Temporary right to apply for removal of affordable housing requirement to be terminated

20 April, 2016
by: Cripps Pemberton Greenish

The Secretary of State for Communities and Local Government has decided that the temporary right to apply to vary the requirement to deliver affordable housing within a development will not be renewed after it ends on 30th April 2016.


The provisions, originally inserted into section 106BA of the Town and Country Planning Act 1990 by the Growth & Infrastructure Act 2013, enable landowners and developers to apply to Local Planning Authorities (LPAs) to modify or discharge affordable housing requirements in Section 106 agreements where a scheme becomes financially unviable due to the affordable housing requirements.


It has been confirmed by Steve Quartermain, the Government’s chief planner, that applications can be submitted under section 106BA until 30th April and any applications submitted prior to that date will still be determined and an appeal can still be made against a refusal or non-determination.


After 30th April, the affordable housing obligations can still be varied by agreement with the local authority, but no right of appeal is open to developers if the local authority refuse.


While this mechanism was used rarely during its existence, it had been used successfully in certain circumstances. In a recent appeal against the local planning authority’s refusal of an application under section 106BA, an inspector removed the requirement to provide 40% affordable housing on a development of up to 200 homes in Oxfordshire.


The presence of the mechanism also encouraged local authorities to willingly re-negotiate affordable housing requirements. Brandon Lewis, the Planning Minister, wrote a letter to local authorities in November 2015, urging them “to respond constructively, rapidly and positively to requests for such renegotiations and to take a pragmatic and proportionate approach to viability”.


The removal of this mechanism will force developers to focus on their section 106 agreements to ensure they are drafted by their legal team with sufficient flexibility for their purposes and that they are not bound by provisions which could make the site unviable in the near future.