The impact for planners from a landmark affordable housing judgment

August 13, 2015

A landmark High Court ruling that the government remove planning practice guidance exempting small developments from affordable housing obligations will impact many schemes' viability and could alter the way ministers approach policy changes in the future. New planning guidance that exempts small sites from affordable housing obligations has been scrapped following a landmark High Court judgment. 

Mr Justice Holgate’s ruling, issued after a judicial review made by two councils in the south east, forced the immediate deletion of text in regard to the exemption for small sites – as well as the vacant building credit (VBC) – from the national online planning practice guidance (PPG). The removal of the guidance, added only at the end of last year, will have huge ramifications for applications currently in progress. It could mean that ministers alter the way they make changes to the planning system in the future.

The removal of guidance that prevented councils in most areas from requesting affordable housing contributions for applications of ten homes or fewer will impact "countless" schemes across England, said Jeremy Gardiner, regional director at consultancy WYG. "The immediate implication is that the ruling has undermined the financial viability of a large number of prospective housing developments," he said. "It will affect every scheme of fewer than ten dwellings that had assumed there would be no affordable housing element. You can assume that there will be schemes like that coming forward in every planning authority." 

Applications with section 106 agreements that are subject to review mechanisms may also be affected, as well as outline permissions where applicants are required to submit to a viability case at the reserved matters stage, according to Matthew Spilsbury, associate director at consultancy Turley. "There’s a risk that schemes that initially looked viable are suddenly going to take an additional hit on affordable housing," he said. "There are definitely going to be some deliverability issues. There might have to be some compromise." 

Trevor Ivory, head of planning at law firm DLA Piper, said the ruling will have an "immediate impact" on any developer in the process of making an application and negotiating obligations. "If section 106 obligations are under negotiation, local authorities may look to amend what they have been seeking," he said. Ivory added that local authorities or third parties may seek to mount legal challenges over permissions that have recently been granted with reduced section 106 packages. 

Gardiner suggested that options open to applicants with schemes affected by the ruling are to seek to revisit agreements with landowners or enter into negotiations with local authorities over section 106 packages. But he added: "That will take months to work through. It may mean that a reconfigured scheme can proceed, but it may mean that a scheme will stall altogether." 

The impact is also likely to affect local plan-making and Community Infrastructure Levy (CIL) schedules. Niall Blackie, senior partner at Midlands law firm FBC Manby Bowdler, said development plans in some areas will have been produced based on the quashed guidance. "They will need to be unscrambled and if they are adopted obvious questions then arise as to them no longer being consistent with national policy," he said. 

Some Councils may be pleased with the judgment. Sam Ryan, a director at consultancy Turley, pointed to Shropshire Council’s emerging plan, which she said relies heavily on windfall and small sites. The plan had been challenged on how it would deliver sufficient affordable housing under the quashed guidance, she said. She added: "Now it has been removed, the council will say it can rely on windfall sites."

Notwithstanding the above, the removal of the VBC, that gave developers the chance to offset floor area of empty buildings that had either been converted or developed for residential use against section 106 affordable housing obligations, will create both winners and losers, so says Spilsbury. Local authorities in high-value areas will probably be pleased by the deletion of the guidance as it is not likely to damage the delivery of projects, he says. But he adds that some councils will be less happy as the credit had unlocked "challenging" brownfield sites that had "suddenly become viable" after its introduction.

Responding to the High Court ruling, the Department for Communities and Local Government (DCLG) expressed its disappointment and said it would seek permission to appeal. But Ricketts said this prospect could create uncertainty and delay the progress of development. He said developers who negotiated draft section 106 deals on the basis of the VBC may wait for the appeal’s outcome before concluding discussions. Applicants affected by the removal of the ten-unit threshold may seek to do the same, he added. Ivory agreed, saying: "There is a risk that people with these sites may well decide to sit on them." 

Ricketts said the ruling "tells the secretary of state in capital letters that PPG is not a place for substantive changes to government policies". He added: "There are lessons for the way in which the government approaches the next round of changes to the planning system about complying with appropriate legal principles on consultation and then for the responses to consultation to be taken into account by the government conscientiously." 

Ivory added that, since the introduction of the PPG, there has been a "blurring between policy and guidance". He said: "I am concerned that policy is being announced by way of changes to the guidance. This case doesn’t quite tackle that point, but does seem to move in the direction of demonstrating the need for clarity." 

Mike Kiely, chairman of the board of the Planning Officers Society, said the ruling was a "shot across the bows of the DCLG". He added that the judgment makes clear that consultation responses should be examined "diligently" and given due response. "It’s not a tick-box exercise", Kiely said.

article by 7 August 2015 by Jamie Carpenter of Plannig Resource Magazine shared by Jonathan Braddick Architect Devon


Initiative Launched by Housing Minister with Industry Following CIC Report

March 13, 2013

A government industry working group is being set up to promote increased use of off-site prefabrication in house building. The working group has been launched by housing minister Mark Prisk following on from the findings of a new report produced by the Construction Industry Council (CIC). 

Issues for the group to review include:

  • encouraging off-site construction and prefabrication to deliver an increased number of new houses
  • promoting investment in the emerging sector
  • helping to create market con...

Continue reading...

Why is it Important to Use a RIBA Chartered Architect?

February 26, 2013

I am repeatedly asked why it is important to use an Architect, when sometimes it can be cheaper to use an un-registered plan drawer or architectural designer, what’s the difference?

To call oneself an ‘architectural designer’ you don’t necessarily need any formal qualifications or experience, whereas the title ‘Architect’ is protected by law and can only be used by people registered with the Architects Registration board (ARB), having gone through the relevant training and demonstr...

Continue reading...

Chief construction adviser Hansford puts BIM at centre of new construction strategy

January 24, 2013

New chief construction adviser Peter Hansford has stressed the importance of building information modelling (BIM) to the industry’s future. “BIM is a catalyst for a more collaborative way of working. It is a key agent for economic growth,” Hansford said at the launch of BIM2050 in London this month.

BIM2050 brings together 17 young construction professionals to consider future digital technologies, including BIM. Chaired by David Philp, head of BIM at Mace, BIM 2050 members include Rebec...

Continue reading...

Offices to homes conversions part of housing stimulus

September 16, 2012

The government has revived plans to allow the conversion of vacant office buildings to residential use, a flagship policy from last year designed to increase the pipeline of new homes that the coalition said subsequently would not be implemented following a hostile reaction to consultation.

The Government confirmed that it would not take the proposals forward in a ministerial statement issued by Communities Secretary Eric Pickles last week in support of the housing stimulus package.

Pickles say...

Continue reading...

Home Ownership Boosts Happiness

August 13, 2012

The UK’s first well being survey has revealed that owning your own home makes you more happy when compared with living in other tenures.

The survey, carried out by the Office for National statistics, found that 80% of people that owned their home outright or had a mortgage were of medium to high levels of satisfaction. This compared with only 68% of people that found satisfaction living in other types of tenure.

The research even found that ‘An individual’s housing tenure and the leve...

Continue reading...

Wales goes its own way on Part L, with more ambitious savings than England

August 10, 2012
The paths to zero carbon construction have begun to diverge for England and Wales, with Welsh environment minister John Griffiths launching a consultation on Part L of the Building Regulations that looks set to leave English proposals trailing behind.
The Welsh government has unveiled two options for strengthening Part L for new housing: either a 40% improvement on Part L 2010 from the start of 2015 or a staged 25% improvement in 2014 followed by an additional review two years later that would...

Continue reading...

Sunday Times Smart Home Competition Shortlist

August 8, 2012

The short list for the Sunday Times British Home Awards 'Smart Homes' competition have been released.

The competition is seeking integrated, interoperable solutions that demonstrate the application of digital monitoring and control systems in the home.

The panel of judges have selected a shortlist of 6 designs which are now open for your vote until midnight on August 13 2012 through


    • Street Smart: White arkitekter
    • S,M,L home: Pentan...

Continue reading...

Neighbourhood Planning

July 7, 2012
The Government has recently introduced new legislation, in the form of neighbourhood planning powers, that will allow local communities to have greater control over the look and feel of their area.

Planning is complex, and so the structures must be in place to ensure communities have the necessary support in this process. The profession has a key role to play in enabling the best outcomes from this policy initiative and we are looking to explore the ways in which to provide both the structures...

Continue reading...

Last Chance to Sign up for RIBA Architect in The House 2012

June 25, 2012

It is the last chance to sign up for the RIBA's 'Architect in the House 2012' and help to raise money for the Charity Shelter. Registration to the scheme closes on Monday 11 July, so if you or your friends or colleagues are considering signing up to the scheme, then now is the time. 

So far over 1,200 fellow RIBA architects have donated their time in support of Shelter and over 2,500 homeowners have signed up to Architect in the House 2012, raising over £200,000.00 for the charity Shelter. 


Continue reading...

Jonathan Braddick - RIBA Architects Devon

Jonathan Braddick Jonathan Braddick is a RIBA Chartered Architect based in Devon, in Exmouth near Exeter. Jonathan is Chairman of the South West Region of the Royal Institute of British Architects (RIBA) Jonathan is also founder and chairman of the Design Review Panel ( which provides impartially, independent, multidiciplinary design review / place review services to local authorities. In private practice, Jonathan offers a comprehensive Architects service: from conceptual design through to completion on site, and beyond. Jonathan practices throughout the South West and South East of England. Jonathan provides full Architect services across all project sectors and types, but his particular passion is for bespoke, ecologically sustainable, residential developments including: housing developments, individual house builds, conversions and high-end extensions for both developer and private clients. Jonathan Braddick is not just a designer, but has a strong focus on carrying projects through from inception to completion on site. Jonathan provides a high level of legislative and technical knowledge as well as specialist expertise in construction procurement and on site contract administration. Jonathan ensures that his designs respond to all relevant planning legislation, will comply with the building regulations, are constructionally cost effective and buildable on site. In house sustainability/energy efficient design is provided as a matter of course.

Copyright 2012  Jonathan Braddick  - RIBA Chartered Architect Devon    44a Waverley Road, Exmouth Devon EX8 3HJ    01395 265768