The High Court ruling, handed down in July, quashed the policy, which excluded developments of ten homes or fewer, or 1,000 square metres or less in floorspace, from the requirement to provide or contribute to affordable housing.
The rulingfollowed a legal challenge launched by Reading Borough and West Berkshire District Councils, prompted the removal of paragraphs from a section on planning obligations in the national planning practice guidance related to the small development policy.
The guidance is said to have contravened the Planning and Compulsory Purchase Act 2004’s presumption in favour of the development plan, and that the consultation process had been unfair.
At the time, the DCLG said it would be seeking permission to appeal against the judge’s decision, as it would have a "disproportionate impact on smaller builders who are important in providing homes for local communities".
In a statement issued by a DCLG spokesman, it said: "We can confirm we have been granted permission to appeal against the judge’s decision on the West Berkshire and Reading court case."
Builders warned that the removal of the guidance would lead to fewer homes being built as small firms respond by avoiding attempting to develop certain sites.
The ruling also posed problems for a number of local planning authorities. A clutch of local plans, including adopted plans and documents submitted for examination, contained affordable housing policies informed by the now-revoked guidance.
The judgment also created difficulties for councils that had incorporated the now-deleted guidance into their draft Community Infrastructure Levy charging schedules, typically opting to charge higher rates for smaller residential schemes because of higher levels of viability resulting from the affordable housing exemption.
We can expect this appeal to take several months and in the meantime the present situation applies – the policy is not in force and so local affordable housing thresholds apply.