Out-Law / Your Daily Need-To-Know

The Housing and Planning Bill – housing heaven or headache? A look at PiP and registers

Out-Law Analysis | 29 Oct 2015 | 3:46 pm | 6 min. read

FOCUS: The Housing and Planning Bill released last week has started its passage through parliament. 

The Bill lays out the framework through which the government hopes to deliver new homes under a faster and more streamlined process. As with many new pieces of legislation, however, it will be the detailed draft regulations and guidance still to be issued that will provide a clearer picture of how this will impact on the delivery of homes and how the various initiatives will operate together.

However, there are practical implications that can be considered now. In the second in a series of articles that focus on issues related to the delivery of housing via the planning system, we look at the provisions on 'planning permission in principle' and land registers.

Planning permission in principle (PiP)

The Bill introduces an automatic 'planning permission in principle' for certain allocated housing sites in England to avoid unnecessary delays during the planning process where such sites might be tested for suitability multiple times.

The main proposals relevant to PiP are that

automatic planning permission in principle will apply for prescribed developments granted either through a development order or following a planning application; that PiP will berelevant to certain land allocated in adopted or emerging development plan documents and neighbourhood plans, and also land on a new statutory register of brownfield land; and that technical details consent will be required to be obtained via an application.

Enabling PiP to be granted

The proposals enable PiP to be granted in two ways.

Firstly, through a further extension of permitted development rights by enabling the secretary of state (SoS) to make a development order which will itself grant unconditional PiP for specified development on allocated sites (PiP through plans and registers).

The second route is via a SoS development order which would enable the local planning authority (LPA) to grant an unconditional PiP following an application made to it (PiP following an application). The explanatory notes in the Bill state that the application process to be followed by applicants and LPAs for this second route will be set out in an amendment to the Development Management Procedure Order 2015.

Generally the SoS has power to issue statutory guidance that LPAs must have regard to in relation to PiP. We assume that the guidance coupled with the detailed development order(s) will specify which developments will benefit from 'PiP through plans and registers' and which developments will benefit from 'PiP following an application' with the latter potentially dealing with development that may have greater local impacts.

The land in respect of which PiP can be given must be land that is allocated in a "qualifying document" for development of a prescribed description. A "qualifying document" will be further defined in the development order but initially is expected to include adopted, emerging and updated local plans, neighbourhood plans and registers including the brownfield land register. However, it is understood this will apply only to future allocations, not existing allocations by reference to a cut off date to be specified in forthcoming regulations.

The PiP will take effect when the qualifying document is adopted or made by the LPA and so in respect of emerging documents or revisions to allocations in existing documents, the PiP will not come into effect until the time of adoption or making of that document even if it has been granted before that date. For some sites therefore there will be a time delay until the PiP can take effect.

Importantly, the Bill currently contains no details of, or restrictions on, the types or scope of development for which PiP might be granted. It could therefore in theory include greenfield as well as brownfield land and extend beyond housing developments. The government's intention however, set out in the explanantory notes, is that PiP granted through plans and registers will initially be restricted to sites suitable for housing (use), location and amount of development.

For PiP granted following an application, the explanatory notes state that the use of PiP will be initially restricted to minor housing developments creating fewer than 10 units. This would indicate a longer term intention to roll out PiP for other developments or larger housing developments, presumably if it operates successfully in practice. Final details would be confirmed in the relevant development order.

Before a PiP becomes a fully implementable planning permission, an application for technical consent must be made to the LPA. A fee is likely to be payable for this application. The application must relate to the land in respect of which PiP is in force, propose development all of which falls within the terms of the PiP and particularises all matters necessary to enable planning permission to be granted without any reservations e.g. there will be no reserved matters applications. There will be no consideration of the principle of the development at this stage - the purpose of PiP is that the principle has already been established.

It is not yet clear whether these permissions will attract a Community Infrastructure Levy (CIL) or could be subject to section 106 obligations including on affordable housing. It is conceivable that the government might use PiP developments as an opportunity to re-introduce the small sites policy exempting them from affordable housing contributions and tariff based contributions, assuming that it is successful in its appeal against the judgement of the High Court which resulted in the policy being removed from the PPG.

It is also not yet clear whether you could have a PiP for Starter Homes as part of a wider housing development or even as a stand-alone site. This could turn on the particular site in question and how and when it was allocated for housing.

Registers

A duty on LPA's to hold a register of various types of land, with the intention of creating a brownfield register to facilitate unlocking land for development, particularly housing is contained in the Bill

The Bill gives the SoS power to make regulations relating to the creation of registers. The explanatory notes state that the SoS intends to use this power to direct LPA's which are responsible for determining housing applications to compile a register of "brownfield land", previously developed land, which is suitable for housing development, however other types of register could be developed in the future. The brownfield register is intrinsically linked to the PiP proposals above.

The regulations allow the SoS to prescribe criteria which the land must meet for entry in the register and may require the register to be kept in parts. The explanatory notes envisage that for the brownfield register, prescribed criteria could include that the "land must be available already or in the near future for housing development, that it must not be affected by physical or environmental constraints that cannot be mitigated and that it must be capable of supporting five dwellings or more".

They go further and suggest the brownfield register could be split into two parts, the first listing sites suitable for housing meeting the criteria, and the second listing land appearing in the first part which the LPA considers is suitable for a grant of PiP and which additionally has been through a process of consultation.

The LPA is required to have regard to the development plan, national policies and advice and guidance issued by the SoS when compiling the register. The explanatory notes indicate that brownfield land which is not designated for housing in the local plan could not be entered onto the register as suitable for housing.

This seems a little at odds with the Starter Homes provisions, which seek to bring underused and unviable sites not currently designated as housing sites into use for housing - it would seem sensible to include these sites in the register.

Also, would this prevent suitable brownfield self-build and custom housebuilding plots being included in the register where they are not currently allocated for housing? There is however provision for exceptions to be made to include or exclude sites from the register but we will have to await the details of those to see if it clarifies this issue. Again this will be an additional burden on LPA's already stretched resources.

Richard Ford and Kate Brock are housing and planning law experts at Pinsent Masons, the law firm behind Out-Law.com

For further information, please contact:

London: Richard FordIain GilbeyNicholle KingsleyMarcus BateRichard GriffithsRobbie Owen

Birmingham: Rebecca Warren

Leeds: Jonathan Riley

Manchester: Mike Pocock