Category: Housing

Permitted Development: What Next?

This Government loves permitted development rights. Two of their most ambitious ones so far have yet to be reflected in legislation. I’m not holding my breath as to when they will emerge or how workable and/or significant they will turn out to be.

Office demolition and residential rebuild



Brandon Lewis announced way back on 13 October 2015 that there would be a new development right to “allow the demolition of office buildings and new building for residential use”.
I assume that the delay has been caused by the need for an amendment to section 60 of the Town and Country Planning Act 1990, now achieved by section 152 of the Housing and Planning Act 2016, because section 60 limited (in relation to permitted development rights for the erection, extension or alteration of any building) the matters that may be dealt with by way of prior approval, to “the design or external appearance of the building”. Section 152 extends this, with immediate effect, to “any matters that relate to those operations…and are specified in the order”.
That additional flexibility will be necessary because surely all manner of issues will need to be controlled, not least the issues dealt with by way of prior approval in relation to office to residential use permitted development use changes: highways and transportation, flood risk, contamination and issues in relation to noise from nearby commercial premises.

However there are bigger unanswered questions:
– what scale of redevelopment will be possible?

– will the height, floorspace quantum or development envelope be pegged to that of the existing building?

– what of mixed uses (for example commercial uses at the ground floor)?

– presumably no starter homes or affordable housing requirements?

In London, the Government is also going to come up against London Mayor Sadiq Khan’s well publicised concern as to the loss of office space by way of permitted development rights. This is his 3 June 2016 press statement.
Upward extensions in London



The February 2016 DCLG/Mayor of London consultation paper sought views on proposals “to increase housing supply in the capital by allowing a limited number of additional storeys to be built up to the roofline of an adjoining building through permitted development rights, local development orders or development plan policies”.
The key components of a new permitted development right would be
– requirement that the additional space be used to provide self-contained additional housing units

– upwards constraint of one or two additional storeys, “up to the level of an adjoining roofline”. The right could not be used incrementally on premises adjacent to those where the right has been exercised. Confusingly, it is said that the right “would apply to premises within a single terrace, where the premises at either end of the terrace have a higher roofline than the rest of the terrace”. This is pretty specific!

– neighbour consultation scheme equivalent to that introduced in May 2013 for larger single storey rear extensions to homes and only where neighbours raise objections would the LPA have to consider the impact of the proposed development on their amenity

– prior approval requirement to allow for consideration of other issues, including space standards and method and hours of construction

– some locations to be excluded eg within the curtilage of listed buildings. The paper indicates that the right would not necessarily be excluded from conservation areas or from protected view corridors but “an additional prior approval could require the local planning authority to consider the impacts of the proposed development on a conservation area or a protected view. London boroughs would determine whether further storeys are appropriate in specific conservation areas or protected views and apply local design codes…”

Sadiq Khan has expressed no view yet on the upward extension initiative. Assuming it goes forward to legislation, do we really think that there are many sites that meet the criteria and which would either not have proceeded smoothly anyway via a traditional planning application or which would not have been stymied in any event due to landlord and tenant, rights of light or viability concerns?

Simon Ricketts 15.6.16

Personal views etc

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