Town and Country Planning Act 1990

[F1 106BA Modification or discharge of affordable housing requirements E+W

(1) This section applies in relation to an English planning obligation that contains an affordable housing requirement.

(2) A person against whom the affordable housing requirement is enforceable may apply to the appropriate authority—

(a) for the requirement to have effect subject to modifications,

(b) for the requirement to be replaced with a different affordable housing requirement,

(c) for the requirement to be removed from the planning obligation, or

(d) in a case where the planning obligation consists solely of one or more affordable housing requirements, for the planning obligation to be discharged.

(3) Where an application is made to an authority under subsection (2) and is the first such application in relation to the planning obligation—

(a) if the affordable housing requirement means that the development is not economically viable, the authority must deal with the application in accordance with subsection (5) so that the development becomes economically viable, or

(b) if paragraph (a) does not apply, the authority must determine that the affordable housing requirement is to continue to have effect without modification or replacement.

(4) Where an application is made to an authority under subsection (2) and is the second or a subsequent such application in relation to the planning obligation, the authority may—

(a) deal with the application in accordance with subsection (5), or

(b) determine that the affordable housing requirement is to continue to have effect without modification or replacement.

(5) The authority may—

(a) determine that the requirement is to have effect subject to modifications,

(b) determine that the requirement is to be replaced with a different affordable housing requirement,

(c) determine that the planning obligation is to be modified to remove the requirement, or

(d) where the planning obligation consists solely of one or more affordable housing requirements, determine that the planning obligation is to be discharged.

(6) A determination under subsection (5)(a), (b) or (c)—

(a) may provide for the planning obligation to be modified in accordance with the application or in some other way,

(b) may not have the effect that the obligation as modified is more onerous in its application to the applicant than in its unmodified form, and

(c) may not have the effect that an obligation is imposed on a person other than the applicant or that the obligation as modified is more onerous in its application to such a person than in its unmodified form.

(7) Subsection (6)(b) does not apply to a determination in response to the second or a subsequent application under this section in relation to the planning obligation; but such a determination may not have the effect that the development becomes economically unviable.

(8) In making a determination under this section the authority must have regard to—

(a) guidance issued by the Secretary of State, and

(b) where the determination relates to an application to which section 106BB applies, any representations made by the Mayor of London in accordance with that section.

(9) The authority must give notice of their determination to the applicant—

(a) within such period as may be prescribed by the Secretary of State, or

(b) if no period is prescribed under paragraph (a) (and subject to section 106BB(5)), within the period of 28 days beginning with the day on which the application is received, or such longer period as is agreed in writing between the applicant and the authority.

(10) Where an authority determine under this section that a planning obligation is to have effect subject to modifications, the obligation as modified is to be enforceable as if it had been entered into on the date on which notice of the determination was given to the applicant.

(11) The Secretary of State may by regulations make provision with respect to—

(a) the form and content of applications under subsection (2), and

(b) the notices to be given to applicants of determinations under subsection (9).

(12) This section and section 106BC do not apply in relation to an English planning obligation if planning permission for the development was granted wholly or partly on the basis of a policy for the provision of housing on rural exception sites.

(13) In this section and section 106BC—

• “affordable housing requirement” means a requirement relating to the provision of housing that is or is to be made available for people whose needs are not adequately served by the commercial housing market (and it is immaterial for this purpose where or by whom the housing is or is to be provided);

• “the appropriate authority” has the same meaning as in section 106A;

• “the development”, in relation to a planning obligation, means the development authorised by the planning permission to which the obligation relates;

• “English planning obligation” means a planning obligation that—

  (a)

  identifies a local planning authority in England as an authority by whom the obligation is enforceable, and

  (b)

  does not identify a local planning authority in Wales as such an authority.

(14) The Secretary of State may by order amend this section so as to modify the definition of “affordable housing requirement” in subsection (13).

(15) An order under subsection (14) may have effect for the purposes of planning obligations entered into before (as well as after) its coming into force.

(16) The Mayor of London must consult the local planning authority before exercising any function under this section.]

Textual Amendments

F1 Ss. 106BA-106BC inserted (25.4.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 7(1), 35(2) (with s. 7(3)-(5))