Affordable Housing, Viability, Vacant Building Credit and Poor Doors vital issues at Brent Planning Committee

The issue of 'viability assessments' where developers attempt to reduce the amount of affordable housing in developments that have already started has been well documented recently. This article from last year sets out the issues with passion LINK

Brent's Planning Committee on Thursday will receive a report which, between the lines, sets out how the Government and London Mayor are seeking to tie the hands of councils wanting to build affordable housing.

London councils have been trying to work together to develop a Protocol over  the issue and are considering employing consultants to respond to the developers' claims.

The report LINK states baldly:

 Government still wants to be seen to be encouraging additional housing development. Recent policy announcements such as the Starter Homes Initiative and the Vacant Buildings Credit both see normal affordable housing planning requirements as an expendable component in the delivery of this aim.

  The Vacant Building Credit was introduced by Ministerial Decree in November 2014:

The basic premise is that in order to support brownfield regeneration, development of empty or redundant buildings should be further incentivised. This is through reducing or potentially removing affordable housing contributions normally sought from qualifying housing developments. The Practice Guidance gives no flexibility on the application of the Credit related to a development’s viability. Consequently even if the development could in any case afford to provide policy compliant affordable housing amounts the Credit still applies.

The officers comment that details of the policy are inadequate and it is unclear to what extent it will affect Brent LINK but propose:

Vacant Building Credit will only be applicable to:

i) the Gross Internal Area of buildings (buildings as defined in the Community Infrastructure Regulations)

ii) buildings that have been in lawful use for a continuous period of less than six months in the three years before which planning permission first permits the chargeable development

What will certainly affect residents and those seeking affordable housing is the issues around developer profits and viability assessments that reduce the amount of affordable housing in developments, as well as the requirement to increase social rents to market levels. It is worth quoting the report LINK in detail here:

.    Notwithstanding the increases in values and delivery rates within the housing market and the viability of housing developments, Government still wants to be seen to be encouraging additional housing development. Recent policy announcements such as the Starter Homes Initiative and the Vacant Buildings Credit both see normal affordable housing planning requirements as an expendable component in the delivery of this aim. In addition developers can still appeal agreed Section 106 affordable housing levels on the basis of viability direct to the Secretary of State through changes introduced by the Growth and Infrastructure Act 2013. The adoption by the Council of the Community Infrastructure Levy (CIL) reduces the element of discretion that the Council has in relation to infrastructure matters that previously would have been captured through S.106 obligations. This means that when viability is raised as an issue, affordable housing represents a larger cost within what is a smaller contributions ‘pot’ around which there is flexibility to negotiate. 


.    Local authorities’ ability to control rents in S.106 obligations, following the move away from social rent as the preferred rented product, have been hindered by a judgement supporting the Mayor’s London Plan policy position of restricting such an approach. (LB Islington & Others v Mayor of London & Another - CO/16997/2013). The general assumption at national level (and followed through by the Mayor) is that affordable tenants should be paying higher amounts of rent more reflective of market levels. Where tenants find this unaffordable, they are initially supported by benefits. When benefits become insufficient, tenants should move on to options that they find affordable. Whatever the merits of this approach Planning has to work within these parameters.

.    3.12  Notwithstanding the potential progression of the protocol it is recommended to Committee that Brent in the mean time issues a position statement/guidance that seeks to ensure that as much of the information contained in viability assessments and ideally all can be viewed by the public. Where the developer is adamant that commercially sensitive information is contained within that they do not want to be disclosed, the Council will require an document that provides as much information as possible in the public domain. An easily understandable Executive Summary document should also be provided to be made available so that the opportunity for greater transparency exists.

Islington Council has set out its requirements on viability assessments fully with a detailed process that begins at the pre-application stage and is a document that Panning Committee members should study in detail. LINK

 Another controversial issue which Planning Committee has encountered is that of 'poor doors', separate entrances in mixed developments for 'market' and 'social residents. This is what officers say on the issue:

Tenure Blind development

.    3.18  There have been concerns and media coverage about ‘poor doors’ and highlighting differences in tenure related to design. The current Mayor’s Housing SPG in paragraph 1.3.18 is clear: “Schemes should be designed to maximise tenure integration and all affordable housing units should have the same external appearance and entrance arrangements as the private housing.” The Draft Interim Housing SPG recently issued for consultation has a slightly different approach to entrances. It states: “In some higher density schemes, separate provision of entrance and circulation spaces for different tenures may enable affordable housing provision which might otherwise be made unviable given high service charges and management arrangements. All entrances will need to be well integrated with the rest of the development...” 


.    3.19  Both documents are clear about the design being the same but reflect the real practicalities of dealing with management charges in particular. Case law has clarified that cross-subsidisation between tenures for management charges are not legal. Many private occupiers/tenants expect the prices they are paying for properties to reflect additional levels of service/standard related to the communal areas. Unsurprisingly Registered Providers are not keen for management charges to be higher than they need to be for their tenants/leaseholders. They want to control the charges as much as possible. They are also reluctant to be reliant on a third party freeholder/managing agent in managing those costs.

.    3.20 Compared to some rents, service charges can provide significant additional cost. For the purposes of benefits they are also regarded as part of the affordable rent charged. This increases risk to the Registered Provider of having to meet the cost out of other funds, thus impacting on overall affordable housing delivery. If there are risks of high charges, it will also affect the interest of Registered Providers in purchasing the affordable dwellings. Officers will seek to ensure that wherever possible tenure blind development occurs, however there may well be practical reasons why there may need to be differentiation in approach or physical separation between tenure types.

 This appears to leave wide open the potential for the continuation of at least some 'poor doors' developments in Brent.