The government guidance on permissions in principle for brownfield sites was published on 28 July 2017. We look at the key points for local authorities and developers.

The concept of permission in principle was introduced by the Housing and Planning Act 2016. The detail then followed in the Town and Country Planning (Brownfield Land Register) Regulations 2017 and the Town and Country Planning (Permission in Principle) Order 2017 which came into force in mid-April. This has been followed up by a new section of the Planning Practice Guidance, published on 28 July 2017, which provides a useful overview of the key points.

What are the headlines?

The regulations clearly shift responsibility for the identification and promotion of housing sites from the developer to the local authority. They require local authorities to prepare and maintain registers of previously developed land (brownfield land) over 0.25 hectares that is suitable and available for residential development of five dwellings or more.

The register will form two parts:

  • Part 1 will include all brownfield sites that are suitable for housing.
  • Part 2 will include sites for which permission in principle has been granted, following prescribed publicity, notification and consultation requirements being met.

Local authorities are required to have regard to the development plan, the National Planning Policy Framework (NPPF) and material considerations in establishing whether permission in principle should be granted.

Permissions in principle can only be granted for housing-led development and ancillary uses including commercial, office and community uses. The brownfield land register must state the minimum and maximum number of dwellings and the description and scale of any non-residential development permitted. At this stage it cannot be subject to conditions.

Permission in principle settles the principle of development including its use, location and the quantum of development. However, work cannot commence until a technical details consent is obtained and this requires an application to be submitted to the local authority to enable them to assess the detailed design and ensure mitigation and contributions to infrastructure are secured, via conditions and planning obligations. Community infrastructure levy may also be payable.

An application for technical details consent needs to be made within a period of five years from the date the site is entered in Part 2 of the brownfield land register or other shorter or longer period considered appropriate by the authority. Application determination timescales are five weeks for non-major development, 10 weeks for major development and 16 weeks for EIA development.

Can permission in principle be granted for EIA development?

Importantly, a site may not fall within Part 2 of the brownfield land register if the development consists of the winning and working of minerals, falls within Schedule 1 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“EIA Regulations”), or falls within Schedule 2 of the EIA Regulations and has been screened as EIA development or would be prohibited under Habitats legislation.

If an authority determines at the technical details stage that the proposal should be subject to EIA, the grant of permission in principle remains valid and the relevant requirements of the EIA Regulations must then be met during consideration of the technical details. This is likely to give rise to a number of issues and challenges for local authorities in the determination of technical details.

Is there a right of appeal?

As with the position on EIA, a divergence arises in the two stage process. If a site is not included in Part 2 of the register, there is no right of appeal as there is nothing to prevent a planning application being submitted for the site. However, an applicant does have a right of appeal against the non-determination or refusal of an application for technical details consent or against conditions imposed.

Practical points for local authorities and developers

Local authorities are expected to have compiled their brownfield land registers by 31 December 2017. The regulations and guidance do not mention any sanctions for not having a register in place, so it will be interesting to monitor progress with this towards the end of the year, running into 2018. A number of authorities have already created pilot registers, these tend to focus on council owned sites and other sites which have already been allocated in the local plan.

As the responsibility for ensuring the suitability of land shifts from the developer to the local authority, there is a concern that authorities may not have suitable resources available to carry out detailed assessments. The effect of this could either be that sites are left off the brownfield land register or are included but environmental impacts are only raised at the technical details stage. Although there is no formal procedure to ‘lobby’ authorities, promoters of schemes may find themselves liaising with local authorities prior to registers being compiled to provide supporting material to justify the entry of a site on the register.

As there is no right of appeal against a site not being included in the brownfield land register, developers of more controversial sites are likely to remain reliant on the traditional planning application process.