Q&As

If a planning application refers to the development of some social housing within a scheme, but the approval does not include a planning obligation condition requiring the provision of social housing, can a developer implement the permission for the private market?

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Produced in partnership with Abigail Pritchard-Hooper of Lanyon Bowdler
Published on LexisPSL on 31/10/2016

The following Planning Q&A Produced in partnership with Abigail Pritchard-Hooper of Lanyon Bowdler provides comprehensive and up to date legal information covering:

  • If a planning application refers to the development of some social housing within a scheme, but the approval does not include a planning obligation condition requiring the provision of social housing, can a developer implement the permission for the private market?

The planning application making reference to the development of some social housing within the scheme does not mean that the council is obliged to incorporate a planning obligation condition requiring the provision of social housing in the approval. Accordingly, in the absence of such a condition or obligation as part of the planning permission, the developer is free to implement the permission for the—probably more lucrative—private market.

However, if the council has simply overlooked the provision of social housing, which was a relevant material consideration without explaining that element of its planning judgment, it is arguable that it has effectively committed an error of law or fact. It would be open to a third party to challenge this planning consent.

The first consideration should be whether the council has fulfilled its statutory duties and responsibilities as the local planning authority (LPA).

Accordingly, the following questions would be asked:

  1. should (an element of) Social Housing have been included as a planning condition/obligation

  2. is there an error of law by the LPA in considering this application

  3. was the inclusion of such a planning condition/obligation not justified in planning terms

Under section 70 of the Town and Country Planning Act 1990 (TCPA 1990), the council may refuse planning permission or may grant it either unconditionally or subject to such conditions as the authority thinks fit.

Practice Note: Determining plann

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