New legal loophole allows developers to shirk affordable housing obligations. Photo: Christopher Furlong, Getty
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Developers able to demolish affordable housing provision

A new law is allowing property developers to wriggle out of their affordable housing obligations.

A Bill that was quietly approved last year is allowing property developers to get out of their contractual agreements with local authorities to build or fund affordable homes.

The Growth and Infrastructure Act 2013 introduced new guidelines last April for developers to appeal their affordable housing obligations, if they could prove they would not make a “competitive return” on their developments if they adhered to them.

These obligations require developers to include a prescribed number of affordable homes in residential complexes they build, or else negotiate paying a subsidy to fund those affordable homes being built elsewhere in the nearby area.

Many people would agree that for councils to confer some responsibility for affordable homes onto developers in this way is only fair. After all, left to their own devices, most developers seek to maximise profits by focusing almost exclusively on building lucrative executive accommodation.

The new rules, shoe-horned into the Town and Country Planning Act, mean that residential developers can fight their way out of their obligations, despite having agreed them as a condition of gaining planning approval.

A developer simply has to argue that honouring their agreed contribution towards affordable housing has become commercially “unviable” for their business's development.

The government has introduced this loophole based on the idea that differing economic conditions between the planning stage of a development and its construction or completion can render initial agreements to build or fund affordable housing “unrealistic”.

Not only does the new appeals process seem unfair in offloading all commercial risk from developers on to local councils, but it also appears open to exploitation by rapacious developers who might present cases of confected “economic unviability” in order to maximise profits.

Some recent waivers issued by councils are worth examining. Last October Oldham Council was left £450,000 out of pocket after waiving the subsidy payment that developers Wiggett Construction had agreed to pay in lieu of making a fifth of homes in their new site in Greenfield “affordable”.

The company had originally agreed to pay £700,000 in three stages. Having paid the first installment of around £230,000, the company was due to pay the second upon the sale of the 45th property on the site. Oldham Metropolitan Council decided to waive the subsidy when Wiggett was just one house sale away from that benchmark, however, leading to outrage from local residents.

The same council also allowed another developer, Tamewater Developments, to escape paying more than £280,000 in agreed affordable housing subsidy earlier this month.

According to Construction News, 10 appeals are currently under consideration by the Planning Inspectorate to reduce or eliminate affordable housing obligations under the new law.

Among them are bids to remove requirements for 290 affordable homes in a Gloucestershire development and a £9 million contribution towards affordable housing in Blackpool.

As many developers are only just waking up to the possibilities of this new loophole, the impact on the number of affordable houses built is yet to be realised.

In order to appeal, developers must submit appropriate up-to-date evidence that overturns the original viability appraisal and indicates that they will not make a competitive return under current market conditions.

The crucial question is, of course, what benchmark profit margin equates to a “competitive" return? The government guidance does not spell it out. Industry experts suggest that most developers expect to make in the region of 20 per cent profit. Are local councils simply allowing developers to avoid paying their contribution towards affordable housing if it threatens their usual profit margin?

When the demand for affordable housing has reached such exorbitant and desperate levels as it has across the UK, developers should not be allowed to renege on promised contributions towards their provision whether it threatens their profit or not.

Lucy Fisher writes about politics and is the winner of the Anthony Howard Award 2013. She tweets @LOS_Fisher.

 

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The Brexit Beartraps, #2: Could dropping out of the open skies agreement cancel your holiday?

Flying to Europe is about to get a lot more difficult.

So what is it this time, eh? Brexit is going to wipe out every banana planet on the entire planet? Brexit will get the Last Night of the Proms cancelled? Brexit will bring about World War Three?

To be honest, I think we’re pretty well covered already on that last score, but no, this week it’s nothing so terrifying. It’s just that Brexit might get your holiday cancelled.

What are you blithering about now?

Well, only if you want to holiday in Europe, I suppose. If you’re going to Blackpool you’ll be fine. Or Pakistan, according to some people...

You’re making this up.

I’m honestly not, though we can’t entirely rule out the possibility somebody is. Last month Michael O’Leary, the Ryanair boss who attracts headlines the way certain other things attract flies, warned that, “There is a real prospect... that there are going to be no flights between the UK and Europe for a period of weeks, months beyond March 2019... We will be cancelling people’s holidays for summer of 2019.”

He’s just trying to block Brexit, the bloody saboteur.

Well, yes, he’s been quite explicit about that, and says we should just ignore the referendum result. Honestly, he’s so Remainiac he makes me look like Dan Hannan.

But he’s not wrong that there are issues: please fasten your seatbelt, and brace yourself for some turbulence.

Not so long ago, aviation was a very national sort of a business: many of the big airports were owned by nation states, and the airline industry was dominated by the state-backed national flag carriers (British Airways, Air France and so on). Since governments set airline regulations too, that meant those airlines were given all sorts of competitive advantages in their own country, and pretty much everyone faced barriers to entry in others. 

The EU changed all that. Since 1994, the European Single Aviation Market (ESAM) has allowed free movement of people and cargo; established common rules over safety, security, the environment and so on; and ensured fair competition between European airlines. It also means that an AOC – an Air Operator Certificate, the bit of paper an airline needs to fly – from any European country would be enough to operate in all of them. 

Do we really need all these acronyms?

No, alas, we need more of them. There’s also ECAA, the European Common Aviation Area – that’s the area ESAM covers; basically, ESAM is the aviation bit of the single market, and ECAA the aviation bit of the European Economic Area, or EEA. Then there’s ESAA, the European Aviation Safety Agency, which regulates, well, you can probably guess what it regulates to be honest.

All this may sound a bit dry-

It is.

-it is a bit dry, yes. But it’s also the thing that made it much easier to travel around Europe. It made the European aviation industry much more competitive, which is where the whole cheap flights thing came from.

In a speech last December, Andrew Haines, the boss of Britain’s Civil Aviation Authority said that, since 2000, the number of destinations served from UK airports has doubled; since 1993, fares have dropped by a third. Which is brilliant.

Brexit, though, means we’re probably going to have to pull out of these arrangements.

Stop talking Britain down.

Don’t tell me, tell Brexit secretary David Davis. To monitor and enforce all these international agreements, you need an international court system. That’s the European Court of Justice, which ministers have repeatedly made clear that we’re leaving.

So: last March, when Davis was asked by a select committee whether the open skies system would persist, he replied: “One would presume that would not apply to us” – although he promised he’d fight for a successor, which is very reassuring. 

We can always holiday elsewhere. 

Perhaps you can – O’Leary also claimed (I’m still not making this up) that a senior Brexit minister had told him that lost European airline traffic could be made up for through a bilateral agreement with Pakistan. Which seems a bit optimistic to me, but what do I know.

Intercontinental flights are still likely to be more difficult, though. Since 2007, flights between Europe and the US have operated under a separate open skies agreement, and leaving the EU means we’re we’re about to fall out of that, too.  

Surely we’ll just revert to whatever rules there were before.

Apparently not. Airlines for America – a trade body for... well, you can probably guess that, too – has pointed out that, if we do, there are no historic rules to fall back on: there’s no aviation equivalent of the WTO.

The claim that flights are going to just stop is definitely a worst case scenario: in practice, we can probably negotiate a bunch of new agreements. But we’re already negotiating a lot of other things, and we’re on a deadline, so we’re tight for time.

In fact, we’re really tight for time. Airlines for America has also argued that – because so many tickets are sold a year or more in advance – airlines really need a new deal in place by March 2018, if they’re to have faith they can keep flying. So it’s asking for aviation to be prioritised in negotiations.

The only problem is, we can’t negotiate anything else until the EU decides we’ve made enough progress on the divorce bill and the rights of EU nationals. And the clock’s ticking.

This is just remoaning. Brexit will set us free.

A little bit, maybe. CAA’s Haines has also said he believes “talk of significant retrenchment is very much over-stated, and Brexit offers potential opportunities in other areas”. Falling out of Europe means falling out of European ownership rules, so itcould bring foreign capital into the UK aviation industry (assuming anyone still wants to invest, of course). It would also mean more flexibility on “slot rules”, by which airports have to hand out landing times, and which are I gather a source of some contention at the moment.

But Haines also pointed out that the UK has been one of the most influential contributors to European aviation regulations: leaving the European system will mean we lose that influence. And let’s not forget that it was European law that gave passengers the right to redress when things go wrong: if you’ve ever had a refund after long delays, you’ve got the EU to thank.

So: the planes may not stop flying. But the UK will have less influence over the future of aviation; passengers might have fewer consumer rights; and while it’s not clear that Brexit will mean vastly fewer flights, it’s hard to see how it will mean more, so between that and the slide in sterling, prices are likely to rise, too.

It’s not that Brexit is inevitably going to mean disaster. It’s just that it’ll take a lot of effort for very little obvious reward. Which is becoming something of a theme.

Still, we’ll be free of those bureaucrats at the ECJ, won’t be?

This’ll be a great comfort when we’re all holidaying in Grimsby.

Jonn Elledge edits the New Statesman's sister site CityMetric, and writes for the NS about subjects including politics, history and Brexit. You can find him on Twitter or Facebook.