Affordable Housing- secure by planning condition or s106 agreement? - Public forum - Planning Advisory Service (PAS)

It is generally accepted that in a standard scenario affordable housing can be either secured by planning condition or by s106 legal agreement. In some cases the nature of the proposal and what is sought to be secured may require a s106 legal agreement rather than planning condition.

In a typical scenario however, I would be interested to have others’ views on whether a condition or s106 legal agreement should be used.

Government’s current online planning guidance on conditions is clear:

http://planningguidance.planningportal.gov.uk/blog/guidance/use-of-planning-conditions/what-approach-should-be-taken-to-imposing-conditions/

What about cases where the same objective can be met using either a condition or a planning obligation?

It may be possible to overcome a planning objection to a development proposal equally well by imposing a condition on the planning permission or by entering into a planning obligation under section 106 of the Town and Country Planning Act 1990. In such cases the local planning authority should use a condition rather than seeking to deal with the matter by means of a planning obligation.

This guidance appears to be definitive; if it is possible to secure affordable housing by condition, then this method should be used rather than a s106 agreement.

I am aware however that many if not most LPAs secure affordable housing by s106 agreement, and whenever Government has sought to introduce exceptions / thresholds in relation to affordable housing they have introduced guidance relation to s106 agreements and no amended guidance on the use of conditions has been introduced in regard to affordable housing.

The Governments guidance to Inspectors in 2008:

www.whatdotheyknow.com/request/42436/response/109384/attach/51/CHAPTER GP8.doc

Appears to be contrary to the current online guidance I have referenced above, in that it says that affordable housing is usually secured by s106 agreement but can be secured by condition where there is no s106 present:

Affordable and/or Key Worker Housing

78. Usually an element of affordable and/or key worker housing is secured through a S106 Obligation. However if a completed obligation is not before you, rather than refusing permission, the affordable/key worker housing can be secured by condition. An example is below:

The development shall not begin until a scheme for the provision of [affordable]/[key worker] housing as part of the development has been submitted to and approved in writing by the local planning authority.   The [affordable]/[key worker] housing shall be provided in accordance with the approved scheme.  The scheme shall include:

i.   the numbers, type, and location on the site of the [affordable]/[key worker] housing provision to be made;

ii.   the timing of the construction of the [affordable]/[key worker] housing;

iii. the arrangements to ensure that such provision is affordable for both first and subsequent  occupiers of the [affordable]/[key worker] housing; and

iv. the occupancy criteria to be used for determining the identity of occupiers of the [affordable]/[key worker] housing, and the means by which such occupancy criteria shall be enforced. 

Where the affordable housing is to be provided through a Registered Social Landlord the following condition may be more appropriate:

The development shall not begin until a scheme for the provision of affordable housing as part of the development has been submitted to and approved in writing by the local planning authority. The affordable housing shall be provided in accordance with the approved scheme and shall meet the definition of affordable housing in Annex B of PPS3 or any future guidance that replaces it. The scheme shall include:

i.      the numbers, type, tenure and location on the site of the affordable housing provision to be made which shall consist of not less than X% of housing units/bed spaces;

ii.     the timing of the construction of the affordable housing and its phasing in relation to the occupancy of the market housing;

iii.    the arrangements for the transfer of the affordable housing to an affordable housing provider[or the management of the affordable housing] (if no RSL involved) ;

iv.   the arrangements to ensure that such provision is affordable for both first and subsequent occupiers of the affordable housing; and

v.    the occupancy criteria to be used for determining the identity of occupiers of the affordable housing and the means by which such occupancy criteria shall be enforced.