Secretary of State for Communities and Local Government v West Berkshire District Council & Reading Borough Council  [2016] EWCA Civ 441

The Court of Appeal has reversed the 2015 High Court decision that sunk ministers’ plans to exempt small development sites of 10 or less dwellings from affordable housing obligations. Those plans were set out in a 2014 ministerial statement. That was withdrawn after the High Court defeat.

The practical effect of the reversal of the challenge is yet to be seen. It's difficult to see how the judgment can result in any massive practical impacts until the written statement is restated.

The next legal move is with the local planning authorities. I cannot see there is much point in them making an appeal to the Supreme Court if the policy stays withdrawn. If you did a planning obligation deal knowing the outcome of the challenge was uncertain, then that was a commercial risk - the appeal system was open to you in any event even if in practical terms it is useless if you are a small or medium house builder with a cash flow imperative. There may be circumstances in which you can reapply for planning permission – but the policy will have to be restated.

The probability is that is will be introduced in one form or another. Brandon Lewis MP, the Planning Minster has announced:

“This will now mean that builders developing sites of fewer than 10 homes will no longer have to make an affordable homes contribution that should instead fall to those building much larger developments.”

For that, it seems to me the Minister will have to reissue his written statement for a start.

Does it matter? Now the Housing and Planning Act 2016 will be rolled out, it is now perhaps a moot point as to whether any written statement is needed for the future if starter homes make affordable unviable in any event.

Most developers of 10 homes or less are not on expansive budgets that allow them to revisit or calculate decisions made months ago. There are about the next project, not the one that has largely built out.

However, where there is any change in policy or guidance that is relevant, then the progress on site and the individual situation on site is the key in any negotiation. If the site hasn’t yet fully built out – depending on the precise circumstances – then there may be a legal basis for revisiting the consent, and unwinding some planning obligations. But much depends on the facts on the ground, the timing and the terms of the obligations.

In any event, it is a salient reminder of the constant tensions between national and local policy imperatives. Not since the Caborn and McNulty statements on Town Centres has there been such a ding-dong arising from policy making on the hoof.

This is all mere skirmish in comparison to the battle that awaits the implementation of the controversial aspects of the new Housing and Planning Act.