RE: New Guidance on s106

2015-08-04T08:47:39Z

There's a new thread on this judgement at All NPPG affordable housing thresholds and exemptions have been quashed https://khub.net/group/planningadvisoryservicepas/forum/-/message_boards/message/15824398 with link to the court judgement http://www.bailii.org/ew/cases/EWHC/Admin/2015/2222.html - tho looks like DCLG are intending to appeal it!

RE: New Guidance on s106

2015-08-04T08:20:30Z

Judical Review complete and the judgement in quashing affordable housing thresholds and vacant building credit

RE: New Guidance on s106

2015-01-26T12:27:15Z

Further to Bryan's mention of a judicial review, a housing colleague's just sent me this article from his daily regional housing news - http://us5.campaign-archive2.com/?u=91cb73bca688114fefed773f2&id=bdfe92e06c&e=bc83f4199f

Council ditches government planning guidance in favour of its own policy

A district council is to challenge government guidelines which limit the amount of affordable housing required on small developments.

Richmondshire District councillors voted on Tuesday, January 19, at a meeting of the authority's corporate board, to give their own planning policy more sway over government guidance because members believe all developments should make a contribution to affordable housing.

The decision comes after Minister for Housing, Brandon Lewis MP, announced last November that the government would be lifting the burden of developer contributions on small scale schemes – so there would be no need for affordable homes to be included on sites of five houses or less.

But the decision – which now forms part of National Planning Policy Guidelines – runs against the terms of the newly-adopted Richmondshire Local Plan Core Strategy, which expects developers to make a contribution to affordable homes even if they are building just one house.

After taking advice from a leading QC, and gaining evidence that contributions on small sites would not make smaller developments unviable, councillors voted to give their policy more weight during the decision making process.

Callum McKeon, the authority’s corporate director and solicitor, said: “We are aware that we need to take government guidance into account in our decision making but this guidance would have effectively undone an evidence-based policy that has been rigorously tested through a public inquiry – and which was designed to improve the housing situation for those on lower incomes living in the district.

“It was vital that we tested our own legal position, and we are delighted that our conclusions have been supported by one of the leading QCs in the country.”

Cllr Jane Parlour, chairman of the planning committee, added: “If we had implemented the new government guidance as it has been handed down to us it would have blown our affordable housing policies clean out of the water, leaving us unable to help the young families we know are having difficulties being able to live locally in the district.

“Now we are able to take their needs into account again when making our planning decisions.”

Council leader Cllr John Blackie added: “The Government guidance had an even more draconian impact in the Yorkshire Dales National Park.

“The Local Government Association is challenging the guidance and has arranged a meeting with the minister in February.

“A U-turn may well be on the cards – I hope so.”

RE: New Guidance on s106

2015-01-22T09:35:50Z

I watch with interest - it would be good to get a Judicial view

RE: New Guidance on s106

2015-01-22T09:22:21Z

In case you have not heard Reading and West Berkshire Council have sought a Judicial Review of the Ministerial Statement of the 28th November. Ref (C/76/2015)

Grounds of appeal - Break of Consultation Regulations, Lack of SA/SEA, State Aid and Irrationality

RE: New Guidance on s106

2015-01-21T20:03:19Z

If I have the right end of the stick - you are referring to the bit in the ministerial statement ( or guidance) which states..’affordable housing and tariff style contributions should not be sought…’ It does not state cash or financial contributions should not be sought. I read it as 'Contributions' is a catch all for both on site provision and financial payments towards off site provision.

RE: New Guidance on s106

2015-01-05T16:45:47Z

Thanks Andrea.

I read the sentance 'no affordable housing or tariff-style contributions should then be sought from these developments' as meaning- no contributions towards affordable housing or tarrif style contributions should be sought

I can however see how this sentence could be read as:

'no affordable housing, or tariff-style contributions should then be sought from these developments'

But the guidance clearly relates to financial contributions rather than general provision of affordable housing. I cannot see why, for example, securing a unit of affordable housing on site by way of planning condition, would breach this guidance, as no s106 or financial contribution would be involved.

Maybe Government will eventually release some further guidance on how to interpret their new guidance.. perhaps in a letter to their Inspectors?

RE: New Guidance on s106

2015-01-05T16:23:03Z

Jonathan - it's all linked via the PAS S106 page about the November 2014 changes http://www.pas.gov.uk/web/pas1/s106/-/journal_content/56/332612/6783401/ARTICLE - the ministerial statement states that under the stated thresholds "affordable housing and tariff style contributions should not be sought" and refers to them as "changes in national planning policy", and the PPG changes state "no affordable housing or tariff-style contributions should then be sought from these developments." However, note the use of the word 'should' rather than 'must' which suggests a potential degree of flexibility in that you don't have to religiously abide by it (eg. if your local circumstances and evidence base justify otherwise?)!

RE: New Guidance on s106

2015-01-05T15:49:48Z

It's certaintly made things more complicated and there is condusion in relation to the weighting to be attached to the Ministerial Statement and Guidance in the absence of any amendment to the NPPF.

Having looked at the Ministerial Statement and the new PPG guidance I cannot see any reference to restricting on-site provision of affordable housing. It appears that the guidance only relates to financial contributions towards off-site provision. If there is any reference to on-site provision please direct me to it!

RE: New Guidance on s106

2015-01-05T15:31:32Z

Jonathan - the changes seem to apply to all S106 planning obligations for affordable housing, so for developments of under 11 dwellings (or under 6 in legally designated rural areas, etc.) we can seemingly no longer seek either a proportion of on-site affordable provision or in-lieu financial contributions towards alternative off-site provision.

All this is immensely frustrating and unhelpful for local authorities, public and developers alike, and is defeating one of the fundamental aims of the NPPF which was to bring all planning policy together in one simple accessible place, and in the process getting rid of all the ad hoc circulars and Chief Planner letters! Yet they all seem to now be coming back in the back door through ad hoc largely unconsulted ministerial statements and speeches - we got another one just before xmas in relation to SuDS too! It's already unhelpful that the separate planning policy statements on travellers and waste, as well as the NSIP National Policy Statements and the MMO's Marine Plans, aren't linked alongside the NPPF on the Planning Portal's NPPF/PPG webpage (note they got rid of the 'National' from the draft NPPG terminology so it's all just PPG now, just a personal bug-bear of mine!). If this online resource is going to be of genuine use then these all need to be linked together here, making clear the distinction between what's genuinely policy that we have to abide by unless otherwise justified by local circumstances/evidence (principally the NPPF) and what's advisory guidance with a lesser degree of weight in plan-making decision-taking processes (the PPG)!

Rant over ...for now!

RE: New Guidance on s106

2015-01-05T13:41:42Z

It appears that there is a discussion to be had as to the weighting of a Ministerial Statement and a guidance update vs, for example, the weight which should be applied to an up to date formally adopted local plan policy. As there has been no update to national planning policy (the NPPF) it appears that local policy could outweigh a Ministerial Statement and a guidance update in some cases.

Is it correct that the guidance only relates to s106 contributions for off-site affordable housing provision, and does not relate to on-site provision of affordable housing? E.g. if a local plan policy required that a 5 unit scheme provides 1 unit of affordable housing on site, this would not conflict with the guidance, as the guidance relates to s106 contributions for off-site affordable housing provision?

RE: New Guidance on s106

2014-12-16T14:42:46Z

I think you misunderstood me - it is government policy- you have got to apply it now- or more precisely from the date of the ministerial statement 28th Nov 2014. You have got to apply what was said in the ministerial statement and the PPG is the guidance to that. However, the statement and PPG currently leave a great deal of discretion on details for LPAs - but it doesn;t mean that LPAs can choose not to implement the policy change.

RE: New Guidance on s106

2014-12-16T14:02:26Z

Gilian ....i think the fundemental point is being missed here. Its policy but you can implement it how and when you feel like it ......is not a sound way to conduct national planning, so LPA a) who have implemented actualy don't have to .......its a free for all. So when an applicant asks 'do i have to pay?', the answer is 'who knows?'

RE: New Guidance on s106

2014-12-16T13:50:32Z

The Ministerial statement and current guidacne are in force, local authorities should be implementing it but local authorites can make their own decisions within that guidance on how to implement the changes. But DCLG have said at our event last week that they were looking at giving 'more' guidance on approach to measurement- and that that would be Gross Internal Area. My comment is that it will take them some time(?) to get that change agreed and put in the guidance on line.

RE: New Guidance on s106

2014-12-16T13:26:31Z

ok.......so is it in force? because i estimate around 40% of the LPA,s ive talked to are saying 'not' and are actually waiting for an announcement to say it is

RE: New Guidance on s106

2014-12-16T09:44:23Z

They said they would add in details on measuring the floorspace and indicated Gross Internal as Rob said - I cannot see them issuing a statement but it will be changes to the guidacne and I doubt it will be speedy!

RE: New Guidance on s106

2014-12-16T07:59:00Z

I understood that the Dpt of Communities was going to issue a statement clarifying implementation, I take it that's not happened?

RE: New Guidance on s106

2014-12-15T11:20:54Z

As a side point - CLG officers suggested at a (very useful) PAS seminar on Thursday that the NPPG would be updated soon to clarify that the 1,000sqm should be measured in terms of Gross Internal Area (GIA), to be in line with CIL, instead of any other measure such as Gross External Area (GEA).

RE: New Guidance on s106

2014-12-15T10:55:03Z

NPPG seems clear. Para 22.

Where there is an overall increase in floorspace in the proposed development, the local planning authority should calculate the amount of affordable housing contributions required from the development as set out in their Local Plan. A ‘credit’ should then be applied which is the equivalent of the gross floorspace of any relevant vacant buildings being brought back into use or demolished as part of the scheme and deducted from the overall affordable housing contribution calculation.

In this case the full scheme (excluding demolition) does not meet the criteria for exemption from S106 contributions.

You need to establish the contributions from the full scheme and the contributions from the to be demolished floorspace. The difference would be the starting point for discussions with an applicant. In principle therefore you are only anticipating a contribution from additional floorspace.

If your S106 contributions are normally based on floorspace then the calculation should be straightforward, otherwise I presume some proxy method would have to be used for example turning the floorspace to be demolished into a rough number of units?

RE: New Guidance on s106

2014-12-12T16:54:50Z

Here's one for your thoughts.

A scheme is less than 10 dwellings but has a combined gross floor area of over 1000 sq m. In that respect you can rightly negotiate for a contribution. However, if this scheme was to involve the demolition of an existing dwelling with a vacant building credit which would take it back under 1000 sq m, can you negotiate. Example below:

Scheme of 9 homes with combined gfa of 1100 sq m.

Original building is demolished which had a gfa of 150 sq m.

The net increase is therefore 950 sq m.

Does this mean you can either (a) negotiate a financial contribution based on the net 950 sq m increase; or (b) not negotiate.

Thanks