The tripartite test

How do you tell the difference between a development scheme which has been artificially divided in order to avoid a requirement for affordable housing provision and one which hasn’t? You apply the tripartite test, that’s how.

An inspector dealing with an appeal against the refusal of planning permission for a roof extension to provide an extra two flats on an existing block of nine flats in south London (DCS Number 400-016-857) explained that the relevant case law is found in R (Westminster City Council) v First Secretary of State and Brandlord Limited [2003].

The inspector recorded that development plan policy was that for a scheme of 11 units two would be expected to be affordable. She acknowledged that pre-application enquiries were made in around 2013 in relation to a proposal that included 11 flats at the site, but judged that this was significantly prior to the completion of the nine-flats scheme in 2015, noting that it did not lead to a planning application. With regard to case law, she cited the 2003 Westminster case in relation to whether two development proposals could be aggregated or considered to form part of a larger whole. She explained that the resulting ‘tripartite test’ for considering whether a proposal constitutes phased development relates to ownership, whether the site is a single planning unit, and whether the development should be treated as a single development.

In the appeal before her, the site ownership relating to the proposed two-unit extension remained unchanged from the implemented nine-unit scheme and there was no dispute that the site formed a single planning unit. However, she held that these two factors did not by themselves demonstrate that the proposed extension to the completed development should be considered an additional phase of the original development.

The inspector accepted that simply waiting until completion prior to making a further application for development on a site did not in itself absolve any phasing-related requirements. On balance, however, having regard to the particular scale and nature of the proposal, the existing development and its surrounding context, the planning history of the site, and the relative timescales of the applications and completed development, she considered that the appeal proposal represented an extension to the existing development, rather than a phased addition to a single development or amendment to it. She was not persuaded that it had been demonstrated that the original proposal was deliberately designed to avoid the affordable housing threshold of 10 units, having regard to site capacity considerations, or as a first phase of a larger single development. Therefore, given that the scheme before her related to two units it would fall outside the threshold for affordable housing as set out in the development plan and so a S106 planning obligation would not be required. She concluded that the proposed development did not attract a requirement for the provision of affordable housing.

For comprehensive commentary on this topic see DCP Online chapter 7.3333 Threshold manipulation.

One Response to “The tripartite test”

  1. RichardW

    There is a useful discussion of Brandlord in New Dawn Homes Ltd v Secretary of State for Communities and Local Government [2016] EWHC 3314 (Admin) (20 December 2016), including the key comment: “Thus, Brandlord did not lay down any principle or rule that circumstances of the kind there considered must be treated as involving separate developments for the purposes of applying an affordable housing policy threshold.” It’s a drum that I keep banging, but a legal ruling that a particular approach to a particular problem was lawful IS NOT a binding direction (or even a ruling precedent) that all similar problems MUST be dealt with in the same way.

Leave a Reply

You must be logged in to post a comment.