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Test case ruling waives Section 106 on small housing development

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Planning inspector’s decision ‘sets a precedent for thousands of other small developments’

The director of iArch Consulting has described a planning appeal ruling as a ‘landmark decision’ for small residential developers.

Peter Wislocki made the comments following a planning appeal decision, which granted permission for 10 flats designed by his firm in West Ewell, Surrey.

Plans for the 10-home development had been refused by Epsom and Ewell Council. However, the planning inspector upheld an appeal against the refusal – and set aside its obligation to enter into a Section 106 (s106) agreement, which would require the practice to provide some affordable housing, or a cash payment in lieu.

In the decision notice, dated 2 March, the planning inspector cited a Court of Appeal judgment on 11 May last year, which upheld a written ministerial statement from 2014. This statement, which the court ruled should be considered as national planning policy, noted that ‘for sites of 10 units or less… affordable housing and tariff style contributions should not be sought’. 

Wislocki said: ‘This appeal decision not only confirms that planning committees cannot refuse permission for schemes which use intelligent and appropriate design to optimise the use of urban sites, meeting acute housing need and reducing the pressure on the green belt, but confirms that councils cannot ignore government guidelines on Section 106 obligations.

‘We had not asked the planning inspector to set aside the s106 agreement, but are clearly delighted by this decision, which sets a precedent for thousands of other small developments across the UK.’

But Nick Lee, founding director of NJL Consulting, said he ‘would not go so far’ as to call it a landmark decision.

He said: ‘It is good to see, however, that there is definitive support at appeal for the non-imposition of s106 on affordable housing for schemes of 10 units or less to reflect government policy.

‘As a broader point, the need to encourage smaller developers is very much a key plank of the [Housing] White Paper, both from a possible funding basis, but also by encouraging planning authorities to identify and promote smaller sites as part of their development plans.

‘It is very important that a genuine spread of types of sites in the right locations is taken forward by local planning authorities and also for them to recognise that such sites must be deliverable.’

Lee added that the 10-unit threshold established in this case was too small, and that it would need raising and would also vary in different areas across the UK. 

Work is expected to start on site for iArch Consulting’s scheme in summer this year.

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