After confirming its continued support for the related concepts of permission in principle and statutory brownfield registers as part of an “ambitious programme to bring brownfield land back into use”,1 the government has gone on to introduce the secondary legislation required to implement the new regimes.
The Town and Country Planning (Brownfield Land Register) Regulations 2017 (the Regulations) provide the platform for granting permission in principle. Local Planning Authorities (LPAs) are placed under a duty to prepare, publish and regularly review a register of brownfield land (which equates to previously developed land as defined in the NPPF). Importantly, this must be land which is also “suitable for residential development”. So, what does “suitable for residential development” mean in this context? The Regulations (which are replete with definitions), provide an answer at regulation 4 which identifies two categories. First, there is land which has been allocated in a local development plan document for residential development; has planning permission for residential development or has the benefit of a grant of permission in principle for residential development. The second category requires the LPA to come to a view on the appropriateness of the land for residential development having regard to specified factors which look very much like the material considerations which are relevant to the determination of a planning application. These include any adverse impacts on the natural environment, heritage assets and local amenity. Regard must also be had to “any relevant representations” received (a term which is further defined in the Regulations).
The register (which must be in place by the end of 2017), is in two parts. Part 1 must include brownfield land that meets the criteria set out in regulation 4(1). This means that the land should meet a threshold requirement (i.e. at least 0.25 hectares in area or capable of supporting at least 5 dwellings)2. In addition, it must be “suitable for residential development”, (see discussion above) and must also be “available” for residential development which is also “achievable” – terms which are subject to yet further definition in the Regulations. Whether land is “suitable” “available” and “achievable” when it comes to residential development will be familiar territory for those who have been involved in debates at planning appeals over which sites should or should not count to a LPA’s five-year housing land supply.
Part 2 of the register is of more significance as it includes sites which the Council has gone on to allocate for residential development following a mandatory consultation exercise - the requirements of which are also prescribed in the Regulations. These sites are granted permission in principle though the operation of Article 4 of the Town and Country Planning (Permission in Principle) Order 2017 (the Order). Article 7 of the Order provides that a permission in principle has a shelf life of a 5 years during which a “technical details application” (the equivalent of a reserved matters application) must be determined.
So, does the introduction of these new regimes herald a significant departure from the past with a new, fast-track, streamlined approach to development consents based on zoning? The answer is probably not – in the short term at least. There are significant exceptions to the sites that can find their way on to Part 2 of the register - notably where the development of the site would involve environmental impact assessment (EIA) development pursuant to the European regime. Clearly these rules may be relaxed post Brexit, but any changes will be some way off and the extent of any relaxation (if any) is impossible to predict. Also, whilst their decisions will be susceptible to judicial review in the light of the normal public law considerations, LPAs will still enjoy a relatively wide discretion when making decisions on the candidates for inclusion on Part 2 and will still have to do so in the light of third party representations, which means that a positive outcome is by no means a foregone conclusion.
Article 9 of the Order provides that the Secretary of State must from time to time carry out a review of the operation of the Order and publish a report setting out the conclusions of the review. The first of these is due no later than the fifth anniversary of the introduction of the Order. By this time, it should be apparent whether this new approach has in fact played a significant role in bringing brownfield land back into use and has served to unlock sites for residential development that would not otherwise have been delivered through the planning application process.