Brownfield Land Registers: A Bit Of Progress

I last blogged about the new brownfield land regime back in April 2017. Back then, the deadline of 31 December 2017 had been set for local planning authorities to publish their first registers. We were also waiting for the final set of regulations that would set out the procedure by which, if your land is listed in part 1 of the register, you can apply for “permission in principle” (if your land is in part 2 of the register it is automatic). 
This blog post takes a quick look at some of the registers that have been published to see the approaches that authorities are taking – after all, whilst authorities had the 31 December deadline for publishing their registers, there was no minimum number of sites to be included, whether on part 1 or part 2 and no procedure for appeal or independent scrutiny if a land owner considers that their land has been wrongly overlooked. 
In the longer term, I hope that something will be done about authorities that only pay lip service to the process, although it is difficult to see what, without a more prescriptive system, or other sticks and carrots being applied. DCLG’s planning update newsletter published on 21 December 2017 stated:
“DCLG will assess progress in January, and it will be important that published registers contain up-to- date information on brownfield land suitable for housing. 

In July we published planning guidance, a data standard, and a template , to support local planning authorities in preparing and publishing their registers, and to ensure registers are published in a consistent and open format which can be aggregated by users of the data.”
From a quick google, it seems to me that authorities have met the deadline. However:
– the sites included do not appear to go beyond sites which were already in play by virtue of either having permission, an allocation or having featured in the authority’s strategic housing land availability assessment
– sites have not yet been included in part 2

– whilst the government’s data standard and template have been followed, the supporting information is pretty sparse. 

These are three authorities that I chose to look at, by way of a random selection:
Elmbridge Borough Council’s register only contains sites that already have planning permission. 
Milton Keynes Council has decided not to include any sites on part 2 of its register. Its part 1 sites all come from its SHLAA as well as unimplemented planning permissions. 
The notes to Islington Council’s register set out uncertainties as to the required methodology:
“The Regulations and PPG are not clear about whether the 5 dwelling threshold for inclusion on the BLR refers to net or gross dwellings. Regulation 4 of the Regulations merely requires sites to be included if they have an area of at least 0.25 hectares or is capable of supporting at least 5 dwellings. This suggests the threshold is a gross figure. 

However, Schedule 2 of the Regulations requires sites on the BLR to set out the minimum net number of dwellings which, in the authority’s opinion, the land is capable of supporting. 

This is an important distinction as there are several sites – all extant permissions – which are less than 0.25 hectares, and permit 5 or more dwellings gross but less than 5 dwellings net. Hence the decision to enter these sites onto the BLR hinges on whether we assume the 5 dwelling threshold is net or gross. 

Islington have assumed that the Regulations refer to the gross figure in terms of assessing capability under Regulation 4, although a site’s net figure is used for the ‘MinNetDwellings’ column. The council will monitor changes to guidance and other boroughs BLRs for best practice, and may revert to a net figure in future in terms of assessing sites against the Regulations.”

Islington identifies all of the sites on its register as in unknown ownership:
The BLR identifies all sites as unknown ownership, which reflects the lack of access to up-to-date Land Registry records for these sites. Islington will aim to secure ownership data for sites on future iterations of the BLR.”
These approaches are not untypical and it is underwhelming. DCLG will need to turn the thumbscrews in time for the first annual update of the registers if this process is going to do anything other than round up the usual suspect sites. 
The formatting does at least allow for some useful data gathering, such as this map of London brownfield sites.

Barton Willmore have carried out some interesting analysis as to the numbers of homes identified by the Manchester authorities in their register. 

Of course one of the benefits of finding your land within part 1 of the register is the idea that you will be able to apply for “permission in principle” as a supposedly quick route to planning approval. However this is only relevant if the site is very small, given that the cap is nine dwellings – and given that the minimum size for inclusion on the register is five dwellings this is all pretty niche. Be that as it may, the Town and Country Planning (Permission in Principle) (Amendment) Order 2017 was laid before Parliament on 21 December 2017 and will come into force on 1 June 2018. The order sets out the procedure for applying for PiPs. Lichfields’ 2 January 2018 blog post Take a chance on me: what we know about permission in principle on application is a good summary, also covering the fee rates for applications. 

On reading my April 2017 blog post again, I was surprisingly optimistic about the brownfield land registers. Nine months on, I suppose at least we now have the initial registers in place but surely now we need to see:
– greater engagement between land owners and LPAs so as to begin to use the process to unlock sites which are not already in play.

– consultation in relation to moving appropriate sites onto part 2 so that they secure automatic permission in principle (and without the nine units cap there is in relation to part 1, although they must be below the threshold for EIA).

– a real incentive for development of sites on the register, including supportive policies in the forthcoming revised NPPF. 

Simon Ricketts, 5 January 2018
Personal views, et cetera

Author: simonicity

Partner at boutique planning firm, Town Legal LLP, but this blog represents my personal views only.

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