Applying small sites exemption policy – a degree of clarification

In February, we considered how the Government’s small sites exemption policy in respect of affordable housing was working out in practice. In this, we highlighted some inconsistencies in recent appeal decisions in terms of whether the national guidance or local policy takes precedence.

This matter was taken up by the London Borough of Richmond in a letter to the Planning Inspectorate. A statement has now been issued by the Inspectorate and this admits that the approach taken by inspectors in several recent planning appeals to discount the weight of local planning policy in favour of the written ministerial statement was not appropriate.

The response states that the national guidance should not automatically reduce or discount the weight of local planning policy, but rather, the guidance should be applied as a material consideration which post-dates the local plan, and should be balanced against the local evidence base of the need for affordable housing, as well as local planning policy. Inspectors have the discretion to decide where this balance should lie, in relation to the evidence presented.

In practice, the approach that should be taken by an inspector is to first consider the proposal in relation to local planning policy and the local affordable housing evidence base, and determine whether the proposal conflicts with local affordable housing policies. If there is conflict, only then should the weight of the national guidance be considered.

The Planning Inspectorate also apologised for the inconsistency of approach, emphasising that while each appeal is determined on its own merits, the approach taken by inspectors in reaching decisions should be consistent. The matters raised by the London Borough of Richmond will be used to update and strengthen the internal inspector guidance.

Finally, it is interesting to note that the statement addresses situations where the guidance post-dates established local plan policy. Where new local plans are being produced, we would envisage that the approach should be the same, in that the guidance is a relevant consideration in the formulation of policy but might be outweighed if there is local evidence to support a requirement for affordable housing below the threshold. This would then be subject to scrutiny through the process of Examination. This was the case in January of this year in relation to the Woodmancote Neighbourhood Plan. Here, the inspector, based on very particular local circumstances, found that a requirement for affordable housing below the national threshold was justified.

Overall, the statement confirms the view we expressed in February, in that the guidance in National Planning Practice Guidance will prevail unless there is an adopted policy, backed by strong up to date evidence, to justify affordable housing below the 10 dwellings/1000m2 threshold. Introducing a greater degree of clarity into the content of the NPPG text would further help to remove uncertainty.