Land Buyers and Affordable Housing Developers

Faraday Development Ltd v West Berkshire Council


Over recent weeks there has been a re-emergence of the debate amongst colleagues and peers in relation to developer led public sector projects, the case of Faraday Development Ltd v West Berkshire Council (2018), and the implications for developer led land and works package deals.


For developing RP’s proactively engaged in securing individual land led package deals for the delivery of new housing, there should be no debate. If the land is supplied, the scheme specified and substantially determined by the developer delivering the packaged scheme, who then does not determine unilaterally who the build contractor will be, and which is effectively delivered immediately, there is no confirmed demonstrable breach of Public Contracts Regulations.

In practice, this housing delivery method is not dissimilar to an RP securing another key supply of new build housing via a s106 Agreement and retrospectively adjusting the design and specification of that housing by subsequent agreement, a method of delivering affordable housing that has been in place since the Town & Country Planning Act 1990.

Of course, there is mixed use schemes being procured about the country which are much more complex than a straightforward land led package scheme for housing, or an s106 Agreement, and this will always be the case. If a public body introduces its own land to the deal under a Development Agreement with land draw down stages into the future, as in the case of Faraday v West Berkshire, then it is certainly not a straightforward developer land led package deal.

The provision of new build affordable housing schemes must be done properly, whichever the delivery route. Land led package schemes have been around for many years, and now provide a substantial proportion of affordable housing delivery nationally, a proportion we really cannot manage without.

At a time when access to public land for new housing development is at its lowest level ever, whilst affordable housing demand is at its highest, when renting Millennials may never be able to afford any housing accommodation in their later years, it would be a profound breach of our inter-generational duty not to collaborate, to press on and deliver now, that which will be most needed tomorrow.