The Housing and Planning Bill 2015 proposes to introduce ‘planning permission in principle’ granted either automatically upon the inclusion of proposals in particular planning documents or by an application to the local planning authority in respect of particular sites and uses identified in planning policy. The proposals apply to England only.

Much of the detail of the regime would follow in secondary legislation. The general concepts are though set out in the Bill.

Permission in principle would be followed by a ‘technical details consent’ which together would be the equivalent of a full planning permission. Planning conditions would be imposed at the technical details consent stage.

Permission in principle could derive from two routes: grant by a development order or grant on application to the local planning authority.

Grant of planning permission in principle by development order

The first route is for permission in principle to be granted by a development order in relation to land which is allocated for  development  in  a  qualifying  document. A ‘qualifying document’ 11 would be a ‘plan, register or other document … made, maintained or adopted’ by a local planning authority, of a prescribed description, which ‘indicates that the  land  in  question  is  allocated for development  for the purposes  of  this section’ and which contains ‘prescribed particulars in relation to the land allocated  and  the  kind  of  development  for  which it is allocated’.12 ‘Adopted’ can encompass a local plan, whilst neighbourhood development plans are ‘made’ by the local planning authority.  ‘Maintained’  is  envisaged for registers of land which could be required under a proposed section 14A of the Planning and Compulsory Purchase Act 2004.13

Under proposed section 14A, local planning authorities would be required to prepare, maintain and publish a register of land which is of a prescribed description or which satisfies prescribed criteria.14 Regulations would prescribe when land has to be included and also where local planning authorities have a discretion whether to include it, or indeed any power to exclude land which would otherwise be included.15 In compiling the register, the local planning authority are required to have regard to the development plan and national policies and advice.16

It is envisaged that the registration duty would require the creation of a brownfield register of previously developed land which is suitable for housing development.17  As presently drafted, the register provisions do not include any mechanism for independent examination, appeal or Ministerial intervention.

In addition to the brownfield register, it is anticipated that automatic planning permission in principle would be granted to allocations within particular categories in local plans or neighbourhood plans. The document would have to allocate the land for the purposes of permission in principle,18 so existing allocations will not have that effect.

A number of consequences flow for the preparation of the brownfield register, local plans and neighbourhood development plans.

Consultation and publicity requirements will need to apply to the immediate locality of a proposed allocation as well as across the plan area. At present the local plan and neighbourhood plan processes require area-wide publicity but not notification to individual properties. The owners of allocated sites have no right to be consulted, although they are in practice in plan making to judge the availability of the land. More importantly in practice, plan making does not presently involve neighbour notification or the display of site notices. That would need to be changed.

The automatic grant of planning permission by reason of the status of land in a document means that the document itself is a development  consent  under the Environmental Impact Assessment Directive. It authorises the developer to proceed, as part of a multi- stage consent process.19 Consequently the document must contain sufficient  detail  to  enable  a  decision to be taken as to whether EIA is required and, if so, to carry it out sufficiently for the details approved at the planning permission in principle stage.20 This will involve consideration of the mitigation proposed, even though that will not be secured until the technical details stage. Most local and neighbourhood plans are though presently subject to Strategic Environmental Assessment.

As well as what is proposed, a decision whether to permit a development may require regard to what is lost. Careful consideration is required as to whether the permission in principle will authorise demolition, whether certain existing uses are protected and regard to designated heritage assets, such as listed buildings and conservation areas, and undesignated assets such as locally listed buildings and assets of community value.

Grant of planning permission in principle on application

The second route is for a grant on application to the local planning authority for  permission  in  principle for  development  of   a   prescribed   description.21 Such  applications  will  be  determined  having  regard to the development plan and any other material considerations,22 and so applying the presumption in favour of the development plan.23 Applications would be determined under proposed section 70(1A) of the Town and Country Planning Act 1990: 24

“Where an application is made to a local planning authority for permission in principle –

  1. they may grant permission in principle; or
  2. they may refuse permission in principle.”

Unlike section 70(1) this does not permit the imposition of conditions. These are  to be left to the technical details consent. Applications for permission in principle will be subject to the usual rules on notice being given to landowners, powers to decline to determine repeat applications, call ins and appeals as apply to planning applications.25

The government’s current intention to allow this to be used to approve the creation of fewer than 10 homes.26

Technical details consent

If planning permission in principle is granted, whether automatically or following an application, then a full planning permission is achieved by the approval of a technical details consent. Any application for technical details consent must be within the matters approved by the permission in principle and contain sufficient details to be a full, but not outline, planning application, see proposed section 70(2ZB):

“An application for technical details consent is an application for planning permission that –

  1. relates to land in respect of which permission in principle is in force,
  2. proposes development all of which falls within the terms of the permission in principle, and 
  3. particularises all matters necessary to enable planning permission to be granted without any reservations of the kind referred to in section 92.”

Unless the permission in principle is out of date, the local planning authority should have  to  determine the application in accordance with the permission in principle, see proposed section 70(2ZA):

“The authority  must determine an  application for technical details consent in accordance with the relevant permission in principle.”

A permission would be out of date if it has been in force for longer than a prescribed period and there has been a material change in circumstances since it came into force.27

The requirements that the technical details application accords with the permission in principle and that the authority cannot go back on the principle which has been established when determining it reflect the caselaw on reserved matters and the approval of details under conditions. A technical details application could relate to only part of the site of a permission in principle, although it could be refused if a more comprehensive application was considered necessary or it would prejudice the development of the remainder of the site.

The government intention is that whether permission in principle has been granted automatically or on application, conditions may be imposed in the technical details consent.28 However the Bill does not at present include such provision (there being no equivalent of section 70(1) or 72 for technical details consent). Whilst it might be intended to include this in the development order, the better approach would be to provide for the imposition of conditions on the face of the Act. Such conditions could not derogate from the permission in principle but otherwise would be subject to the normal principles for planning conditions.

This article is an extract from Richard Harwood’s new book ‘Planning Permission’ which is to be published shortly by Bloomsbury  Professional