This Friday (15 April) is the deadline for responses to the Government's 'Technical Consultation on Planning Changes' (launched on 18 February 2016). The consultation sets out the Government's proposals to put flesh onto the bones of the Housing and Planning Bill, including for performance linked planning application fees, a brownfield land register and a Section 106 dispute resolution mechanism. The consultation paper also considers how the proposals for the grant of "planning permission in principle" will be put into effect. Permission in principle means the grant of automatic planning consents for housing led developments where further technical details will be provided at a later date.
In this post we discuss how the permissions in principle will fit with existing requirements for environmental impact assessments.
The consultation sets out that permission in principle will be granted by local authorities via the allocation of sites (through local plans, neighbourhood plans and the brownfield register) or via a third party application (small sites only). The 'in principle matters' to be determined are to consist of location, permitted uses (housing led with ancillary retail, community, and commercial uses) and the amount of residential development to be provided.
The stated aim of the permission in principle approach is to provide "greater certainty and predictability" by establishing the principle of development upon a particular site prior to any heavy investment having to be made by a developer.
Full planning permission for development will be granted following the submission and approval of technical details. Technical details will be considered against local and national policy and other material considerations. The parameters of the technical details to be submitted will have been described at the permission in principle stage. The expectation set out in the consultation is that "decisions on applications for technical details consent will be made efficiently as they will focus on whether the detail is acceptable, rather than re-appraising the principle of the development". The Government is also considering how the proposals for planning permission in principle will provide a "sufficiently distinct option" from the existing process for outline planning permissions.
There is a lack of clarity on how the permission in principle approach will satisfy the requirements of the Environmental Impact Assessment (EIA) Regulations. The consultation states that permission in principle may only be granted for development falling within the ambit of the regulations where it has been possible to screen the impacts of the proposed development on a site, and where necessary produce an environmental impact assessment.
However, no detail is included of how a full assessment would be possible, satisfying the requirements of the EIA Regulations, based on the limited information which would be required for permission in principle to be granted. Nor is it clear how necessary mitigation measures are to be prescribed, nor how these are to be imposed on any technical details consent.
In practice, we expect that headline details of proposed developments will be worked up alongside the allocation of a site by the local planning authority. This will enable EIA to be carried out at the allocation stage, otherwise there is a risk that EIA Regulations will be breached because a "development consent" will have been granted without complying with the requirement for EIA beforehand. This means that private sector developers will need to work in partnership with local authorities in relation to sites being considered for a permission in principle.
It is also unclear from the consultation document whether a further EIA would be required at the technical details stage. The maximum determination period proposed for technical details consent for major sites is ten weeks, which is six weeks short of the relevant determination period for EIA development, indicating that perhaps an EIA would not be required again. However, given that the local authority will be allocating land to benefit from permission in principle at a very early stage, using a minimum of environmental information, the requirements under the EIA Regulations and relevant caselaw would suggest that a further EIA is likely to be needed at the technical details stage, where new or different information has become available.