The Fight For Affordable Homes

A year on from the introduction of S106BA, which allows developers to apply to Councils to modify affordable housing obligations on viability grounds, there have been seven appeals to the Secretary of State pursuant to S106 BC of the Town and Country Planning Act 1990. How does that help to solve the UK's housing crisis?

Of the seven appeals only 1 has been dismissed. The others have been permitted with the original affordable housing requirement being reduced for a three-year period. The appeal decisions demonstrate the Secretary of State's mandate to maintain momentum in the delivery of housing even though the sacrificial lamb is affordable housing. Even in the one appeal which was refused, the Inspector acknowledged the national need to boost housing delivery, but concluded that, as the developer had an outline permission, it was premature to base a viability assessment on a scheme where the final development could be different to that assessed.

The appeal decisions illustrate that local authorities, when faced with an appeal on purely viability grounds, are not sufficiently resourced to properly interrogate both the viability evidence relied on by the developer nor properly justify their own viability case. In some instances the appeal forum has become a form of mediation, where the parties seek to agree elements of the viability appraisals rather than carrying out the exercise of challenging each element of the other's appraisal.

One has to question how reducing affordable housing provision is a sustainable approach in the long term, particularly in a rising housing market in which values continue to increase and the availability of grant funding for affordable housing is increasingly difficult to secure (and, perversely, if at all where affordable housing is required as part of the Section 106 package of obligations).

Appeals permitted under S106BC impose an arbitrary three year period within which the reduced level of affordable housing can be "banked" and subsequently built out within that three-year...

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