The Court of Appeal has reversed the decision of the High Court and ruled that the process by which the Secretary of State introduced Vacant Building Credit ('VBC') and exempted small sites from affordable housing contributions was not unlawful, rejecting the challenge brought by two local authorities.
The history of the matter is:
- March 2014 - Government consults on changes to National Planning Policy
- November 2014 - Minister of State announced the new policies in Parliament by way of a Written Ministerial Statement ('WMS')
- November 2014 - Planning Practice Guidance ('PPG') immediately amended, subsequently revised in February and March 2015
- July 2015 - West Berkshire District Council and Reading Borough Council sought a Judicial Review of the changes to PPG
- July 2015 - High Court upheld grounds of the Judicial Review, following which VBC and small sites exemption policies were removed from PPG
- May 2016 - Following an appeal by Government, the Court of Appeal rules that the process of introduction of these policies was in fact lawful, and quashes the decision of the High Court.
The Court of Appeal over-ruled the High Court and decided that:
- The WMS was consistent with the statutory planning regime
- The Secretary of State took into account necessary material considerations
- The Secretary of State's consultation upon the proposals was legally adequate
- The Secretary of State properly assessed the impact taking into account the Equality Act 2010
The Government has issued a press release criticising the councils for their original Judicial Review. In the suspected next round of Ping Pong, it is not yet clear if the Councils (West Berkshire and Reading) will be able to challenge any further through the Supreme Court.
In the meantime, it would appear that the 10 dwelling (1000 sq m) national affordable housing threshold is now back, together with Vacant Building Credit.
The impact of this national policy remains to be seen. In particular, there will be a juxtaposition in London where the new Mayor has set a target of 50% of all new homes to be affordable.
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