Local publication and monitoring of tilted balance applications
What It Delivers
Publicly tracks when tilted balance is used and what conditions are attached.
Function
Create a public registry of tilted balance approvals with delivery expectations, timelines, and profitability benchmarks.
Legal Basis
Administrative Best Practice
Completion Criteria
EHDC maintains and publishes a real-time log of all approvals justified under National Planning Policy Framework (NPPF) Paragraph 11(d), including delivery conditions.
How to Implement
EHDC to publish in real-time with tracking dashboard.
🧩 Component 6: Raised Affordable Housing Expectations on Tilted Balance Sites — What It Actually Means
This component ensures that when planning permission is granted outside the Local Plan — typically under Paragraph 11(d) of the National Planning Policy Framework (NPPF), known as the tilted balance — the developer must provide greater public benefit, especially in the form of affordable housing.
⚖️ What Is the Tilted Balance?
The tilted balance applies when a local authority lacks a five-year housing land supply or its Local Plan is considered out of date.
Under NPPF Paragraph 11(d):
Permission should be granted unless the adverse impacts of doing so would significantly and demonstrably outweigh the benefits.
📌 This means:
Councils must approve most developments unless they can prove significant harm.
It shifts power toward developers, making it harder to refuse out-of-policy schemes.
This makes it essential to set higher expectations when granting these exceptions.
🏘️ What This Component Does
Sets a policy or practice expectation that tilted balance approvals must exceed the standard minimum requirement for affordable housing, unless viability testing proves otherwise.
Signals to developers that “policy deviation = higher public obligations.”
Creates a negotiating baseline for planning officers to push for additional affordable units — e.g. 50% instead of 40% — on out-of-policy sites.
Requires developers to accept lower profit margins, enforced through open-book viability assessments, to reflect the exceptional planning benefit they are receiving (i.e. being approved despite policy conflict).
⚙️ How It Works in Practice
Use S106 Agreements (legal contracts tied to planning permissions) to set specific targets.
Embed expectations in:
Internal case officer guidance,
Supplementary Planning Documents (SPDs),
Committee resolution templates for tilted balance cases.
Require developers to:
Declare projected profit margins, and
Prove via open-book accounting that they can’t meet the higher targets.
🧠 Why This Is Strategic and Necessary
Approvals outside the Local Plan are exceptions — not entitlements.
These approvals should:
Deliver more affordable housing,
Justify profit levels, and
Offset the harm of breaching planning policy.
This tool restores balance to a system that otherwise benefits speculative developers — and ensures communities receive maximum value when policy protections are relaxed.
✅ Legal and Policy Basis
Local Plan policies: May include discretion to increase obligations where developments are out of policy.
NPPF Paragraph 58: Viability testing is only required when developers contest policy obligations.
S106 Agreements: Can legally enforce affordable housing percentages and delivery phasing.
PPG on Viability (Planning Practice Guidance): Requires open-book, transparent viability assessments.
🧩 Component 5: Profit-Linked Contribution Clauses — What It Actually Means
This mechanism ensures that if a developer ends up making significantly more profit than they originally forecast, they must return a portion of those excess profits to the council or community.
💡 How It Works
At the time of planning approval, the developer submits a viability assessment (a financial forecast showing costs, revenues, and expected profit).
This assessment is used to agree contributions — for affordable housing, infrastructure, or community benefit — based on their projected margin (typically 15–20% of GDV, or Gross Development Value).
A clause is added to the Section 106 Agreement (a legal contract between the developer and the council to manage impacts of the development) that says: “If actual profit exceeds projected profit beyond a certain threshold, the surplus must be shared — e.g. by paying additional funds toward infrastructure or local benefit.”
📌 This does not mean changing built homes into affordable housing post-completion. It refers to financial top-ups only — sometimes called a “clawback.”
🔄 What If Developer Profit Is Lower Than Expected?
These clauses only claw back excess profit — they do not require the council to reimburse or reduce agreed obligations if the developer earns less.
The risk of lower-than-expected profit stays with the developer. This is standard commercial risk and not grounds to change planning obligations after approval.
🔒 Why It Matters
Developers are incentivised to report costs and profits accurately upfront — otherwise, they may face a clawback.
It ensures the community gets a fair share of value created by rising land prices, lower costs, or better sales.
This mechanism adds public accountability and discourages speculative overpromising or manipulation of viability data.
