Councils win battle over threshold on developments and s.106 agreements

Two councils have won a High Court challenge over Government proposals for a threshold on the size of developments beneath which planning authorities should not seek affordable housing contributions through section 106 agreements.

In November 2014 Planning Minister Brandon Lewis announced in a ministerial statement a threshold of developments of 10 homes or fewer. In designated rural areas, the threshold was set at five homes or fewer.

West Berkshire Council and Reading Borough Council joined forces to challenge the proposal.

In West Berkshire District Council Reading Borough Council v Department for Communities and Local Government [2015] EWHC 2222 (Admin) Mr Justice Holgate in the Planning Court last week ruled in their favour. The judge quashed numerous paragraphs contained in national planning practice guidance.

Cllr Tony Page, Reading's lead councillor for strategic environment, planning and transport, said: "This judgment is excellent news not just for Reading and West Berkshire councils but for all the people looking for affordable places to live.

"There is an acute and increasing need for affordable homes in Reading, which is demonstrated by the fact there are around 10,000 people on our housing waiting list, and the changes to the planning system would have made matters worse.”

He added: "The judge's decision also means an estimated £650,000 per year will be saved for community benefit, including improvements to local roads, schools and playgrounds."

Alan Law, West Berkshire's Executive Member for Planning, said: "The decision to legally challenge the Government on this issue was not taken lightly.

"The judgment... confirms that the council were fully justified in challenging this policy change in order to deliver much needed affordable housing and safeguard funding for critical infrastructure such as education. This was a concern for council and by joining with Reading it was demonstrated that this issue was a cross party concern.”

Hilary Cole, West Berkshire's Executive Member for Housing said: "This was a significant victory and I'd like to thank the planning and legal teams for their hard work. They put a good case together and, although it was a tough decision to judicially review the government, the decision proves we were right to do so.”

For an analysis of the ruling, read Affordable housing and small scale sites by Jenny Wigley of No. 5 Chambers.