'Permission in principle' for brownfield housing sites to come into force next month

Out-Law News | 30 Mar 2017 | 11:22 am | 3 min. read

Provisions in the 2016 Housing and Planning Act (the Act) that grant planning in principle to housing-led development on registered brownfield sites in England will come into force next month, according to recently-published secondary legislation.

The 2017 Permission in Principle Order, which comes into force on 15 April 2017, will provide automatic permission in principle (PiP) for housing-led development on land included in part 2 of the new brownfield land registers, which must be published by each local planning authority (LPA) by the end of this year. Separate regulations to create brownfield land registers come into force the following day.

"The regulations fulfil the government's manifesto objective to ensure that brownfield land is used as much as possible for housing, and to require local authorities to have registers of brownfield land suitable for housing," said planning law expert Victoria Lindsay of Pinsent Masons, the law firm behind Out-Law.com.

"Local authorities already collect information on housing land supply, including brownfield land, as evidence for local plans so this shouldn't add to their burden, albeit the data collected has not always been necessarily consistent or easily accessible. The new registers should support a general increase in housing supply provided that the registers are kept up to date. They will also provide greater certainty for developers that the fundamental principles of development are acceptable before developers need to get into costly, technical matters," she said.

Orders bringing into force PiP for land allocated for housing-led development in local plans and neighbourhood plans, as also provided for in the Act, will be published separately at a later date.

PiP is designed to separate decision-making on issues such as land use, location and amount of residential development from matters of technical detail, and so reduce opportunities for delay to new housing development during the planning process. Where PiP has been granted, a scheme will receive full planning permission once the relevant LPA has consented to the technical details. The acceptability of the 'in principle' issues cannot be reopened at the technical stage. Once granted, PiP for a particular site will last for five years unless the LPA sets a longer or shorter period.

The new regulations give effect to the requirement for LPAs to prepare, maintain and publish a register of previously developed 'brownfield' land which is suitable for residential development. This register must be split into two parts: part 1, listing all the land in that area that meets the criteria; and part 2, listing land which has been allocated by the LPA for residential development following mandatory publication and consultation procedures.

The order extends PiP to land registered in part 2 of a brownfield land register subject to some exceptions, provided that land meets the criteria set out in the order. It also allows an LPA to set the date when PiP in relation to a particular land allocation comes into force, which will then expire after five years. The Act allows LPAs to change this at the time of entering the land on the brownfield register.

"Importantly, the regulations include exemptions for certain types of land and set out that EIA development and habitats development are exempt from inclusion on the registers or a grant of PiP," said Lindsay. "This was one of the main areas of uncertainty at the consultation stage and rules out a great deal of development from being granted a PiP."

"Following the consultation responses, there is a mandatory requirement on local authorities to consult in relation to sites on their registers for which they intend to grant PiP. Where authorities enter sites on registers but do not intend to grant PiP there is a discretion as to whether to consult. In addition, there is a mandatory requirement for publicity and statutory consultation at the technical details consent stage, where the statutory consultee requests it at the PiP stage – albeit given that publicity and consultation will have already taken place at the PiP stage, the later requirements appear more light touch at the later stage," she said.

The government intends to publish further guidance to support the introduction of brownfield land registers and PiP by June 2017. This is expected to cover the complementary role that registers are expected to play alongside local plans; optional and mandatory consultation requirements; information requirements; and the detailed practical operation of PiP, according to Lindsay.