New Guidance on s106 - Public forum - Planning Advisory Service (PAS) - Knowledge Hub

Planning Advisory Service (PAS)

Open group | Started - July 2012 | Last activity - Today

New Guidance on s106

Former Member, modified 9 Years ago.

New Guidance on s106

The response to the Govt consultation on s106 has been issued- and the associated changes to the planning guidance. S106 contributions for Affordable housing or tariff style contributions on 10 or less houses should not be sought ( exception in designated rural areas LAs might choose a lower threshould of 5 or less). Also Affordable housing contributions are sought for net increase in floorspace when bringing back vacant building or demolished for redevelopment- except where vacant building has been abandoned.

http://planningguidance.planningportal.gov.uk/blog/guidance/planning-obligations/ - several paragraphs change see paragraphs 12-23.

s106 s106 affordable housing s106 tariff

Former Member, modified 9 Years ago.

RE: New Guidance on s106

Does anyone know if this is from immediate effect or April 2015?

Former Member, modified 9 Years ago.

RE: New Guidance on s106

As it is in the NPPG and so now guidance it must surely apply to any decision issued after yesterday.

We are assuming that from yesterday it over-rides our Core Stratetgy policy to seek affordable housing on developments of 3 or more dwellings in settlements of less than 3000 population - and the same must apply to the advice on no tariff style contributions.

Alison

Former Member, modified 9 Years ago.

RE: New Guidance on s106

I phoned both PINS and CLG yesterday as we were called by a developer within a few hours of the announcement. Their advice is that it is implemented as of now. It is for us to weigh up the guidance versus our Development Plan. We think this means in our case that we will loose all affordable housing contributions on sites of 10 and less and our locally operated tarrif. It would appear that a Core Strategy with an adopted policy (albeit slightly dated) that has been evidence based and been through examination can be dismissed in one simple change to guidance.

Andrea King, modified 9 Years ago.

RE: New Guidance on s106

Enthusiast Posts: 76 Join Date: 19/08/13 Recent Posts

But it is just guidance, not legislation and not having the same weight even as a material consideration as NPPF (which PINS have previously advised has almost as much weight as adopted development plans), so surely it can't outweigh and nullify any extant evidence-based statutorily adopted DPDs! Rather it's simply advisory guidance that should inform emerging Plans and DPD reviews - if your evidence justifies something otherwise for your local area then why not stick with that?

Former Member, modified 9 Years ago.

RE: New Guidance on s106

This is more than guidance it is now government policy as it was announced By Brandon Lewis, Housing and Planning Minister in the 'House' on Friday. So it is just like the NPPF and has as much weight as the NPPF- so my suggestion is read about it on the PAS web site- http://www.pas.gov.uk/s106 - then print 2 copies of the PDF of the ministerial statements (Hansard) staple one into that back of your hard copy NPPF and laminate the other and put it on the wall ( for when you can't find the NPPF!). I

Andrea King, modified 9 Years ago.

RE: New Guidance on s106

Enthusiast Posts: 76 Join Date: 19/08/13 Recent Posts

If it's policy then shouldn't it be a fully consulted on proposed amendment to the NPPF (or parallel formal policy like they've done for travellers and waste planning), not just slotted in as part of Planning Practice GUIDANCE?! Its presence in the latter surely means it isn't policy as such, regardless of who announced it and where, and therefore by definition cannot have the same weight as NPPF (in the same way as LPAs can't introduce what should be DPD policy through non-statutory SPD advisory guidance)! I sense a field day for the lawyers on that one if Government try to argue it is policy of same weight as NPPF!

Former Member, modified 9 Years ago.

RE: New Guidance on s106

It is policy because it was said by a member of the Govt. ( It is the copy of the statement that you should keep as the policy - Hansard PDF on PAS web page) It is because it is Govt policy that it is put into the guidance (PPG). It should be given the same weight by decision makers as the NPPF. It also means local plans with policies with lower affordable housing thresholds are now out of date. Govt does not need to follow the same consultation principles etc as LPAs. But yes any change and lawyers will be busy.

Former Member, modified 9 Years ago.

RE: New Guidance on s106

Andrea King:

If it's policy then shouldn't it be a fully consulted on proposed amendment to the NPPF (or parallel formal policy like they've done for travellers and waste planning), not just slotted in as part of Planning Practice GUIDANCE?! Its presence in the latter surely means it isn't policy as such, regardless of who announced it and where, and therefore by definition cannot have the same weight as NPPF (in the same way as LPAs can't introduce what should be DPD policy through non-statutory SPD advisory guidance)! I sense a field day for the lawyers on that one if Government try to argue it is policy of same weight as NPPF!

This is my immediate thought as well. It is only practice guidance. The ministerial statement / consultation response document refers to a change in policy, but the policy document (the NPPF) hasn't been amended. I would have thought it was a reasonable assumption that the practice guidance is just guidance, and is a material consideration, but one that holds relatively little weight compared to adopted development plans. I assume that the change hasn't been made to policy (NPPF) as no impact assessments etc have been undertaken.

Former Member, modified 9 Years ago.

RE: New Guidance on s106

I was at a CIL event yesterday where a very senior PINs Inspector said it is national policy as it was in a ministerial statement and he will print it out and attach it to his hard copy NPPF. It is the statement that is policy not the guidance.

Former Member, modified 9 Years ago.

RE: New Guidance on s106

Gilian Macinnes:

I was at a CIL event yesterday where a very senior PINs Inspector said it is national policy as it was in a ministerial statement and he will print it out and attach it to his hard copy NPPF. It is the statement that is policy not the guidance.

It was previously my understanding that a ministerial statement would usually be considered to be a material consideration, which would have a lesser weight than policy.

I'd previously read article here on whether ministerial statments can be considered as material consdirations: http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=13990%3Aministerial-statements-material-considerations-or-trivial-pursuits&catid=62%3Aprojects-articles&Itemid=30 .

However, I'm not an expert on planning law, and with a senior PINs Inspector giving the advice you mentioned then it would certainly appear that it's going to hold significant weight. Furthermore, as others have already said, ultimately any ambiguity will be one for the solicitors to argue over.

As an aside, it seems strange that the ministerial statement only menions the vacant building credit under the sub-heading "Section 106 obligations imposed on small-scale developers, custom and self-builders". Either this is a mistake, or the minister only intends this to be in relation to those specific types of developer?

Steve Wilson, modified 9 Years ago.

RE: New Guidance on s106

New Member Posts: 10 Join Date: 11/06/13 Recent Posts

On the same issue, the Statement and NPPG state that, 'Contributions should not be sought from developments of 10-units or less, and which have a maximum combined gross floor space of no more than 1000sqm'.

By the use of the term 'and' does this mean that on schemes of 10 or less units with a combined floorspace of more than 1000sq m an affordable housing contribution can be sought?

The Planning Portal website today seems to suggest not but I do not think they have translated the guidance correctly and the use of the term 'and' provides the ability to do so.

Former Member, modified 9 Years ago.

RE: New Guidance on s106

I haven't looked at the portal but the way I read it - if the development has a floorspace greater that than 1000 sq m then affordable housing and tariff style contributions can be sought. e.g. 5 large dwellinghouses @200 sq m each, so more than 1000 sq m, contributions should be sought

Steve Wilson, modified 9 Years ago.

RE: New Guidance on s106

New Member Posts: 10 Join Date: 11/06/13 Recent Posts

So the follow up question is if you negotiate on such schemes with a floorspace of over 1000 sq m but with 10 or less dwellings are you limited to a cash only payment or can you negotiate an on-site percentage?

Former Member, modified 9 Years ago.

RE: New Guidance on s106

Steve - in terms of your follow up question, my view is that you could negotiate onsite provision.

The provisions for cash only payments is directly linked to rural areas where the lower 5-unit threshold is applied - there is no such caveat after the general 10 unit/1000sqm threshold, so I don't think you would be restricted in terms of how you asked for any necessary contribution to be made.

Former Member, modified 9 Years ago.

RE: New Guidance on s106

We have been having exactly the same debate in our office and the 'and' and whether it should be an 'or'!

I've been in touch with CLG to try and get some clarity and they replied stating:

"The threshold is within 10 units and 1,000 square metres – so both measures need to be met. A 13 unit site is outside of the scope of the measure regardless of the floor space. An 8 unit site is outside the scope if it exceeds 1,000 square metres."

It is poorly worded by CLG and so isn't very clear. I think part of the confusion comes from the way it is written as a negative requirement, rather than one which sets out when affordable housing can be asked for.

To try and explain our understanding out it we've prepared a quick note with a flow chart and a couple of examples which I've attached - but if you have a different interpretation, or think we've got it wrong, do let me know!

Steve Wilson, modified 9 Years ago.

RE: New Guidance on s106

New Member Posts: 10 Join Date: 11/06/13 Recent Posts

Thanks Caroline - the flow chart is useful and is exactly the way we read the guidance.

Steve Wilson, modified 9 Years ago.

RE: New Guidance on s106

New Member Posts: 10 Join Date: 11/06/13 Recent Posts

Is there any guidance on what constitutes the 'floorspace' in respect of this guidance? Presumably it would be an internal floorspace measurement taken from the inside of the external walls.

Andrew Chalmers, modified 9 Years ago.

RE: New Guidance on s106

Advocate Posts: 172 Join Date: 20/10/11 Recent Posts

Agree absolutely that this is typical sloppy wording from DCLG which sadly we've come to expect. This has resulted in many of us spending far too much time trying to work out what DCLG really intended. But if the DCLG view is "official" this does provide the key to solving this. Of course it doesn't really read well with the overall context of the remaining changes to NPPG and the smaller "threshold" for rural areas. Either 10 is a threshold or it isn't. Clearly one simple sentence or example table like yours from DCLG would have made the system transparent from the go. Maybe a positive suggestion would actually be to involve PAS, RTPI or POS in assisting drafting guidance and legislation! It certainly does result from the negative wording. And for us pedants it is "fewer" not "less"!

Steve Wilson, modified 9 Years ago.

RE: New Guidance on s106

New Member Posts: 10 Join Date: 11/06/13 Recent Posts

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

Andrew Chalmers, modified 9 Years ago.

RE: New Guidance on s106

Advocate Posts: 172 Join Date: 20/10/11 Recent Posts

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?

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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).

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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!

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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.

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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?'

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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.

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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?

Andrea King, modified 9 Years ago.

RE: New Guidance on s106

Enthusiast Posts: 76 Join Date: 19/08/13 Recent Posts

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!

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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!

Andrea King, modified 9 Years ago.

RE: New Guidance on s106

Enthusiast Posts: 76 Join Date: 19/08/13 Recent Posts

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?)!

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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?

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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.

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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

Andrea King, modified 9 Years ago.

RE: New Guidance on s106

Enthusiast Posts: 76 Join Date: 19/08/13 Recent Posts

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.”

Former Member, modified 9 Years ago.

RE: New Guidance on s106

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

Andrea King, modified 9 Years ago.

RE: New Guidance on s106

Enthusiast Posts: 76 Join Date: 19/08/13 Recent Posts

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!