Permissions in Principle and Brownfield Land

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

Summary and Implications

This week the Town and Country Planning (Permission in Principle) Order 2017 (the "2017 Order") comes into force which will allow "permission in principle" to be granted for housing-led developments on brownfield land. Here we look at the key provisions of the 2017 Order and the effect it may have on developments on brownfield sites.

Background

The Housing and Planning Act 2016 (the "HPA 2016") received Royal Assent on 12 May 2016 and introduced a range of reforms designed to address housing issues.

Section 150 of the HPA 2016 amended the Town and Country Planning Act 1990 (the "TCPA 1990") to enable "permission in principle" to be granted for housing-led developments. This permission in principle will, when combined with an application for technical-details consent, amount to consent for housing schemes on land that is allocated for development in a qualifying document. A qualifying document includes the brownfield register, development plan documents and neighbourhood plans and, in general terms, the permission in principle will take effect on formal allocation of the site for development.

Key features to be aware of are as follows:

• The permission in principle will expire after five years where it is granted by development order and three years when it is granted by the local planning authority.
• The local planning authority has the discretion to grant the permission for a shorter or longer period of time.
• The local planning authority must hold and maintain a register of all permissions in principle for land in their area.

The Order will, from 15 April 2017, grant permission in principle for land located on brownfield sites. Secondary legislation for permission in principle to be granted on land within local and neighbourhood plans is to be created separately.

Permission in Principle and Brownfield Land

Permission in principle is to be granted for development of land allocated in Part 2 of the brownfield land register consisting of:

• Housing development for the provision of a number of dwellings falling within the range specified in the relevant entry in the brownfield land register; and
• Where the relevant entry in the brownfield land register specifies non-housing development of the land, non-housing development of a description falling within the description in that entry.

The permission in principle does not by itself consent the development and planning permission will still be required. However, planning permission may be obtained by an application for technical details consent only. Technical details can include matters such as the design of buildings, development layout and landscaping schemes.

The local planning authority must determine the application for technical details consent in accordance with the permission in principle. Together, the permission in principle and technical details consent amount to a full planning permission for the development of the brownfield land.

Effect

The introduction of permission in principle for brownfield land is designed to increase the number of sites available for housing-led development whilst speeding up the planning application process. Criticisms of the current system focus on the need for a significant amount of information to be produced upfront before there is any certainty that consent for a development can be granted in principle.

In this way, the 2017 Order may benefit developers by providing a degree of certainty earlier on in the application process. In addition, developers need only establish the principle of development once which may save time and costs.

However, critics are concerned that, since the new regime requires more action on the part of local planning authorities, the process may in fact be slower and permissions in principle may have low priority amongst authorities.

The regime is also intended to encourage further development on previously-used land, rather than greenfield sites.

How the new legislation will work in practice remains to be seen. The government intends to publish guidance to support the introduction of brownfield land registers and permission in principle by June 2017. This guidance may give a greater indication of how the system will work and the potential benefits to developers, and we will consider this further in due course.

In the meantime, if you have any queries please do not hesitate to contact us.