Category: Brownfield land

The RUBR Hits The Road: Residential Urban Brownfield Regeneration

“Building homes on brownfield land will be turbocharged under a major shake-up to planning rules to boost housebuilding while protecting the Green Belt. “

For a concise summary of today’s DLUHC announcements and all the links, see my Town Legal colleague Susie Herbert’s post.

I have seen some understandable cynicism about the proposed changes – along the lines of “it’s motivated by the politics” (obviously in part yes); and/or “it’s in dribs and drabs, why couldn’t this have been done as part of the December 2023 NPPF changes?” (well yes, although maybe better late than never?); and/or ”none of it will make a difference” (I’ll declare an interest having assisted British Land and Land Sec in a small way last year with their report More Growth, More Homes, More Jobs: how to reform the planning system to unlock urban regeneration – but I would have said this anyway – I think the announced changes could well make a difference – and in fact there are plenty more within that report that are worthy of consideration!).

There is of course already existing policy encouragement (albeit rather general) in paragraph 124 (c) of the NPPF, which states that planning policies and decisions should “give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs.”

The Government proposes to strengthen that message with the following additional wording within paragraph 129 (c):

“local planning authorities should refuse applications which they consider fail to make efficient use of land, taking into account the policies in this Framework, especially where this involves land which is previously developed. In this context, when considering applications for housing, authorities should give significant weight to the benefits of delivering as many homes as possible and take a flexible approach in applying planning policies or guidance relating to daylight and sunlight and  internal layouts of development, where they would otherwise inhibit making the most efficient use of a site (as long as the resulting scheme would provide acceptable living standards).” [new passages underlined]

I do think this does move the dial further with those references to “delivering as many homes as possible” and (particularly in London) the “flexible approach in applying planning policies or guidance relating to …  internal layouts of development”.

The dial will then move into full “tilted balance” paragraph 11 (d) territory for those boroughs in London and those other 19 towns and cities subject to the urban uplift, where their Housing Delivery Test results (to be published in May) indicate that their delivery of housing was below 95% of the housing requirement over the previous 3 years.

For an indication of the potential outturn of those results see Ross Raftery’s excellent Lichfields blog post today, Testing times for England’s big cities – an extended reach for the presumption and other NPPF changes.

This strengthening of the tests is likely to make a difference (even during this consultation period): it will influence the way that planning committees are advised when they come to make decisions; it will focus a broader spread of authorities on the potential consequences of not meeting delivery targets (admittedly not fully within their control, but certainly partly), and it will certainly influence how inspectors and the Secretary of State approach appeals and call-ins.

In London there is also much good analysis in the excellent report prepared by Christopher Katkowski KC and his panel. From the executive summary:

“6 The consequences of housing under-delivery have significant economic, societal and personal impacts, not least on those who face no alternative option but homelessness (living in temporary accommodation), or who are forced into poor-quality rental accommodation.

7 Public and private sector stakeholders are clear in their view that the London Plan is not the sole source of the problem: wider macro-economic conditions; fire safety; infrastructure constraints; statutory consultees; viability difficulties; and planning resourcing pressures have all contributed.

8 However, there is persuasive evidence that the combined effect of the multiplicity of policies in the London Plan now works to frustrate rather than facilitate the delivery of new homes, not least in creating very real challenges to the viability of schemes. We heard that policy goals in the Plan are being incorrectly applied mechanistically as absolute requirements: as ‘musts’ rather than ‘shoulds’. There is so much to navigate and negotiate that wending one’s way through the application process is expensive and time-consuming, particularly for SMEs who deliver the majority of London’s homes.

9 This position is exacerbated by the change in context since the London Plan was formulated. The London Plan’s ‘Good Growth’ policies were advanced on the basis of public and private sector investment assumptions that were described in 2019 as being “ambitious but realistic” by the London Plan Inspectors. But planning and housing delivery indicators suggest this strategy has not been sufficiently resilient to the subsequent change in circumstances. Housing schemes (and decision makers on applications) have struggled to reconcile the multiple policy exhortations, which create uncertainty and delay in the preparation, submission and determination of planning applications.”

Many will also welcome the Secretary of State including within his consultation paper the question as to whether the threshold for referral of applications to the Mayor should be raised:

“As part of the large scale development theme, a threshold for large scale residential development was first set in the previous regulations in 2000 as development providing more than 500 houses, flats, or houses and flats or residential development on more than 10 hectares. In 2008, this threshold was reduced to 150 houses, flats or houses and flats.

Through engagement, the government is aware that in some instances this threshold is considered to be too low, requiring what may amount to duplicative interactions by developers with the relevant London Borough and with the Greater London Authority which is not always considered proportionate to the nature of the development in question.

The government wants to make sure that this threshold is set at the right level, in order that it adds value to the process of determining applications for potential strategic importance (especially for residential development), and does not inadvertently slow down or disincentivise developments that could be appropriately determined by the London Borough.”

In conclusion, will building homes on brownfield land be “turbocharged under a major shake-up to planning rules”? It’s more a ratcheting-up of policy than a “major shake-up to planning rules” (thankfully). And whilst I refuse to engage with that ridiculous, very Boris Johnson, word “turbocharged” and whilst this is a very late initiative for a Government that is fast running out of road, let’s hope there is at least some acceleration as a result.

Simon Ricketts, 13 February 2024

Personal views, et cetera

What To Do?

When, as it will, this current terrible phase of the Covid-19 pandemic passes, what needs to be done to ensure that we catch up on efforts to provide housing and resume economic activity?

The main purpose of this blog post, into which a number of my partners at Town have contributed their thoughts (although all errors and omissions are mine), is to try to answer that question.

But first, what is presently being done to make sure that our system continues to operate, efficiently but fairly?

It is encouraging to see the great efforts being made by many local planning authorities to keep going with decision making, by way of innovative approaches to decision making and greater use of officers’ delegated powers, and the commitment of so many officers and members, continuing to work from home against a background of other domestic pressures and technological constraints. It will be excellent to see proactive moves by authorities to amend their constitutions, with necessary safeguards such as chief executive oversight, where there are specific rules against certain categories of application being dealt with other than by committee. Some of the options are set out in a piece by barrister Jonathan Easton, Local authority decision making in a time of crises, 19 March 2020. The Government has also confirmed that it “will consider bringing forward legislation to allow council committee meetings to be held virtually for a temporary period” (Robert Jenrick reaffirms support for councils in their coronavirus response, MHCLG press release, 16 March 2020); the Association of Democratic Services Officers and Lawyers in Local Government wrote jointly to the Secretary of State on 17 March 2020 setting out the full extent of changes that would be needed for local government decision making to function properly during this period of social distancing. The quicker the better please!

It is frustrating after the resounding success of the Rosewell reforms to see planning appeal inquiries, as well as informal hearings and local plan examinations, postponed as a result of the virus (see Coronavirus (COVID-19) – Planning Inspectorate guidance – updated 18 March 2020) – but of course the reason is plain. So far the postponements only relate to those scheduled up to 23 April but surely this will roll forward in due course. The Bar has made much of discussions with the Planning Inspectorate for greater use of video conferencing – which is the stock in trade for all of us at the moment – microsoft teams, zoom, you name it, we’re all on it! But keeping the professionals communicating with the inspector in a structured way is one thing – what about the “public” element of a public inquiry? [subsequent addition to blog post: see this subsequent excellent Landmark Chambers paper Fairness and public participation in video or telephone hearings for planning appeals during the COVID-19 crisis]. For all but the most controversial or complex appeals (so perhaps not those which have been recovered by the Secretary of State), should appellants be given the option of having their appeals determined by written representations, even if until now the appeal has been identified as appropriate for a hearing or inquiry?

The courts have also been quick to consider how to respond. An update from the Lord Chief Justice on 17 March 2020 spoke of the “urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible”, the “considerable flexibility” provided for in the Civil Procedure Rules and the courts’ “immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters”. Indeed, colleagues had an early taste of this on 19 March, with Deputy High Court Judge Alice Robinson handing down judgment from open court in a section 288 challenge (following a hearing earlier in the week), with the advocates and parties at the other end of the telephone. Clause 53 and Schedule 24 of the Coronavirus Bill (introduced into the House of Commons on 19 March 2020) proposes greater flexibility in relation to the use of live video and audio links, with appropriate protections, for a temporary period of two years (whoch period may be shortened or extended). I also recommend this excellent piece, Tim Buley QC shares his thoughts on the Public law courts during the coronavirus crisis, which pulls together much of what is currently being done, or contemplated.

Some ideas, looking ahead

Just a week or so ago seems like an age away. The Secretary of State set out a range of proposals for further reform of the planning system in his Planning for the future document (12 March 2020). He announced:

“In the Spring, we will publish a bold and ambitious Planning White Paper. It will propose measures to accelerate planning. It will maximise the potential of new technologies to modernise the system. It will make it easier for communities to understand the planning system and play a role in decisions that affect them. Together, the measures it puts forward will set out a pathway to a new English planning system which is fit for the future”.

That talk of a “new English planning system” seemed to herald some of the thinking from the Policy Exchange’s paper Rethinking the Planning System for the 21st Century (27 January 2020) and, after all, its co-author Jack Airey is now a 10 Downing Street advisor. I wrote a critique of the paper in the Estates Gazette (Let’s rethink the rethink, 5 March 2020) but perhaps I was being a little premature. Because maybe, once all this subsides, it is time to look at for instance:

⁃ the potential for more of a zoning-style approach, which could begin to be introduced fairly simply by placing a proper duty on authorities to prepare brownfield land registers (as well as making it mandatory for local authorities to import into their registers all sites identified by the Government in its promised national brownfield sites map) and then increasing the scope for use of the ‘permission in principle’ procedure e.g. by allowing it to be used for more than just housing-led development and allowing permission in principle to be established through site allocations in a local plan.

⁃ greater use, this time with better safeguards against abuse, of permitted development rights. After all, setting aside the problems caused by that lack of appropriate safeguards, since the permitted development right to convert offices to residential was initially introduced for a temporary three year period from May 2013 (following an initial announcement in the March 2011 budget), many thousands of new homes have been created at much greater speed than traditional planning application routes would have achieved. Desperate times call for desperate measures. Planning For The Future announces that the Government will introduce “new permitted development rights for building upwards on existing buildings by summer 2020, including to extend residential blocks by up to two storeys and to deliver new and bigger homes. We will also consult on the detail of a new permitted development right to allow vacant commercial buildings, industrial buildings and residential blocks to be demolished and replaced with well-designed new residential units which meet natural light standards.” Devil’s question: if we are to have permitted development rights to demolish and rebuild, why not go further and have permitted rights, with equivalent safeguards, to carry out residential development on already cleared brownfield land (as an alternative to the enhanced brownfield land register/permission in principle proposal above)?

Surely, all these ideas will need to be considered, against the backdrop of months of lost housing delivery and a severe knock to economic confidence.

But I would suggest that, ahead of that promised White Paper, which will surely now slip considerably, there are a number of shorter-term measures to make adjustments in order to make up for the time that has been lost as a result of this crisis. In considering these, I recognise the inevitable tension between on the one hand measures that seek to “put on hold” aspects of our system, particularly time limits, and on the other hand measures to keep the system moving.

We need to learn from recent history. In the wake of the global financial crisis, on 1 October 2009 the Government introduced a temporary measure “to make it easier for developers and local planning authorities to keep planning permissions alive for longer during the economic downturn so that they can more quickly be implemented when economic conditions improve.” Guidance as to the operation of the provisions was set out in Greater flexibility for planning permissions (23 November 2009, amended 1 October 2010 and eventually withdrawn 7 March 2014). (The same document gave guidance as to the operation of the helpful section 96A non-material amendments procedure, introduced at the same time.)

We urgently need an equivalent measure reintroduced or, perhaps more simply, an automatic six months’ extension to all planning permission time limit conditions. After all there is already a year’s automatic extension under section 91 (3A) of the Town and Country Planning Act 1990 where a planning permission is subject to judicial review proceedings. The thinking should extend to other fixed deadlines, for instance in relation to the implementation of compulsory purchase orders and NSIPs.

There are various section 106 obligations which provide for ongoing financial contributions or measures with significant ongoing costs, not linked to progress with stages of development. The Government should surely provide firm guidance to authorities that they must readily agree to the renegotiation of such provisions to take into account the current standstill period if the evidence is, for any specific development, that this is necessary and justified.

In London, there is a particular issue with the early stage viability review mechanism required by the Mayor. The review is triggered if “substantial implementation” (usually development above ground floor level) has not happened within two years of planning permission being issued. Surely we should be avoiding the unnecessary bureaucracy inherent in that process where we can and for most major schemes the 24 months’ deadline is challenging even with a fully deployed design and construction team. Again, boroughs and the Mayor should surely be urged to agree to vary such arrangements so as to allow for an appropriate extension, whether it turns out to be three months, six months, or longer. Flexibility is also urgently needed with agreements that are currently being negotiated and we have been considering various potential drafting options so as to secure that outcome.

Publicity and consultation arrangements for planning applications need to be adapted to fit this world of social distancing and self-isolation: much of this can occur anyway through innovative use social media and other online consultation tools but there should be a temporary lifting of legislative requirements which will currently serve little purpose and may prove difficult to fulfil, such as the deposit of physical copies of Environmental Statements in the community (under Regulation 23 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017) and the erection of site notices under Article 15 of the Development Management Procedure Order.

Any such proposal would need underwriting from the Government but, as part of any planned economic bounce-back, should there be a year’s window within which schemes can commence free from CIL or with a significant deferment of payments (subject to clawback unless the chargeable development is completed within a specified number of years)? Should the three years period for the “in use” exemption be extended (surely the answer is yes)?

Given the disruption and in some cases the reduction in the capability of local authorities to determine planning applications and in light of the current postponement of hearings and inquiries by PINS there must also be a case for easing the burden on the current system and deferring costs for applicants and would-be appellants by introducing a temporary extension of the statutory period for determination of planning applications and the time limit for appealing against refusal or deemed refusal of planning permission under Articles 34 and 37 of the Development Management Procedure Order.

There will surely need to be adjustments to the operation of the housing delivery test so as not to unfairly penalise authorities facing, for no fault of their own, a slow down in housing starts.

Some have called for the Government to suspend litigation deadlines and limitation periods for the duration of the crisis. It is difficult to see how an across the board standstill would not cause substantial injustices, but should the usual judicial review and statutory challenge periods be extended in relation to decisions taken after a specified date, or perhaps for a temporary period to extend the deadline to three months?

Finally, taking into account the consequences of its social distancing measures, the Government has already announced on 17 March 2020 that permitted development rights will be extended for a period of 12 months to allow the temporary change of use of pubs, bars and restaurants to hot-food take aways; one can readily see that further temporary extensions of permitted development rights might be necessary – e.g. change of use of offices, industrial buildings or warehouses to use for the sale of food and other convenience goods and change of use of hotels and hostels to hospitals or healthcare centres. Planning law will need to be nimble.

It’s times like these we learn to live again.

Simon Ricketts, 21 March 2020

Personal views, et cetera

With thanks to my partners and colleagues at Town. If any of these ideas chime with other organisations’ thoughts, please speak to any of us.

Permitted Development: Painting By Numbers Versus Painting The Sistine Chapel?

Time now to look at some of the proposals to extend permitted development rights and to amend the Use Classes Order that are set out in the Planning Reform: Supporting the high street and increasing the delivery of new homes consultation paper published alongside the Autumn budget on 29 October 2018, and strongly criticised in Nick Raynsford’s final review of planning in England (November 2018):

“The government’s announcement of its intention to extend even further this permissive ‘shadow’ planning process appears to reflect its model for the future direction of the system; and this has real implications for people and for the nature of both planning and planners. This reflects the tension recorded in evidence presented to the Review as to whether planning is a form of land licensing, which implies one set of skills and outcomes, or the much more complex and creative practice of shaping places with people to achieve sustainable development. The former task is like painting by numbers; the latter is like painting the Sistine Chapel. The difference in outcomes for people is equally stark.”

I’m not sure that sort of language (describing traditional planning applications as equivalent to painting the Sistine Chapel, a spectacularly inapt comparison, or indeed TCPA interim chief executive Hugh Ellis’ language in the accompanying press release: “‘Permitted development is toxic and leads to a type of inequality not seen in the Britain for over a century.“) is helpful to the debate.

It seems to me that the two key issues which need to be addressed in relation to permitted development rights that enable additional residential development (whether by way of conversion or construction) are the need for some control at a national or local level over room sizes and the need to provide a proportion of affordable housing whether on site or by way of financial contribution. Aside from those obvious issues (not addressed in the latest consultation paper), what is wrong with the Government looking to streamline development management processes where appropriate? Surely the question is where is the appropriate dividing line. Surely deemed planning permission should be for types of development where, given the public benefit in seeking to encourage them, the local planning authority should not need to question the principle of what is proposed up to a defined scale at a particular location (with more general powers to restrict rights available by way of Article 4 Direction) and where wider issues do not arise that cannot be resolved within a 56 day period for prior approval of specified aspects which are, as far as possible, not open to differing subjective views? Don’t we need to define some sort of principle along these lines before then considering different common types of development?

“Allow greater change of use to support high streets to adapt and diversify”

The Government proposes that uses in classes A1 (shops), A2 (financial and professional services), and A5 (hot food takeaways) (as well as uses as betting shops, pay day loan shops and laundrettes) should be allowed to change to “office use (B1)” (do they mean “office use” or do they mean B1 which also encompasses light industrial and R&D?). Hot food takeaways will be allowed to change to residential use (C1) as is already the case with the other uses referred to. There would be the requirement for prior approval, as with existing change of use permitted development rights.

Alongside this, the current “pop up” temporary permitted development rights to change the use from shops (A1) financial and professional services (A2), restaurants and cafes (A3), hot food takeaways (A5), offices (B1), non-residential institutions (D1), assembly and leisure uses (D2), betting shops and pay day loan shops to change to shops (A1) financial and professional services (A2), restaurants and cafes (A3) or offices (B1) will be extended from two years to three years. The temporary permitted development rights are proposed now to extend to changes to certain community uses, namely as a public library, exhibition hall, museum, clinic or health centre.

All of these proposals are put forward in the context of “supporting the high street” but no geographical limitation to the proposed changes is indicated that would prevent their application to any building in the relevant use, wherever it is located – shades of the original proposal in relation to the office to residential permitted development right, which was couched in terms of underused and empty office premises, when of course the right turned out not to have any such limitation. There is no indication of any floorspace cap. Might a department store, or supermarket, turn into an office? Nor indeed any cap on the proportion of any shopping area that might be converted to offices.

The document goes on to explore whether changes could also be made to the Use Classes Order, namely to:

⁃“simplify the A1 shops use class to remove the current named uses and allow for a broader definition of uses for the sale, display or service to visiting members of the public.”

⁃ consider whether there is “scope for a new use class that provides for a mix of uses within the A1, A2 and A3 uses beyond that which is considered to be ancillary, which would support the diversification of high street businesses. This would replace the existing A1, A2 and A3 and result in a single use class to cover shops, financial and professional services, restaurants and cafes. This would mean that movement between these uses was no longer development and not a matter for the planning system to consider. It would bring greater flexibility but reduce the ability of communities and local planning authorities to distinguish between shops and restaurant uses“.

I agree that these parts of the Use Classes Order potentially need reform (within boundaries – is it really workable for there to be no distinction at all between A1 and A3?) but can’t this be as part of broader reform of the Order? The B, C and D classes all give rise to equivalent issues in that the old distinctions between uses have become increasingly difficult to apply.

“A new permitted development right to support housing delivery by extending buildings upwards to create additional homes”

This idea has been around since February 2016 without civil servants arriving at draft legislation, which is surely going to be the practical test.

Looking back, I covered this proposal most recently on 13 October 2018 in my blog post The Up Right, before that in my 17 March 2017 blog post Permitted Development: À La Recherche Du Temps Perdu and before that in my 15 June 2016 blog post Permitted Development: What Next? However, this latest version of the proposals is certainly the most far-reaching.

The permitted development right would allow additional storeys to be built above buildings in a wide range of uses, including residential, retail and offices. The Government indicates:

“We want to explore whether there may also be other buildings whose use is compatible with the introduction of new homes. Given they are usually located in residential areas or high streets, would premises such as health centres and buildings used for community and leisure purposes be suitable for inclusion in the permitted development right? Out of town retail parks with a mix of shopping and leisure uses may also be suitable for upward extensions to provide additional homes.”

The consultation paper asks for “examples of how this permitted development right might be used in practice, and particularly of how the use of local design codes could help to encourage take up of the proposed right and improve the design quality and acceptability of upward extensions.”

It’s sounding complicated already. Then add the question of how far upwards the permitted development right could allow development to go. The consultation paper offers two alternatives, both of which could lead to significant factual disputes:

⁃ “A permitted development right could apply to the airspace above premises in a terrace of two or more joined properties where there is at least one higher building in the terrace. The roof of the premises extending upward would be no higher than the main roofline of the highest building in the existing terrace.”

⁃ “An alternative approach would be to permit upward extensions more widely to a height no higher than the prevailing roof height in the locality. While this may extend the proposed right to a greater number of properties, it would not be possible to define prevailing roofline in regulations. Therefore it would be a matter to be considered by the local authority as part of the prior approval. In doing so, the local authority would be able to define what it considered to be the prevailing roofline taking account of the local building types and heights and the extent of the area over which it should be determined.”

To add to the complications:

“Where premises are not on level ground the impact of adding additional storeys can be significantly greater on the amenity of neighbouring premises, for example from overlooking and overshadowing and on the character of the area. We would welcome views on how best to take account of the topography of specific areas.”

The consultation paper proposes that there should be a maximum limit of five storeys from ground level for a building once extended (so the extension could be up to four storeys!). But there would be an even broader permitted development right for purpose built, free standing blocks of flats of over five storeys. “The government would also like a permitted development right to apply to such buildings, and is interested in views, including whether there should be a limit on the number of additional storeys that could be added, for example 5”

The permitted development right would allow for the physical works required to construct or install additional storeys on a building. It could also, for instance, allow for “works within the curtilage where it is necessary for access to the additional new homes“.

The prior approval requirements would include appearance, ie “considering whether the proposed development is of good design, adds to the overall quality of the area over its lifetime, is visually attractive as a result of good architecture, responds to the local character and history of the area and maintains a strong sense of place, as set out in paragraph 127 of the National Planning Policy Framework. We expect prior approval on design to be granted where the design is in keeping with the existing design of the building.

Prior approval would also consider the impact of the development on the amenity of neighbouring premises, for example, from obscuring existing windows, reducing access to light or resulting in unacceptable impact on neighbours’ privacy from overlooking. It would also consider measures to mitigate these impacts, and enable the neighbours, including owners and occupiers of premises impacted, to comment on the proposal.”

This is asking a lot of the 56 day prior approval process – sounds like a job for a traditional planning application to me.

Finally, yet another extension of the previous proposals: “We are seeking views on whether the proposed right to build upwards to create new homes should additionally allow householders to extend their own homes.”

This all sounds like it’s on a collision course with what the Government has set in train with the establishment of the ‘Building Better, Building Beautiful‘ Commission.

“The permitted development right to install public call boxes and associated advertisement consent”

I may come back in a later blog post to the Government’s proposal to remove permitted development rights for the installation of public call boxes. Since earlier blog posts on the subject, I’m now off-side from commenting in detail due to acting for an electronic communications code operator, but I would briefly note that the need for additional apparatus is about enabling electronic communications both present (3G, 4G and wifi) and future (5G) rather than just being about the old phone box concept and in that respect the terminology in Part 16 and the references in the Control of Advertisements Regulations probably do need updating without throwing the baby out with the bathwater.

“Supporting housing delivery by allowing for the demolition of commercial buildings and redevelopment as residential”

Well this proposal dates back to October 2015! As with the upwards extensions proposal, is it simply too difficult to draft in legislative form? The wording in the consultation paper is certainly tentative:

⁃ “It may be that a right focused on smaller sites may be more practical...

⁃ Despite the Government having set its face against affordable housing requirements in relation to the office to residential permitted development right, with this right it is said that the Government “would be interested in views on how developer contributions expected towards affordable housing and other infrastructure could be secured.”

⁃ “We would welcome views as to the design of a right which could operate effectively to bring sites forward for redevelopment. The responses to these questions will inform further thinking and a more detailed consultation would follow.”

To be provocative, if additional storeys of residential development are to have deemed permission, and if new residential developments are to have deemed permission if they replace commercial buildings, what is the logic for not granting deemed permission for residential development on brownfield land more generally – what is inherently more complex or controversial arising from that than from the development that could come forward under these new rights? Why the prior complications with brownfield land, but not with these other rights, of land having to be placed by a local planning authority on a register before there is permission in principle?

The deadline for consultation responses is 14 January 2019.

Simon Ricketts, 8 December 2018

Personal views, et cetera

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

Great Expectations: Pip & The Brownfield Land Registers

“We changed again, and yet again, and it was now too late and too far to go back, and I went on“. (Charles Dickens, Great Expectations)
Permissions in principle will change our planning system significantly, mark my words. In my 11.6.16 blog post  I posed a series of questions arising from the legislative skeleton that is sections 150 and 151 of the Housing and Planning Act 2016. 
Victorian part-work style, we now have had the Housing and Planning Act 2016 (Permission in Principle etc) (Miscellaneous Amendments) (England) Regulations 2017  (made 6 March 2017, in force 27 March 2017), the Town and Country Planning (Brownfield Land Register) Regulations 2017  (made 20 March 2017, in force 16 April 2017) and the Town and Country Planning (Permission in Principle) Order 2017 (made 20 March 2017, 15 April 2017). The statutory instruments don’t yet give effect to all of what sections 150 and 151 enable, but we now have some answers. 
This blog post is not a full summary of how the regime will operate. There are various good summaries but I particularly recommend the Lichfields 27 March 2017 ‘essential guide‘.
A few headlines from the new regime:
1. Local planning authorities will be under a statutory duty to publish their brownfield land registers by 31 December 2017 and then maintain them, reviewing the entries at least annually. 
2. The registers will be in two parts:
– Part 1: previously developed land with an area of at least 0.25 hectares that is suitable and available for residential development and where residential development is achievable (all defined terms)
– Part 2: land in Part 1 where the local planning authority has exercised its discretion to enter the land in Part 2 and has decided to allocate the land for residential development having followed defined publicity, notification and consultation procedures. 

3. The information that must be recorded for each entry is specified and includes

– “the minimum and maximum net number of dwellings, given as a range, which in the authority’s opinion, the land is capable of supporting”

– “where the development includes non-housing development, the scale of any such development and the use to which it is to be put“. 

4. Part 2 will not include sites where the development would require environmental impact assessment. So, if the proposed development falls within Schedule 2 column 1 of the 2011 EIA regulations (for most purposes, more than 150 dwellings or on more than 5 hectares), a negative screening opinion or direction must first be obtained (but remember, indicative screening thresholds as to when significant environmental effects are likely to arise allow for the possibility of projects much larger than 150 dwellings). 

5. There are no statutory rights of appeal if the local planning authority refuses to include land on the register (ECHR article 6 compliant?). Judicial review would, as always with any decision of a public body, be available but the decision to include land on Part 2 is at the local planning authority’s discretion so that would not be easy.  

6. Once land is on Part 2 it has automatic “permission in principle” for five years. In order to be able to carry out the development, application for technical details consent is required, particularising “all matters necessary to enable planning permission to be granted”. The statutory determination period for technical details consent is ten weeks for major development and otherwise five weeks, so deliberately shorter than the equivalent periods in relation to “traditional” non-EIA planning applications (thirteen and eight weeks respectively). A section 106 agreement may be required if the usual tests are met. 

7. There is no defined limit on the extent of non-housing development that can benefit from the procedure, alongside residential development. 

8. The procedure applies to conversion and extension of existing buildings as well as development. 

For a wider overview of where this mechanism is heading, there are also useful references in DCLG Planning Update Newsletter March 2017, from which it is clear that further regulations will follow to (1) allow applications for permission in principle to be made for minor development (ie basically less than ten homes) for sites on part 1 of a brownfield land register and to (2) allow automatic permission in principle to stem from allocation in defined categories of statutory development plans rather than just from designation on a brownfield land register. Guidance is also in the offing (dovetailed with the revised NPPF? We can but hope). 
We also await the Government’s response to its February 2016 technical consultation on implementation of planning changes  chapter 2 (permission in principle) and chapter 3 (brownfield register). It was originally promised to be published alongside the regulations. In the meantime, a number of passages in the consultation document are useful in putting flesh on the bones:

“The result of a grant of permission in principle is that the acceptability of the ‘prescribed particulars’ cannot be re-opened when an application for technical details consent is considered by the local planning authority. Local planning authorities will not have the opportunity to impose any conditions when they grant permission in principle. It will therefore be important for the development granted in principle to be described in sufficient detail, to ensure that the parameters within which subsequent application for technical details consent must come forward is absolutely clear.”

“We expect that the parameters of the technical details that need to be agreed, such as essential infrastructure provision, will have been described at the permission in principle stage and will vary from site to site”

“We are proposing that local planning authorities should use existing evidence within an up to date Strategic Housing Land Availability Assessment as the starting point for identifying suitable sites for local brownfield registers. To support this, we will encourage authorities to consider whether their Assessments are up to date and, if not, to undertake prompt reviews. 


While sites contained within the Strategic Housing Land Availability Assessment are a useful starting point, we will encourage local authorities to ensure they have considered any other relevant sources if these are not included in their Assessments. This could include sites with extant planning permission and sites known to the authority that have not previously been considered (for example public sector land). 


We will also expect authorities to use the existing call for sites process to ask members of the public and other interested parties to volunteer potentially suitable sites for inclusion in their registers. We propose that this would be a short targeted exercise aimed at as wide an audience as is practicable. That will enable windfall sites to be put forward by developers and others for consideration by the authority. 

Authorities that have recently undertaken a full Strategic Housing Land Availability Assessment may not consider this to be necessary when initially compiling a register. However, in areas without up to date evidence and for all authorities completing subsequent annual reviews of their register, the process of volunteering potentially suitable sites will play an important role in refreshing the evidence base and help ensure all suitable sites, including windfall sites, are included.”

“We intend to introduce measures that will apply where additional action is needed to ensure that sufficient progress is being made. These measures could include a policy based incentive which would mean that local planning authorities that had failed to make sufficient progress against the brownfield objective would be unable to claim the existence of an up-to-date five year housing land supply when considering applications for brownfield development, and therefore the presumption in favour of sustainable development would apply.

“We propose that the measures we adopt would take effect fully from 2020, and would apply to any local planning authority that had not met the 90% commitment by that date. However, in light of the need for local planning authorities to make continuous progress towards the 90% commitment, we are also interested in views on any intermediate objectives and actions that might apply. “

Be in no doubt, eventually we will have a mechanism that:

– imposes hard statutory deadlines on authorities to publish and regularly update their registers
– whilst light on statutory recourses for developers whose land is not included, will be focused on by Government – woe betide authorities that do not play ball

– will in many cases provide a quicker route to development than the familiar allocation, outline permission, reserved matters approach

– will be potentially relevant for establishing the development credentials of a site even if in due course a traditional planning application is intended

If you have residential development or conversion in mind, the first step is to seek to ensure that your property is on Part 1 of the first round of brownfield land registers, to be published by 31 December 2017. Within the 73 authority pilot areas  this process is well underway. Although care is needed to secure reference to an appropriate scale of development, that’s a pretty immediate way to secure acceptance that your site is suitable for residential development!

Simon Ricketts 1.4.17
Personal views, et cetera

From The White Paper Mountain, What Do We See?

After so long we have reached the top of the mountain: the white paper and accompanying documents have all been published today, 7 February 2017. However, now we see a series of further peaks on the horizon. 
A good way into the white paper itself, Fixing Our Broken Housing Market, is to start at the back end. From page 72 you have the detailed proposals listed, including a series of proposed changes to the NPPF and other policies which are now the subject of a consultation process from today until 2 May 2017. The consultation focuses on a series of 38 questions but some of the questions are potentially very wide-ranging. Further consultation is proposed on various matters, including 
– housing requirements of older people and the disabled

– Increasing local authorities’ flexibility to dispose of land at less than best consideration and related powers

– Potentially increasing fees for planning appeals (up to a maximum of £2,000 for the largest schemes, recoverable if the appeal is allowed)

– Changes to section 106 processes (with further consideration being given to dispute resolution “in the context of longer term reform”)

– Requiring housebuilders to provide aggregate information on build-out rates and, for large-scale sites, as to the relevance of the applicant’s track record of delivering similar schemes

– Encouragement of use of CPO powers to support the build out of stalled sites. 

There is a supplementary consultation paper on planning and affordable housing for build to rent  containing a further 26 questions, with a consultation deadline of 1 May 2017.
There are responses to previous consultation papers and reports:
– Summary of responses to the technical consultation on implementation of planning changes, consultation on upward extensions and Rural Planning Review Call for Evidence  (including a u-turn on the previous idea of an upwards extensions permitted development right in London, now to be addressed by policy). 
– Government response to the Communities and Local Government Select Committee inquiry into the report of the Local Plans Expert Group 
There is plenty to get to grips with, for example:
– the housing delivery test and new methodology for assessing objectively assessed need

– an understandable focus on whether the applicant will proceed to build out any permission and at what rate, although with a worrying reduction of the default time limit for permissions from three to two years

– Homes and Communities Agency to become “Homes England”. 

It is also reassuring to see the Government applying real focus to build to rent, reducing its emphasis on starter homes – and also reducing its reliance on permitted development rights. 

However, it is surprising how much still remains unresolved. We will apparently have a revised NPPF “later this year” but for much else the start date looks to be April 2018, for example a widened affordable housing definition including watered-down starter homes proposals (no longer a statutory requirement and with reference to a policy target of a minimum of 10% “affordable housing ownership units” rather than the requirement of 20% starter homes previously proposed) and a new methodology for assessing five year housing land supply. 

Liz Peace’s CIL review team’s review of CIL: “A new approach to developer contributions”  (October 2016 but only now published) remains untackled. The Government’s response will be announced at the time of the Autumn Budget 2017. 

Decision-makers will need to grapple very quickly with the question as to the weight they should give to the white paper as a material consideration, given the Government’s clear policy direction now on a range of issues. 


Simon Ricketts, 7.2.17
Personal views, et cetera

7 Questions About Permission In Principle

Despite its 217 sections and 20 schedules, the Housing and Planning Act 2016 is in places the merest of sketches – nowhere more so than the illusive idea of “permission in principle” in sections 150 and 151. Here are just some of the things we don’t know:

1. What does “housing-led development” mean?

2. What types of land will be able to be included in the new register envisaged, promised by the Act’s explanatory notes to be a register of brownfield land suitable for housing, but without any such constraint in the Act itself?

3. What procedures will govern the process for selecting land for the register, allowing both proponents and opponents a fair hearing? The Act simply refers to “consultation and other procedures”. In which ways will the procedure be any speedier than any development plan process whilst complying with the European Convention on Human Rights and SEA Directive?

4. Categories of land on the register, or designated in other plans, will have automatic permission in principle for development by way of a general development order but what will be the categories and in relation to what categories of land will specific applications for permission in principle be needed? The explanatory notes suggesting that applications will be limited to minor development (ie fewer than ten dwellings) but presumably the general development order will allow for much larger development to have automatic permission in principle (with EIA, where necessary, being carried out at some undetermined stage in the process?)?

5. How detailed will be the development parameters set out in the permission in principle, given that LPAs will only be to take into account limited criteria in determining subsequent applications for technical details consent? The explanatory notes suggest that “the parameters that can be granted permission in principle are limited to location, the uses (which must be housing-led) and the amount of development”. Will that be enough to give developers something bankable in terms of predictable value/cost? The explanatory notes suggest that permission in principle cannot be subject to conditions, so how will the parameters be documented in a way which sufficiently precise?

6. In practice, will LPAs require land owners and developers to make all the running as at present, justifying that development would be acceptable with necessary supporting information and technical work, or will land owners be able to sit back, let the LPA take the local flak and wait for permission in principle to pop out of the sausage machine in place of getting a developer on board to secure planning permission? Will land owners accordingly retain more land value gain?

7. Are matters that go directly to value and viability, such as social and physical infrastructure requirements and affordable housing numbers and tenure, to be determined at permission in principle stage or technical details approval stage? The explanatory notes simply suggest that “the Secretary of State may also specify in the regulations, certain types of information for inclusion into the register alongside the entries …. For example, the site reference, address, size, an estimate of the maximum number of dwellings that the site would be likely to support, and its planning status.”

More generally, is there an Act with such blatant Henry VIII clauses, ie Parliament passing an Act with its fingers crossed behind its back so that it can amend the provisions in the statute without primary legislation? Section 2(10) takes the biscuit (“Regulations under this section may amend this chapter”), giving future Governments carte blanche to mutate the Act’s starter homes provisions in whichever way they choose. (Read “Why Henry VIII clauses should be consigned to the dustbin of history” by Richard Gordon).

Simon Ricketts 11.6.16

Personal views et cetera

Brownfield Thinking

“Brownfield land” is right up there with “hard-working families” in terms of the political buttons that it presses. But what is it and what are the implications of land being “brownfield”?
There is no planning law definition other than the definition of “previously developed land” in the glossary to the NPPF:

“Land which is or was occupied by a permanent structure, including the curtilage of the developed land (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure. This excludes: land that is or has been occupied by agricultural or forestry buildings; land that has been developed for minerals extraction or waste disposal by landfill purposes where provision for restoration has been made through development control procedures; land in built-up areas such as private residential gardens, parks, recreation grounds and allotments; and land that was previously-developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape in the process of time”.

It may be a surprise to some that there is nothing in the definition that connotes “under-used”, “vacant” or “derelict” – the definition does not exclude land which is currently in occupation (save occupation by agricultural or forestry buildings).

It may also be a surprise to some that (just as large parts of the green belt are anything but green) brownfield land is often anything but brown. The definition only excludes “private residential gardens, parks, recreation grounds and allotments” to the extent that they comprise “land in built-up areas”. The High Court recently confirmed (although it’s obvious on the wording of the definition) that land used as private residential gardens, parks, recreation grounds and allotments in the countryside as opposed to “in built-up areas” comprises brownfield land (Dartford v Secretary of State, 21 January 2016).

The Government has set as a policy objective that 90% of brownfield land “suitable for housing” should have planning permission by 2020. It is seeking to achieve this by a number of policy initiatives, which include:

Housing and Planning Act: permission in principle

The Act provides for the establishment of a register (which the explanatory notes to the Act, rather than the Act itself, explains is intended by the Secretary of State to be a register of brownfield land which is suitable for housing development). Local authorities will be able to place land on the register if it meets criteria which the Secretary of State will set down. The Explanatory Notes accompanying the Act state that “the criteria prescribed by the Secretary of State could for example include that the land must be available already or in the near future for housing development, that it must not be affected by physical or environmental constraints that cannot be mitigated and that it must be capable of supporting 5 dwellings or more“.

The effect of being on the brownfield land register is that, by a general development order, the Government will give automatic permission in principle for certain specified types of site suitable for housing which are on the register, or which have been allocated for that purpose in other local plan documents. The details of what the criteria will be are left for the general development order. The detailed procedure that authorities have to follow in deciding what land goes on the register is also left for later regulations.

Strengthened NPPF policies

The Government has consulted on changes to the NPPF, which would:

– provide that “substantial weight should be given to the benefits of using brownfield land for housing (in effect, a form of ‘presumption’ in favour of brownfield land). We propose to make it clear that development proposals for housing on brownfield sites should be supported, unless overriding conflicts with the Local Plan or the National Planning Policy Framework can be demonstrated and cannot be mitigated” (paragraph 22)

– include an even stronger presumption for starter homes on unviable or underused brownfield land – “Alongside these proposals, we propose to widen the scope of the current exception site policy for starter homes to incorporate other forms of unviable or underused brownfield land, such as land which was previously in use for retail, leisure and non-residential institutional uses (such as former health and educational sites). This will provide clarity about the scope of the exception site policy for applicants and local planning authorities, and release more land for starter homes.” (Paragraph 40)

– strengthen the starter homes exception sites policy – “To ensure there is greater certainty that planning permission will be granted for suitable proposals for starter homes on exception sites, we propose to be clearer about the grounds on which development might be refused, and to ensure that this is fully embedded in national planning policy. Specifically, we propose to amend the exception site policy to make it clearer that planning applications can only be rejected if there are overriding design, infrastructure and local environmental (such as flood risk) considerations that cannot be mitigated.” (Paragraph 42)

– support development of brownfield land in the green belt if it “contributes to the delivery of starter homes” (weaselly word, “contributes”!) as long as there is no substantial harm to the openness of the green belt. (Paragraph 53)

The consultation period has closed and we await what emerges…

PS ask a tax lawyer about brownfield land and you will get a very different answer based on its use as shorthand for reliefs available for remediation of contaminated land.
Simon Ricketts 8.6.16

Personal views et cetera