developments of 10 units or less (and below 1000 sqm) from affordable housing and other tariff based contributions. Lower thresholds applied in designated rural areas, with developments of 5 units of less being exempted. Furthermore where a vacant building was brought back into use, or where the building had been demolished for redevelopment, a credit equivalent to the floorspace of the vacant building would be set against contributions.

At first instance the judicial review claim succeeded on four grounds (i) inconsistency with the statutory scheme, (ii) failure to take into account material considerations (iii) inadequate consultation and (iv) breach of the public sector equality duty.

The Court of Appeal allowed the Secretary of State’s Appeal on all grounds. The detailed judgement provides analysis on the formulation of central government promulgating policy and how that fits within the planning statutory regime.

Sarah-Jane Williams, associate in the planning team at Stephens Scown says “The decision of the Court of Appeal will be a welcome boost to small developers, making many stalled developments viable, however the battle may not be over yet. Yesterday’s decision may be the subject of a further appeal to the Supreme Court as the two Councils are concerned by the potential ramifications upon the delivery of affordable housing. It is also important to remember that the original policy was withdrawn following the 31st July 2015 decision and currently the policy does not exist. It will be interesting to see whether government will reintroduce the previous policies that have caused the recent controversy in the same form. Developers of small sites should consider whether to offer such contributions before any new government policy is introduced and seek advice if necessary”.


Stephens Scown’s planning team are holding a spring/summer planning update in June – to find out more and to register, please contact us.