Last month I was writing about the little victory won with the exemption for self and custom builders from the S106 agreements as announced by the Department for Communities and Local Government (DCLG).
It seems the push back from local planning authorities (LPAs) has already started in earnest. A number of LPAs are unhappy with the situation as they stand to lose a lot of revenue and I’ve already seen letters and comments from those being affected.
Some self-builders were quite rightly miffed that they had got planning approved in November 2014, together with a hefty S106 commitment to contribute to affordable housing or the like, only to find that if the decision had been delayed by a week or two, they could have avoided paying it.
I think this falls under the general heading of bad luck and unfortunate timing. In this situation, I suspect that the only recourse is going to be a resubmission under the new rules, which will add time, cost and more uncertainty into an already stressful process.
However, I’m also hearing of far more disturbing instances where LPAs are simply ignoring the directive from the DCLG and relying on the fact that their adopted planning policies allow them to demand a S106 contribution. And because the announcement from DCLG is just policy guidance as opposed to law, they can safely ignore it and wait for the legal challenges to roll in. It’s important to remember that the S106 exemption differs from the Community Infrastructure Levy (CIL) exemption because the latter for self and custom builders is in fact statutory.
Going against government policy like this is an unusual route for the LPAs to take, but they are within their rights to do so. Their argument might well be that the need for affordable housing contributions outweighs the policy directive from the government.
They will have to justify this and provide suitable supporting evidence against every application made, which will be a time consuming and expensive process when resources are tight. However, in many cases the sums of money involved are not insignificant so are worth pursuing; from the S106 agreements I’ve recently seen that affordable housing contributions can top £25,000 against an individual project.
If it all gets out of hand, the secretary of state William Hague could put his foot down and ‘call in’ a few choice applications to approve just to make his point. I suspect, however, that we will have to let bureaucracy take its time and await the inevitable legal challenges, subsequent appeals and escalation through the courts. A lengthy process that, hopefully, eventually finds in favour of the self-builder thus establishing the case law. I know NaCSBA is aware of the problem and I’m sure they will be looking at the best way of addressing this issue.