In the Government's drive to identify as much brownfield land as possible for housing development it has now published important regulations. These are:

  1. Regulations which make provision in relation to the grant of 'planning permission in principle' (PiP regulations[1]) for development of land which come into force from 15 April 2017.
  2. Regulations (Brownfield regulations[2]) which impose a duty to keep a brownfield land register (Brownfield land register) and come into force a day later on 16 April 2017.

A technical consultation on the implementation of planning changes was undertaken between February and April 2016[3]. In relation to the preparation of Brownfield land registers, the consultation set out the Government's proposals for identifying suitable sites; publicity and consultation; the proposed content of the registers and the Government's intended requirements for publishing and updating the data. We prepared a briefing on the consultation, which you can access here.

The Brownfield regulations set the requirements for the Brownfield land register, prescribe that each local planning authority (LPA) must prepare and maintain a register of previously developed land, which is in their area, and meets the criteria specified in the regulations. The Brownfield land register must be kept in two parts, and the Brownfield regulations require that an LPA must have published a register by 31 December 2017.

The PiP regulations grants PiP for development of land from 15 April 2017, but only for development of land allocated in Part 2 of a Brownfield land register, including land 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.

Entry of land in Part 2 of the Brownfield land register

An LPA must enter land in Part 2 where the land falls within the specified description (it must be within the LPA's area) and meet the specified criteria and the LPA must have decided to allocate the land for residential development after having followed the procedures set out in the Brownfield regulations for publicity, notification and consultation.

In summary, the specified criteria provide that (in relation to each parcel of land), the land is:

  • of an area of at least 0.25 hectares or is capable of supporting at least 5 dwellings
  • suitable for residential development
  • available for residential development, and
  • residential development of the land is achievable.

The Brownfield regulations provide further detail on the specified criteria and in particular, "achievable", "available", and "suitable".

In addition the Brownfield regulations provide for specified land to be exempted, notably any development that would be subject to Environmental Impact Assessment (EIA) under the relevant regulations.

The process by which the LPA may identify land to be included in Part 2

The PiP regulations are made under section 59A of the Town and Country Planning Act 1990. Section 59A provides that a development order may itself grant PiP, in relation to land in England that is allocated for development in a qualifying document (whether or not in existence when the order is made), for development of a 'prescribed description'. 'Prescribed' is defined as meaning prescribed in a development order, i.e. the PiP regulations and the specified criteria set out in these (see above).

'Qualifying document' is defined as meaning a document (as it has effect from time to time), and which is in summary a:

  • Brownfield land register
  • development plan document
  • neighbourhood development plan document
  • neighbourhood development plan.

Section 59A also provides that PiP granted by a development order takes effect:

  • when the qualifying document takes effect, if the land in question is allocated for development in the document at that time
  • otherwise, when the qualifying document is revised so that the land in question is allocated for development.

Section 59A also provides that a development order may provide that, if the LPA so directs, PiP does not take effect until the date specified by the LPA in the direction. This is carried through into Schedule 2 of the Brownfield regulations. Schedule 2 provides that the information to be included in the Brownfield land register (under regulation 15) includes the planning status and if this is "permissioned" and how (e.g. by PiP, or other).

The Explanatory Memorandum (EM) accompanying both sets of regulations states that LPAs will be subject to the duty in section 14A(7) of the Planning and Compulsory Purchase Act 2004 (2004 Act) to have "regard to the development plan, national policy and guidance" when exercising their functions under the Brownfield regulations.

The Brownfield regulations are made under section 14A of the 2014 Act. While s14A provides the enabling power for the regulations it also provides (s14A(7)), that in exercising their functions under the Brownfield regulations, a LPA must have regard to:

  • the development plan
  • national policies and advice
  • any guidance issued by the Secretary of State for the purposes of the regulations.

For the purposes of that section "national policies and advice" is stated to mean "national policies and advice contained in guidance issued by the Secretary of State (as it has effect from time to time)."

Guidance to be published by June 2017

The EM which is published to accompany both sets of regulations clarifies that government will publish guidance to support the introduction of Brownfield land registers and PiP and that it is government's intention to do so by June 2017.

The EM also states that in relation to Brownfield land registers, "the guidance will cover, for example, the complementary role that registers are expected to play alongside local plans, optional and mandatory consultation requirements, information requirements and the government's proposals for assessing progress in getting planning permission in place on suitable brownfield sites."

A note on the 'Pilot Brownfield Register Manual' 

Until the Guidance is published some assistance on the preparation of the Brownfield land register is contained in the 'Pilot Brownfield Register Manual' (Manual).

The Manual was prepared by DCLG to assist LPAs that were participating in the pilot brownfield register project. It provides information on, amongst other matters, the process of compiling a pilot Brownfield land register, and the expectations on pilot authorities.

The Manual provides that as a first stage DCLG required pilot LPAs to identify provisional sites for their pilot register from the existing evidence base. The Manual stated:

"This evidence base will include sites in an up-to date Strategic Housing Land Availability Assessment [(SHLAA)[ or up-to date Local Plan, sites with an extant planning permission for housing and any other relevant windfall sites". It also states that "Sites that in the opinion of the LPA are suitable for housing led development should also be identified as a provisional brownfield site."

The Manual also states that, "We would expect all provisional brownfield sites to meet the definition of "previously developed land" in Annex 21 of the National Planning Policy Framework [(NPPF)]."

"Once the statutory requirement comes into force it is our intention that LPAs will undertake a call for sites, unless a full SHLAA has been recently undertaken. Annual call for sites should be undertaken by all LPAs subsequently reviewing their registers annually. This will ensure that new sites are introduced into the evidence base to keep registers up-to date."

Once LPAs have identified provisional brownfield sites (as described above), the Manual envisaged that LPAs would (as a stage 2) assess the suitability of the provisional sites against criteria set out in the Manual and including: availability, deliverability, 'developability', and capability of supporting five or more dwellings or more than 0.25 hectares. Broadly, these criteria appear now to have made their way into the Brownfield regulations.

The Manual and the EM also contain a suggestion that LPAs will be able to enter sites on Brownfield land registers even where they do not intend to grant permission.

While the Manual was drafted for Pilot LPAs (and presumably would need to be updated in light of published regulations), it provides some helpful insights into how the process of compiling the Brownfield land registers is intended to be carried out in practice. It may be that an updated version may find its way into to Secretary of State's Guidance (see above), when this is published. The Guidance is expected to be published in June 2017.

PiP by application 

As set out above the PiP regulations provide that any land included by the LPA in Part 2 is given PiP. Although note that the Brownfield land register regulations provide that the LPA will specify the 'planning status' of land included on the Brownfield land register. PiP is only one of a number of options which can be specified under 'planning status' (others include planning permission, outline planning permission, reserved matters approval, technical details consent, planning permission granted under Local Development Order (LDO), Mayoral Development Order (MDO), or a Neighbourhood Development Order (NDO), or 'other'.)

The enabling legislation also makes provision for a development order to provide for PiP to be granted on sites following an application made to the LPA. At the time of writing this note a statutory instrument had not been laid to introduce PiP by application. Having queried this with the Department for Communities and Local Government, we were advised that it is the Department's intention to "introduce regulations to introduce PiP by application in the Summer". Therefore, for now, there is therefore no provision for applications to be made for PiP.