Viability Appeal Sunset Will Cast A Little Shadow

Changes to the section 106 regime under the Growth and Infrastructure Act 2013, allowing affordable housing obligations to be modified on viability grounds, fell away last month, despite earlier indications that they might be retained.

Sections 106BA and 106BC came into force in April 2013, subject to a "sunset clause" killing them off after 30 April 2016.

The question remains: can an appeal be entertained once a scheme is completed?

The government's decision not to extend perhaps reflects the fact that we are no longer in recession and that, where policies are being applied properly, the stalling of some schemes is down to bad planning and not bad luck.

It may also reflect the odd outcomes that have crept into the process on appeal, including modifications that do not demonstrably enable schemes to become financially viable in the current market, and some inspectors' refusal to entertain requests to modify contributions on outline permissions.