Hidden in the agenda papers of Powys County Council's 14 December 2010 Planning Committee was an appeal decision issued by the Planning Inspectorate discharging a section 106 Agreement on a property at Abermule, Montgomeryshire i.e. allowing the particular property to be sold to anyone on the open market. We know that Powys County Council has been prepared to allow local people to build homes on sites which would otherwise have been refused provided that they have a local housing need. Many have applauded this Council for so doing and helping first time buyers in particular to build a house of their own. Housing need is defined in the Council's Unitary Development Plan and Affordable Housing Guidance and includes first time buyers either from the local community or coming in to work within the community and ensuring that the property is sold at a price that reflects the purpose as a dwelling serving genuine housing need. In this particular case, the Agreement merely stated that future occupiers should have been living in the community for a period of 3 years.
Accepting that the Legal Agreement dates back to 1995 and may not have been carefully prepared with reference to affordable housing need (it merely requiring the occupier to have local connections), the decision is highly critical of the original decision to grant planning permission for a large dwelling outside the settlement limits which was now valued in excess of £390,000 - well outside the reach of any person with a genuine housing need. The appeal inspector appointed by the Welsh Assembly Government removed the section 106 Obligation on the basis that it no longer served a useful planning purpose i.e. irrespective of the Council's planning policies on affordable housing, this property would never be affordable to those people with a genuine housing need.
In fairness to Powys, I believe the policy has tightened up since 1995 and the section 106 Agreements now require houses designed to cater for people with a housing need to be of a certain size and be limited to first time buyers. Such Agreements also try to limit the price at which such houses can be sold at, thus preventing the type of abuse of the planning system that this particular Abermule gentleman got away with back in 1995. Not many authorities have gone down the Powys route of permitting affordable houses for sale and have preferred instead to encourage Housing Associations to build houses on "exception" sites and offer these up to local people on various tenure arrangements. This tends to remove opportunities for abuse where often outrageous claims of hardship and local connections can be made in the quest to build a property on a site outside the settlement limits! But at least Powys has been brave enough to stick its head above the parapet and make the case that Powys has different housing problems to other more urban areas of Wales and that its affordable housing policies meet the needs of its population.
However, can I now retrain as an estate agent and make a killing in the sale of all those houses built under section 106 since the 90's? With this appeal decision, quite clearly there is little appetite on the part of the Planning Inspectorate to uphold Powys Council's affordable housing policies. But I also believe that the adopted Unitary Development Plan has primacy in law when it comes to planning decisions - presumably the decision of Powys to refuse to discharge the section 106 Obligation was made in accordance with the UDP. Why didn't Powys then challenge this decision in the High Court?
CT draft
5 years ago
Powys is not unique, Gwynedd is another LA with a terrible legacy of 'mansions' which were built in their own grounds miles away from the development boundary. According to a former planner this was all down to 'policy on the hoof' caused by a knee-jerk reaction to the spread of 'holiday homes'.
ReplyDeleteThere remains the problem of 'agricultural worker' dwelling being built in the open countryside only to be sold off in future due to there being 'no need'.
I am active in the removal of occupancy restrictions in Wales, the only part of the UK where an important report said it could 'find no best practice in the use of S106'.
"presumably the decision of Powys to refuse to discharge the section 106 Obligation was made in accordance with the UDP. Why didn't Powys then challenge this decision in the High Court?"
ReplyDeleteBecause these agreements are not legally enforceable, if they took legal opinion this would have confirmed that this is so.
EO Snowdonia - I understand that Powys refused the application and this then went to appeal. Powys is not recognised as an authority who frequent the steps of the High Court. I'm not aware that they have ever challenged an appeal decision. Not sure you are right about enforceability - a legal agreement entered into voluntarily would be enforceable as a breach of covenant. I think the problem is that Powys has never monitored section 106 Agreements and I know that solicitors working locally do not really take section 106 Agreements seriously - certainly they do not advise clients to not purchase houses the subject of s106 and do not advise clients on their compliance with the local occupancy restrictions.
ReplyDeleteEO Snowdonia - I'm not sure whether second home ownership was the cause of local planning authorities allowing houses outside development boundaries - Gwynedd and SNP have more than ample housing availability in the form of unimplemented permissions. No, I suspect, as in Powys, the desire to assist local people - or should I say local landowners - is a too greate a temptation for councillors who are not well briefed in planning matters - despite Welsh Assembly Government training of members of Planning Committees. The same happened in Cornwall, which has led in part to reorganisation of Cornwall councils - only one Local Planning Authority now governing the whole of Cornwall. Having said this, at least Powys has now reorganised itself so that only one Planning Committee governs the entire Powys area - I understand that Gwynedd still operates three Area Sub-Committees? A recipe for these types of parochial problems.
ReplyDeleteim looking building a house for my daughter on a small peice of land we have, to help her get on the property ladder, affordable looked like a good thing, untill you come to sell it she will be be unable to move because she will have to sell it between 30 and 50% below the market value,she will be stuck in the affordable housing situation, affordable houseing and 106 agreements seem a bit like social engernering,
ReplyDeleteYes this is an issue that confronts anyone entering into s106 Agreements. Planning policies that seek to assist local people gain a foothold on the housing ladder have to firstly recognise that an exception to normal and highly restrictive planning policies is being made. That comes with a price in that re-sale is much harder later, even if a building society or bank is prepared to lend in the first place. So the ones that benefit are those that who want to stay long term in the local community - very often sons and daughters of farmers. The risks are high I'm afraid. Your daughter will benefit initially but if she wants to move on, the price she'll get for the property later will be greatly reduced - and this having probably invested substantially in getting her home nice.
ReplyDeletePowys' local affordable housing policies are in disarray I'm afraid and I wouldn't advise anyone signing up to such agreements. most policies of this sort are designed for housing association developments - social and affordable housing policies are there to assist those associations - not the local individual. That said, the number of authorities who are pursuing similar policies as Powys is on the up. Consequently,there will be a greater number of properties coming forward in future with such restrictions. But Powys is creating a two tier housing class. On balance, stay clear.