S106BC Affordable Housing Appeals and the 'Sunset' Clause
We have recently been trying to get to the bottom of how undetermined S106BC appeals will be dealt with by the Planning Inspectorate if submitted before the cut-off date of 30 April 2016. It has not been easy but we have been persistent with our enquiries and have made some progress:
The Growth and Infrastructure Act 2013 (the Act) introduced new provisions under S106BA and S106BC allowing applications and appeals to be made to modify or remove planning obligations relating to affordable housing requirements if it could be demonstrated that such requirements were economically unviable. However, as the new provisions were aimed at helping to unlock stalled developments the Act contained an additional 'sunset' clause for the repeal of the new provisions by 30 April. The Act failed to clarify whether applications for appeals submitted before the deadline would still be determined post the cut-off date.
We have been in contact with both the Planning Inspectorate and the DCLG and the current official line is that the Government is still assessing whether to extend the timescale. However, if no decision is made to substitute a later date then in respect of any application made under section 106BA before the end of April "a subsequent appeal to the Secretary of State will generally still be considered. "
This assurance would be of considerable comfort if not for the addition of the word "generally" as this suggests that there may nonetheless be exceptions to this decision. In any event it would appear that for those willing to take a risk there is a chance that it is still not too late to make applications or appeals before the sunset clause takes effect unless of course the Government make a last minute decision to extend the deadline.