It was common ground, by the time that evidence was exchanged, that there had been a breach of the section 106 agreement, that the developer had sold open market units before transferring the affordable housing units to a registered provider and that it had also let out two affordable housing units on the open market.

The consent order approved by the High Court restrains the developer from acting in breach of the section 106 agreement and from using any of the affordable housing units for any purpose other than as affordable housing. It also restrains the developer from allowing the occupation of any further open market units until the affordable housing units have been transferred to a registered provider for use as affordable housing.

The developer has recently submitted an application to vary the section 106 agreement to allow the payment of a financial contribution in lieu of on-site provision. If that application is not successful, or is withdrawn, the consent order requires the developer to secure vacant possession of the units which have been let on the open market and to only permit their use as affordable housing units in the future.

The defendant has also agreed to pay the Council’s costs.

Mark O’Brien O’Reilly, instructed by Joe Walker and Angelica Botta of Sharpe Pritchard LLP, acted for Bath and North East Somerset Council throughout the proceedings.