New Dawn Homes Limited v Secretary of State for Communities and Local Government & Tewksbury Borough Council [2016] EWHC 3314 (Admin)
The High Court in New Dawn Homes Limited v Secretary of State for Communities and Local Government & Tewksbury Borough Council [2016] EWHC 3314 (Admin) recently considered the aforementioned council's local plan policy on affordable housing provisions. Specifially, whether the site against which the affordable housing threshold was calculated was restricted to the site of the planning application. Whilst the case was specific to the interpretation of the local plan in questions, it provides useful guidance as to possible issues when interpreting similar provisions in local planning authority's development plans.
Policy HOU13 of Tewksbury Borough Council's local plan provided that they:
"Will seek to negotiate with developers for the provision of an element of affordable housing on sites of 15 or more dwellings or on sites in excess of 0.5 hectare. Within settlements with a population of 3,000 or fewer, the threshold will be 5 dwellings".
The explanatory text for Policy HOU13 included the following:
"An application for planning permission for development which forms part of a more substantial potential development on the same land or adjoining land, will be treated as an application for planning permission for the more substantial development".
The case related to the residential development of the former carpark and beer garden at Kinds Head Inn Norton. The Claimant had secured planning permission for 4 dwellings over the former carpark. Permission was granted by the council in 2013 without affordable housing as the development was for only 4 dwellings.
The Claimant then made a planning application for 4 dwellings on the former beer garden in 2014. The council argued that the two sites should be considered together, and that when considering this planning application the threshold of Policy HOU13 was engaged. The Claimant disagreed but to avoid delay entered into a s106 planning obligation for an affordable housing contribution and permission was granted in 2015. A revised planning application over the former beer garden was subsequently submitted. The Claimant refused this time to enter into a planning obligation and the council accordingly issued a refusal. On appeal the Inspector agreed with the council's interpretation of Policy HOU13 and dismissed the appeal.
The Court found that the work 'sites' was not defined in the policy and that it was not restricted to an application site. Holgate J stated that its extent was a 'planning judgement' on a case by case basis as to whether the application site was part of a wider single site for planning purposes or a single development (such judgement challengeable on grounds of irrationality). The explanatory text was not (nor could be) a policy in itself but it did help in elucidating the language of the policy. The appeal was dismissed.
Interestingly, Holgate J noted the following scenarios as within Policy HOU13:
- Where an application site was for 14 dwellings but the council justifiably considers the site has capacity for 15 (or more) dwellings then he did not consider that the decision maker should be bound under the policy 'to treat the site as being a site for 14 houses'. It was a question of planning judgement (although no doubt such scenario would raise other 'non-affordable housing' material planning considerations); and
- The aggregation of sites can be applied under the policy both (i) prospectively (i.e. where no residential planning permission has been granted on part of the wider single site); and retrospectively (i.e. where residential planning permission has already been granted on part of such wider single site).
On an aside, the Written Ministerial Statement dated 28 November 2014 and the National Planning Guidance (relating to the 10 or less unit threshold for affordable housing and other tariff planning obligations) contains no specific reference to 'application sites' within its guidance. It therefore is unlikely to be an aid for developers.
Lesson: On small scale residential developments, that may form part of a larger site, applicants and their advisors will need to consider carefully the wording of the local planning authority's policy on affordable housing (and other infrastructure policies) within the development plan. With the pressures on affordable housing it is likely councils will give greater attention to the planning merits as to whether there is a wider site (prospectively or retrospectively) for which the planning application site may form part.
