S106 Management were pleased to act for the applicant in providing viability reporting, negotiations with the council and support through this recent Appeal in North East Lincolnshire for 68 houses and 18 apartments on a smaller part of a large strategic site adopted in the local plan and previously consented.
This duplicate application was identical to the original consent, but sought to reduce the policy requirement for 20% affordable housing(17 units).
We acted for the applicant through provision of a fully evidenced viability report, extensive negotiations with the council and their consultants, and provision of statement of case in support the subsequent appeal.
The key element of this case was whether it is proper to include the full site-specific infrastructure costs of the development as part of the viability report.
Stakeholders contested the inclusion of highway improvement works required as part of the development, which would in turn enable delivery of the wider strategic site. Reference was made to these as ‘abnormal’ costs under the definition in PPG Viability. However this is a restrictive definition which highway improvement works do not fall within.
Acting on behalf of the applicant we noted that there was full policy justification for these costs’ inclusion, with a mechanism for reducing affordable housing contributions in instances of high site-specific infrastructure costs very clearly included in the statutory development plan.
Unfortunately negotiations were brought to an abrupt conclusion. Concern as to setting a precedent for affordable housing delivery on the wider strategic site was noted, although each case should be determined on its own merits.
The appeal statement of case rested on 4 factors:
1. The adopted plan policy very specifically allowed for site-specific infrastructure costs to be taken into account inviability assessment to determine the optimum provision of affordable housing delivery. The scheme was therefore fully policy compliant.
2. The definition of ‘abnormal costs’ is restrictive, and the proposed highway improvement works do not fall into this definition; therefore these must be included within the viability assessment.
3. Local plan area-wide viability assessments cannot be relied upon as evidence that site-specific infrastructure costs cannot be taken into account – as these are high level and cannot accurately capture site-specific circumstances.
4. The council had not determined this case on its own merits, and not explained its determination adequately in relation to the statutory development plan.
The appeal inspector concurred with our statement of case on all points, giving considerable weight to our viability reporting over previous reports from other consultancies historically acting for the applicant and local authority.
‘I give substantial weight to the S106M report and theS106M addendum report in this case. For the same reason I also afford lesser weight to the Fordham and both Bidwells reports.’
The appeal was allowed and costs awarded for unreasonable behaviour on the basis that the council ‘prevented development which clearly should have been permitted having regard to its accordance with the development plan, national policy and other material considerations.’
The key reasons being that the council failed to properly consider the information provided to them, failed to properly consider the full costs of the development, brought negotiations to an abrupt conclusion and failed to adequately explain their decision.
This case has important implications for greenfield sites and allocated strategic sites in particular:
1. Infrastructure costs are very often underestimated in area-wide viability assessments. Therefore it is vital to obtain a site-specific appraisal for any greenfield site with full costings to ensure maximum accuracy at an early stage.
2. The PPG Viability definition of ‘abnormal costs’ should be interpreted correctly when allocating costs within a viability appraisal. This decision provides some clarity as to how this should be applied.
3. Just because a site is allocated in the development plan does not mean that each case should not be determined on its own merits. To do so is to risk costs being awarded for unreasonable behaviour.
Appeal reference APP/B2002/W/20/3263475.
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