Select Committee on Transport, Local Government and the Regions Memoranda

Supplementary memorandum by The Countryside Agency (AFH 62(a))




  In response to the failure of current planning mechanisms to deliver the affordable housing needed in many rural areas the Countryside Agency has developed an alternative policy. This has been given the name, sites for social diversity (SSD). The form and detailed content of the policy has evolved through discussions with a wide range of groups who are involved in the provision of affordable housing. (A list of those consulted appears at Annex A.) We have submitted the policy for legal opinion and now have the QC's opinion which is in two parts.


  The objective of the SSD policy is to redress the socio-economic imbalance which exists in rural communities as a consequence of the operation of the private housing market.

  The policy has been framed so that it complies with the existing legal framework for land use planning and is in line with the objectives and guidance of PPG3. It therefore has the following characteristics:

    —  it is tenure neutral;

    —  it seeks to contribute to the government's objectives of:

    creating mixed and inclusive communities

    providing a decent home for those who need one

    promoting sustainable development, encompassing social, economic and environmental needs; and

    —  it would assist the Government to meet its Rural White Paper objective of increasing provision of social and affordable housing in order to sustain balanced communities.

  The policy also seeks to overcome some of the obstacles which limit the success of existing policies in that:

    —  it is a plan-led approach and therefore offers transparency and certainty. This is required by developers and local communities;

    —  it will reduce the development cost of the land subject to SSD allocation, making it financially viable to provide affordable housing, including social rented housing on site; and

    —  it provides a mechanism for meeting social needs without compromising conservation of the countryside.


  A local authority will allocate SSD in those parishes where it can be shown that compared with the regional pattern there is currently an imbalance in the socio-economic profile of the population and housing provision of specified parishes. This will be by reference to information on local incomes and profile of the existing housing stock, by council tax or land registry records. These parishes will also be likely to be subject to policies of development constraint as part of a suite of polices aimed at conserving the countryside. Planning permission will be given on these sites when the development provides the housing needed as shown in a current and robust Housing Needs Assessment.

  A draft of a local plan policy is attached.


  The Countryside Agency with advice from a planning solicitor instructed counsel for an opinion on the legality of its proposals. The instruction included a statement setting out the background and objectives to the policy along with a draft local plan policy. Counsel was asked for opinion on five areas:

    —  When an LPA allocated a site for social diversity would there be grounds for legal challenge on the grounds of unlawfulness of a policy whose purpose was to restrict tenure or occupation rather than use?

    —  If an LPA has undertaken a robust Housing Needs Assessment, does C6/98 already provide sufficient scope for requiring higher levels (100%) of affordable housing in settlement of less than 3,000 population?

    —  Can the designation of sites for social diversity be protected in the long term on the basis of projected rather than current housing need, with release being promoted through the policy of Plan, Monitor, Manage?

    —  Could sites for social diversity avoid the problem of incompatibility sometimes associated with quota sites where there may be no direct relationship between the planning obligation and affordable housing?

    —  Would the occupancy criteria, which were rejected as unlawful in the Royco case, be subject to the same criticism in the light of the development of affordable housing policy?


  The legal opinion has been given in two parts. The first deals with the legality and the second specifically with PPG3.


  This was founded on a detailed examination of case law and guidance and concluded:

    —  that the policy was likely to be a source of objection to the Deposit Plan, however

    —  the designation would survive legal challenge despite the fact the purpose of the policy was to restrict tenure and occupation rather than distinguish between uses. This is because the need for housing is accepted as a material consideration, as is the need for particular types of housing;

    —  that future need for affordable housing will be one of a number of material considerations and the decision will depend on a reasonable balance being made of all material considerations in any given case. The safest sites would be those which would not have been allocated at all but for the particular need;

    —  the objective of the sites for social diversity complies with government policy in relation to promoting mixed communities and avoiding social exclusion. Moreover as much of what is considered "law" is in fact guidance in relation to affordable housing LPAs can depart from guidance for good reasons; and

    —  that the policy does not infringe Human Rights legislation as long as interference was justified as being necessary to achieve a good social and economic balance within the community and proportionate to its impact on the individual concerned.

Relationship with PPG3

  This was based on further clarification of the policy provided by the Countryside Agency through its solicitor. The opinion concluded:

    —  the objectives of SSD policy fall within the objects at the heart of PPG3 in its concern to provide for rural communities to re-establish or retain socially inclusive mixed communities with housing available for people with local connections;

    —  it is appropriate in the light of PPG3 for local planning authorities to allocate SSD sites in local plans where their use is justified;

    —  the advice of PPG3 contemplates that where such sites are proposed to meet local needs for affordable housing they may be allocated in local plans;

    —  the reservation of housing provided within SSDs for local needs is in accordance with PPG3. But the policy could be in conflict with PPG3 in so far as the policy could suggest that in all cases where the proposal is to provide rural affordable housing the entire site should be reserved for that purpose.

    (In the detailed explanation the opinion states that it would be inappropriate to express the general policy as requiring 100% affordable housing as a starting point. In some instances this may be appropriate but would need substantial justification in the context of the local plan's preparation.)

    —  Care should be taken in the explanation of the objective of the policy with the use of Council Tax bands.

    (The detailed explanation is concerned that these may change over time and not offer the perpetuity being sought. It advises that perpetuity should be expressed as providing homes for those with local connections and remain restricted to occuaption by those with a local need in perpetuity.)

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