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A developer will make no payments towards social infrastructure projects after a last-minute change of mind over the number of affordable housing units to be built.
Wealden Land Ltd, part of Wealden Homes, originally submitted a planning application for 53 homes on land west of Loder Close in Lenham.
The application on a 1.85 hectare field formerly used for horse-grazing was first submitted in December 2018 and showed 21 affordable units would be built, although the developer made a point of emphasising there would be no difference in design between the affordable and the market properties.
The 21 units met the borough's target for such a development providing 40% affordable housing, and so in August 2019, permission was granted despite local objections subject to the formal submission of a Section 106 legal undertaking that the development would include 21 affordable units, which was later signed.
The following month, the council sent the developer a notification of its liability to pay Community Infrastructure Levy (CIL) to the tune of £469,000 which would help pay for local improvements including £159,00 for extra primary school places, £197,000 for extra secondary school places as well as contributions towards community learning, youth services, the library and social services.
Community Infrastructure Levy is applied at a fixed rate per sq ft of floor space created, but by law, affordable homes are excluded.
In April this year, the developer applied for mandatory CIL relief on the whole development saying it was now the intention to build all 53 properties as affordable homes. It is entitled to make this change.
The outcome angered Lenham Ward councillor Janetta Sams who said it was not the planning application that had been agreed and said planning officers should have brought the matter to planning committee for review.
But Cllr Denis Spooner (Con), the chairman of the planning committee said: "Officers took legal advice and it was confirmed that the decision of the developer to provide 100% affordable homes did not require either a variation of the planning permission nor a variation of the Section 106 agreement.
"They are perfectly within their rights to do this if they wish. There's nothing we can do to alter the decision.
"However, the situation at Loder Close could occur elsewhere. The head of planning has advised that future S106 agreements will now be written in such a way that the affordable housing quantum is 'capped' at the policy rate, so that a deed of variation is required to make any adjustment to it.
"It is also expected that a refreshed affordable housing policy in our Local Plan Review will enable the council to cap affordable housing at the appropriate percentage."
Cllr Sams said: "I cannot believe that the planning committee would have passed this application if it had been presented with no CIL or S106 monies.
"They would have demanded monies for infrastructure, that would have been paramount, yet we are told that nothing can be done.
"We feel that discussion can still take place to ensure Lenham doesn’t completely lose out.
"There is a new nursery due to be built which is much needed with the new housing and families moving into the village, but money is required to allow this project to go forward."
John Britt is chairman of Lenham Parish Council. He said: "We have lost out on the parish council's share of the CIL payment,which would have been £50,000, that's a huge amount to us that we had planned to put towards the nursery."
He said: "We have engaged a barrister and instigated a second stage complaint to the borough over the way this was handled by officers. We believe after the proportion of affordable housing was changed, the application should have been taken back to councillors to seek alternative mitigation payments.
"Families in affordable housing still require school places and still need doctors' surgeries.
"It is also very worrying for the future."
Separately, another developer, Countryside Properties, is also due to build in Lenham.
But on July 7, Countryside announced it will no longer build private homes for sale, but will partner with social housing providers to build affordable homes. This has led to fears that the village will miss out again on money to improve infrastructure.
Cllr Britt said: "Countryside is scheduled to provide over 400 homes in Lenham, so now instead of 160 of those being social housing it is possible that all 400 would fall into that category.
"Imagine the loss of infrastructure funding to the system."
Cllr Britt warned other communities: "This issue of lost CIL money affects not just Lenham, but everywhere."
It is not the first time the borough's planning officers have been criticised over this application.
As long ago as June 2019, the borough's chief planner was accused of failing to give members of the planning committee the full picture when asking them to approve the scheme. It was alleged that he gave incomplete advice on the benefits of charging CIL over traditional 106 payments.
It was also said planning officers had reported to councillors that the police had approved the location of the play area, when they had not.
Wealden Homes was contacted over the change of plan, but the managing director was away and no-one else was authorised to comment.
