The case revolved around a s.73 application to vary a condition which required housing types, standards and floor plans to be in accordance with approved plans and for a housing mix to be provided in accordance with an approved accommodation schedule. The variation got rid of the proposed affordable housing element.
The application was refused by the council on the grounds that the variation conflicted with the terms of the s.106 agreement. At the appeal, the Council entered into a deed of variation on a without prejudice basis. This eliminated the affordable housing provisions of the s.106 if the appeal was allowed. The appeal was granted.
The court considered the legal tests for varying controls on affordable housing provision. The court found the case involved a condition which included a requirement for affordable housing and a deed of variation which addressed the conflict with the s.106. The court dismissed the challenge.
This provides an illustration of the circumstances in which a s.73 application can be used to vary an affordable housing obligation. This is likely to prove attractive to housing developers who face a deterioration in the viability of a site. However, the s.73 route will only be available if there is a relevant planning condition which controls affordable housing provision. If there is not a condition “hook”, this route falls away.
