Commentary on Sections Promoting growth and facilitating provisions of infrastructure, and related matters Section 7: Modification or discharge of affordable housing requirements
42.This section inserts three new sections into the Town and Country Planning Act 1990. Subsections (4) to (6) repeal these sections at the end of 30 April 2016 and give the Secretary of State related powers to amend this date by affirmative order and make transitional provisions.
43.New section 106BA – Modification or discharge of affordable housing requirements: this new section provides for an application to vary an "affordable housing requirement" contained in a planning obligation, and defines that term for these purposes. Under subsection (14) the Secretary of State has the power to amend that definition by order, subject to the affirmative procedure. Special provision is made in relation to a first application made under section 106BA in subsection (3). If, on a first application, the affordable housing requirement makes development of the site economically unviable, the authority must modify or remove it so as to make the site viable. The authority can not make the revised obligation more onerous than the original obligation.
44.In relation to a second or subsequent application, the authority has more flexibility in amending the affordable housing requirement under subsection (4). However, they cannot amend the requirement so as to make the relevant development economically unviable.
45.This section makes provision for regulations to prescribe procedural matters linked to these applications, and subsection (8) requires the appropriate authority to have regard to guidance issued by the Secretary of State. Where section 106BB applies, the authority must also have regard to any representations made by the Mayor of London. Under subsection (9) the authority must give the applicant notice of their determination within 28 days, unless a longer period is agreed between them. The Secretary of State can provide for a different determination period in regulations.
46.Under subsection (12) applications and appeals under sections 106BA and 106BC cannot be made in relation to developments which were granted permission on the basis of a rural exception sites policy.
47.New section 106BB: this new section introduces a duty for London Boroughs to consult the Mayor of London in relation to applications made under section 106BA that fulfil two criteria. Firstly, that the application relates to development that section 2A of the Town and Country Planning Act 1990 applied to (applications of potential strategic importance relating to land in Greater London). Secondly, that an order under section 2A, or a development order, required the Mayor to be consulted on the original application. The current requirement to notify the Mayor in relation to applications for planning permission is contained in article 5 of the Town and Country Planning (Mayor of London) Order 2008 (S.I. 2008/580).
48.Under subsection (3) the Mayor must notify the Borough within 7 days as to whether he wishes to make representations and under subsection (4) must make those representations within 14 days unless a longer period is agreed with the authority. Subsection (5) extends the default period for notifying the applicant of the outcome of the application under section 106BA(9)(b) to 35 days in relation to these applications.
49.The authority dealing with an application under section 106BA must have regard to any representations made by the Mayor. As a result of section 106BC(6), this also applies to the Secretary of State when determining an appeal under section 106BC.
50.New section 106BC: this new section provides for an appeal to the Secretary of State in relation to applications made under section 106BA. An appeal can be made if the appropriate authority does not modify the planning obligation as requested, or fails to make a determination within a specified time. Such appeals are generally to be handled by the Planning Inspectorate on behalf of the Secretary of State.
51.The special provision in section 106BA in relation to first applications also applies in relation to appeals on a first application. Subsection (8) ensures that it does not apply to an appeal in relation to a second or subsequent application, whether or not it is the first appeal. Subsection (6) applies other aspects of section 106BA applications to appeals under section 106BC.
52.Where an appeal made under this section is successful, the modifications made by the Secretary of State only last for three years under subsections (11), (12) and (13). The modified planning obligation must contain provision to ensure that if development is to continue past that time, the original affordable housing requirements are reverted to. In this context, the original affordable housing requirements are those contained in the planning obligation before the first application under section 106BA was made in relation to it. The Secretary of State must vary the original requirements to ensure that they will not apply to that part of the development that is commenced in the three year period, and may make such variations as are necessary to ensure their effectiveness.
53.Subsection (14) ensures that this reversion provision can be reconsidered through applications and appeals under sections 106BA and 106BC. Under subsection (15), if it is removed on appeal under section 106BC, it must be replaced with a new reversion provision along the same lines.
54.As with section 106BA, this section provides for regulations to prescribe procedural matters linked to appeals. Subsections (3) and (4) contain a default provision that appeals must be made within 6 months if no regulations have been made about the time limit for appeals.