Tetlow King Planning (TKP) are delighted to have assisted in the appeal success for 254 dwellings at the Footzie Social Club in the London Borough of Bromley on behalf of Dylon 2 Limited (TKP ref. M18/0811). The site is located on Metropolitan Open Land (MOL).
James Stacey, Senior Director, provided expert evidence on the need for affordable housing across the London Borough of Bromley with a specific focus on the acceptability of providing ‘First Homes’ as the affordable housing offer at the site in light of viability considerations.
This decision is timely given that last week the government published their response to the proposals on First Homes which seeks a minimum of 25% of homes secured via Section 106 agreements to be provided at a 30% discount to market values (subject to caps).
In considering the need for, and delivery of, affordable homes across the Borough, Inspector Paul Singleton set out at paragraph 85 of his decision that:
‘The most up-to-date assessment of AH needs in Bromley15 identified a need for 1,404 net affordable homes per annum in the Borough between 2011 and 2031. This equates to 28,080 affordable dwellings over the 20 year period. The AH SoCG confirms that, on average, only 104 net new affordable homes have been delivered in each of the last 5 monitoring years (2015/16 to 2019/20), with only 1,475 having been delivered since 2011. Total delivery over that 9 year period is only marginally greater than the annual average requirement. There is a cumulative shortfall of 12,636 affordable units against what should have been delivered over that same period. By any measure that performance can fairly be described as woeful.’ (emphasis added).
At paragraph 86 of his decision the Inspector was clear that:
‘Given that performance and the scale of the shortfall, there is little prospect that the rate of delivery of AH will improve significantly in the short to medium term. Alongside that poor level of delivery, affordability in the Borough has been getting worse. Lower quartile private rental rates have increased to almost double the national average, 17 average house prices are 12 times average incomes, and the median house price ratio to incomes has increased by 59% since 2011. This evidence provides a strong indication that the provision of decent housing for all members of the community is not being given the highest priority as is claimed in the forward to the Council’s Sustainable Community Strategy.’
The Inspector went on to conclude at paragraph 87 that:
‘This demonstrates that the Council is consistently failing to provide for the needs of large numbers of people residing or wishing to reside in the Borough. Various documents in Mr Stacey’s appendices and the core documents indicate the priority placed by the Government on fixing the “broken housing market” and helping “more people onto the housing ladder.” It is in this context that he proposal for the provision of 49 affordable homes needs to be considered.’
In respect of the affordable housing offer itself the Inspector set out at paragraph 88 that:
‘The 49 AH [Affordable Housing] units would be offered, both on first purchase and subsequent resale, at 30% below full market price as assessed by an independent surveyor. The units would comprise Discount Market Sales Housing (DMSH) consistent with part c) of the definition of AH in the glossary to the Framework. As low cost homes with a sales price of at least 20% below market value, the proposed units also fall within part d) of that definition. In the AH SoCG the parties have agreed that the units would be DMSH. On behalf of the Council, Mr Johnson agreed during the Round Table session that First Homes (FH) would be an ‘intermediate housing’ product.’
In considering the role of intermediate affordable housing products the Inspector noted at paragraph 90 that:
‘Paragraph 2.1.34 of the BLP states that AH includes intermediate housing, which is sub-market housing available to people on moderate incomes who cannot afford to rent or buy in the open market, and that it may take the form of low cost home ownership. The provision of DMHS with a discount of more than 20% against full market value is, in my view, within the scope of Policy 2. The LonP adopts the Framework definition of AH. The units proposed would fall within the ‘other affordable housing products’ category of AH referred in the explanatory text to Policy H6.’
The Inspector went on to highlight in the following paragraph that:
‘The Government’s consultation on FH indicates that, if and when national policy is amended such that development plans will need to require FH units as part of AH provision in their areas, local planning authorities may seek a discount of more than 30% if justified by local circumstances. London and the South East are listed as areas where affordability levels may warrant such an approach. However, as DMHS with a 20% discount is acceptable under Policy 2 in its current form, subject to a viability justification, I see no reason why DMHS with a larger discount of 30% should be considered unacceptable in principle. The Council has produced no evidence that a discount of 30% would render the AH units unaffordable having regard to the housing income and upper limit thresholds set out in the BLP.’
Concluding in paragraph 92 that:
‘I find that the proposed DMHS would deliver AH in accordance with the definitions set out in the Framework and the development plan. BLP paragraph 2.1.34 recognises that, although not a priority need, low cost market housing may assist households unable to access market housing who the Council has a duty to assist. Under the terms of the UU, key workers and those with a local connection or need to reside in Bromley would be given priority for the affordable units .The 49 DMSH units would, therefore, help to meet part of the need for affordable homes in accordance with the objectives of Policy 2.’
The Inspector then sought to consider the wider implementation of First Homes as an affordable housing product, setting out at paragraphs 93 and 94 that:
‘The planning system is intended to be the key tool for delivering FH. Although options for legislation to ensure delivery are being considered, the Government’s position is that this is not required for the implementation of FH.
The Government intends to run a pilot scheme to ensure that FH achieve the stated objectives and for this to be done before requiring local authorities to impose a policy requirement for FH in their development plans. The evidence on these matters does not, however, lead me to conclude that the Government intends that developers and local authorities should not make use of FH in the interim period, before any national policy changes are brought into effect, where it can be shown to meet AH needs. I accordingly reject the Council’s objection to the use of a FH form of AH on these grounds.’
The Inspector highlighted at paragraph 97 of his decision that the council sought to assert that allowing the appeal could negate or frustrate consideration of borough-wide arrangements for the future delivery of FH in Bromley. Going as far as to assert that it would be unlawful for him to allow the appeal including the AH provision as proposed because his decision would have the effect of introducing a new policy regulating the use of land in Bromley. In response to this the Inspector concluded the paragraph by setting out that:
‘I am not persuaded that I am invested with such a power. Given that the FH proposed would be a form of DMHS that falls within the BLP definition of AH, I also reject the assertion that my allowing the appeal would have that effect.’
The Inspector was clear at paragraph 98 of his decision that:
‘The approval of a single scheme including FH at this stage would not prevent the Council from preparing a report on these matters and drafting whatever policy or guidance it considers appropriate. However, given the scale and pressing nature of the AH need in Bromley, I do not consider it either necessary or appropriate that the appeal scheme should be rejected because the Council has yet to undertake that exercise.’
In considering the very special circumstances needed to justify inappropriate development in Metropolitan Open Land the Inspector set out at paragraph 113 that:
‘Although not policy compliant in accordance with BLP Policy 2, the provision of 49 affordable units would make a significant contribution to meeting the considerable need for AH in the Borough. I attach substantial weight to this social benefit of the proposal.’
Overall, the Inspector considered that very special circumstances existed to justify the grant of planning for the scheme, and subsequently allowed the appeal.
Counsel for the appellant was Christopher Young of No.5 Chambers. Expert evidence was also provided by Ian Ritchie of Ian Ritchie Architects, Heritage evidence by Dr Chris Miele (Montague Evans LLP) Planning and Housing Land Supply by Stephen Butterworth (Lichfield’s, viability evidence of John Turner (Turner Morum LLP) and urban design/architecture by Paul Finch.