In Stonewater (2) Ltd v Wealden DC [2021], Wealden District Council’s approach to CIL social housing relief was endorsed by the High Court.

The Council rejected Stonewater’s applications for social housing relief on multiple occasions. A claim for social housing relief must be accompanied by evidence that the development qualifies for that relief as affordable housing. The relevant planning permission and section 106 agreement required the provision of 35% of the proposed dwellings as affordable housing, and Stonewater sought social housing relief for 100% of the proposed dwellings.

The Council determined that not all of the dwellings would qualify for relief, due to the fixed provision of 35% affordable housing required by the planning permission and section 106 agreement. Stonewater challenged that conclusion, arguing that it erred in law, and that challenge was unsuccessful.

The Court ultimately concluded that the Council’s conclusion was “entirely rational and unsurprising”, in the context of the fixed level of affordable housing provision required. The practical position was that a scheme delivering 100% affordable housing could not lawfully commence; in order to proceed with a development of this type, a further exercise of the local planning authority’s planning judgment would be required. In the absence of that approval, it was lawful for the Council to conclude that it was not satisfied that all of the dwellings would qualify.

The case highlights that the content of the planning permission and section 106 agreement are relevant considerations for local authorities to consider when determining an application for CIL relief. Where there is a specific and binding obligation to provide a fixed number of affordable housing units, the authority is entitled to have regard to this.

Going forward, planning applicants are likely to seek clarification that the affordable housing requirements imposed by local planning authorities are not “fixed”, and are instead a minimum which would not restrict a future application for relief as per Stonewater. The conclusions of the Court are likely to lead to a more cautious approach by developers and housing providers, who will be seeking early and clear engagement from local planning authorities in order to avoid issues with CIL relief at a later stage.

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