Affordable housing viability appeals to lapse at end of April, confirms chief planner

Under a power introduced by the Growth and Infrastructure Act in 2013, developers can apply for affordable housing requirements in planning obligations to be modified, removed or replaced where they render a development economically unviable.

In the absence of an order from the communities secretary amending the Act and extending the right, the power will be automatically repealed after 30 April. Whilst the present government pledged in November to "extend the ability to appeal against unviable s106 agreements to 2018", reports emerged last month that the UK Department for Communities and Local Government (DCLG) had yet to make a final decision.

According to a letter from the government's chief planner, Steve Quartermain, the DCLG has now decided to allow the power to be repealed.

"Ministers have now decided not to extend sections 106BA, 106BB and 106BC of the Town and Country Planning Act 1990, requiring authorities to renegotiate unviable affordable housing requirements, and providing an appeal mechanism for this," said the letter. "These sections will therefore be repealed at the end of April 2016."

Quartermain confirmed that developers will still be able to submit applications to the relevant local planning authority until the end of 30 April. He also said that, for applications submitted before the deadline "a subsequent appeal to the Secretary of State will generally still be considered".

Planning expert Emma O'Gorman of Pinsent Masons, the law firm behind Out-Law.com, said: "Anecdotal evidence suggests that low uptake by developers was one of a number of reasons why the government has now decided not to extend the measures beyond the end of this month. Some other suggested reasons include concerns raised by local planning authorities about the cumulative effect of a number of potential changes to affordable housing provisions, including starter homes partly replacing traditional affordable housing models and a potential reintroduction of the 10 dwellings or less exception."

"Given the provisions' swift determination requirements i.e. local planning authorities on first application were under a duty to determine within 28 days; and the removal of all planning merits from the determination process, one does wonder whether the low uptake was a case of the market not being fully aware of the provisions, or alternatively deciding to concentrate efforts on viability and negotiation, as part of the original planning application process," O'Gorman said.