CHANGES TO THE PLANNING PRACTICE GUIDANCE
Those who have been closely following the Planning News will be aware of the recent ‘West Berkshire’ case  EWCA Civ 441, which reversed a previous High Court ruling removing the affordable housing requirement for small sites.
Following the handing down of the judgement, various updates have since been made to the Online Planning Practice Guide on Friday 20th May. These include guidance previously quashed by the High Court in 2015 in addition to new paragraphs on Local Plans, Neighbourhood Plans and appeals for affordable housing obligations.
- The reinsertion of passages of guidance stipulating that affordable housing contributions should not be sought from developments of 10 units or less;
- The restoration of guidance on vacant building credit;
- New guidance for local plan examinations, including process of what should happen if an Inspector identifies ‘serious shortcomings’ in a plan submitted for examination;
- New guidance that Inspectors should work ‘proactively’ with Local Planning Authorities to stress that issues not critical to the plan’s soundness do not create unnecessary delay to examination;
- New guidance on the review and update of Neighbourhood Plans;
- New guidance clarifying that appeals under section 106BC will still be considered if "an application was made under section 106BA before the end of April 2016 and all procedural requirements are met".
Following the handing down of the West Berkshire Judgement on 11th May, Ministers appear to have the required legal assurance to update and amend the Online Planning Practice Guidance.
Whilst the content of the updates, particularly the reinstatement of paragraphs relating to the thresholds for affordable housing, clarity in respect of how and when Neighbourhood Plans should be reviewed, confirmation of the vacant building credit and guidance for S106BC appeals is welcomed, there remains a question mark on the status of approach should the Council’s appeal the recent Court decision.
With this in mind some caution should be exercised on the weight that can be given to the reinstated policy approach in the event of the Councils receiving leave to appeal the recent decision. Even without a challenge, the rapid reintroduction of the text within the PPG and perceived ease of alterations to the PPG will continue to cause a degree of uncertainty for those with sites currently in the system either as an application, plan promotion or appeal.
However, for those seeking exemptions on smaller sites, it is noteworthy the new Planning and Housing Act (section 159) introduces clauses to enable the introduction of regulations. These that would appear to pave the way for a legislative approach to exempting certain sites from affordable housing obligations. Such an approach, in our view is more certain and considered. However, once again the devil will be in the detail of the secondary legislation. Until such time, caution should be exercised when seeking exemptions.