The new duty on local authorities to draw up statutory brownfield registers of land suitable for housing development came into force this week, as did secondary legislation that will allow some of these sites to be awarded Permission in Principle for development.
The government has married these two new planning regimes together by requiring councils to draw up two-part registers.
Part 1 will constitute a comprehensive register of all brownfield sites identified for housing irrespective of their planning status. Part 2 will comprise only of sites for which councils have granted Permission in Principle (PiP). This requires a process that will involve mandatory consultation, and so will come with the benefit of greater development certainty.
Sites with PiP will still need a ‘technical details application’, broadly equivalent to a reserved matters application, to be approved. A site will be given PiP status for five years.
Local authorities will be expected to have compiled their registers by 31 December 2017.
In outline guidance issued last week, the Government suggests the timescale issued should not be beyond the capacity of planning authorities. Since last year, 73 authorities have been piloting the preparation of registers and have helped to shape the policy.
Bob Pritchard, specialist planning lawyer at Eversheds Sutherland and member of the RIBA Planning Group, explains planning regulations are replete with definitions of what constitutes brownfield land that is also 'suitable for residential development'.
There is land that has been allocated in a local development plan document for residential development, or has planning permission for residential development or has the benefit of PiP 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 that look very much like the material considerations relevant to the determination of a planning application, says Pritchard.
These include any adverse impacts on the natural environment, heritage assets and local amenity. Regard must also be had to 'any relevant representations' received.
Sites must meet a threshold requirement of a minimum size of 0.25ha or be capable of supporting at least five dwellings.
In addition to being 'suitable for residential development', land should be 'available' for residential development which is also 'achievable' – terms that are subject to further definition in the regulations.
‘Whether land is 'suitable', 'available' and 'achievable' when it comes to residential development will be familiar territory to 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,’ says Pritchard.
So, does the introduction of these new regimes herald a significant departure from the past, with a new fast-track, streamlined approach to development consent based on zoning, as the government has portrayed the measures? Pritchard believes the answer is probably not, at least in the short term.
‘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,’ adds Pritchard.
‘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.’
Thanks to Bob Pritchard, Principal Associate, Eversheds Sutherland.
Text by Neal Morris, © RIBA
