Shift in Affordable Housing Policy Receives Judicial Blessing

Building SiteA controversial shift in government policy – designed to boost house building but which means that smaller residential developments will no longer have to include affordable homes – has received the blessing of the Court of Appeal despite fierce local authority objections.

The Secretary of State for Communities and Local Government (the SoS) introduced the policy in 2014 by means of a written ministerial statement in Parliament. It excluded developments of 10 homes or fewer, or 1,000 square metres or less, from the requirement to contribute to affordable housing provision.

Two local authorities, who claimed that the policy would lead to a reduction of about 20 per cent in the availability of affordable homes nationwide, successfully challenged it before the High Court, principally on the ground that it was fundamentally incompatible with the existing statutory planning regime.

In allowing the SoS’s appeal against that ruling, however, the Court of Appeal found that he was entitled to express the new policy in unqualified and mandatory terms. There was no requirement for him to spell out that the policy should admit of exceptions and should not be applied in a blanket manner.

The SoS was not obliged to exhaustively set out all the relevant factors that he had taken into account and the process by which councils and others had been consulted was fair. Arguments that he failed to properly assess the impact of the policy upon persons with characteristics protected by the Equality Act 2010 were also rejected.