Mayor wins 'Pyrrhic victory' in legal battle

Last week, a judge refused their call for a judicial review of mayor of London Sadiq Khan’s decision to issue Supplementary Planning Guidance (SPG) last year, and now they have filed a request for the decision to be reconsidered in a hearing in open court.

The quartet argue that “few if any” retirement housing schemes will come forward as a result of the planning rules, which provide a fast-track through the planning system for schemes that have 35% affordable housing.

They say they wouldn’t qualify for the fast-track and would automatically be placed on the more uncertain slow path. But does their argument hold water and will the new rules really make it ‘virtually’ impossible to develop new schemes in London?  

”Local planning authorities seem determined to pigeonhole them into policies designed to tax housebuilding by affordable housing levies”

Carl Dyer, Irwin Mitchell

The retirement developers, who together account for about 90% of the market, claim that the way later-living schemes are managed makes it difficult to provide affordable homes on site. The higher build costs for retirement schemes also make it harder to provide as much affordable housing as would be viable for a standard housing scheme, they argue.

However, Khan appears to have little sympathy with their plight. Following last week’s ruling on the developers’ request for a judicial review, a spokesman for the mayor said: “We are extremely pleased with the judge’s decision.”

He added that the guidance sets out “a clear approach” to boost affordable housing and make the planning system in the capital “clearer, quicker and more consistent”.

’Undoubtedly’ harder

Planning experts are unconvinced by the mayor’s arguments. John Sneddon, managing director of Tetlow King Planning, says the new rules will “undoubtedly” make it harder for retirement living developers to build in London.

“There’s a lack of flexibility in the planning document,” he says. “It doesn’t take into account the specialist product that they are providing and is simply too hard-line. It is close to discrimination.”

Irwin Mitchell partner Carl Dyer, who specialises in planning and development, is also highly critical of the mayor’s stance.

“This will prove a Pyrrhic victory for the mayor,” he says. “He may have affirmed his ability to tax retirement housebuilding, but he will get less of it as a result. It is profoundly sad that instead of welcoming and encouraging diverse measures to address our housing crisis, local planning authorities seem determined only to pigeonhole them into policies designed to tax housebuilding by affordable housing levies.”

As the developers’ legal battle against the mayor’s SPG rumbles on, one thing appears certain: unless the current rules change, Khan will not succeed in ramping up retirement housebuilding in the capital to the 3,900 units a year targeted in the London Plan.