The Planning Court has ruled that the NPPF cannot be used to set a threshold below which Section 106 payments must be made. The Government decided that – if a development was for 10 homes or less no payments would have to be made – it was previously set for payments to be triggered for 5 homes or less. The new ruling is effective immediately.
The claim was allowed on a number of grounds and sub-grounds including:
The policy, which was intended to create blanket exemptions, to have immediate effect and to override local plan policies was inconsistent with the statutory scheme;
The consultation process had been unfair and unlawful for two main reasons:
(i) It gave insufficient reasons for the policy proposal so as to allow intelligent consideration and responses (it failed to communicate that the motivation for the policy went beyond viability considerations);
(ii) It failed to take the product of the consultation (i.e substantive points raised by the responses) conscientiously into account.
There was a failure to take into account “obviously material” considerations when promulgating the policy, including the full implications for the supply of affordable housing land;
There was a breach of the public sector equality duty under section 149 of the Equality Act 2010. The impacts on disabled persons and ethnic minorities who disproportionately rely on affordable housing had not been considered when the policy was announced and this had not been cured by a less than rigorous post decision assessment;
and
Irrationality.
Following the judgment, the Government has announced that the relevant paragraphs of the NPPG [1] will be removed and this is now reflected on the NPPG website. Accordingly, with immediate effect, developers will be unable to rely on those paragraphs in negotiations as to affordable housing and tariff style infrastructure contributions. The vacant building credit will also no longer be applicable.
Report: Jeremy Wigley, No 5 Chambers
East Devon Watch 