PiPs and the Brownfield Land Register

Are you ready for PiPs and the Brownfield Land Register?

The Town and Country Planning (Permission in Principle) Order 2017 and the Town and Country Planning (Brownfield Land Register) Regulations 2017, made under powers provided by the Housing and Planning Act 2016, don’t sound like the most exciting pieces of legislation you've ever seen but they are important and provide a fast-track route for getting planning permission for new housing. If you're a landowner or developer, this could be great news. If you're affected by development, you may not be so quite so overjoyed.

Brownfield Land Register

The Brownfield Land Register Regulations came into force on 16 April 2017 and require Local Planning Authorities (LPAs) to prepare and maintain by 31 December 2017 a register of previously developed land in their area, and land suitable for residential development.

The Register must be kept in two parts:

Part 1

The LPA must list all previously developed land (the National Planning Policy Framework (NPPF) definition applies) in the LPA's area that meets all the following criteria:

the land has an area of at least 0.25 hectares or is capable of supporting at least 5 dwellings;
the land is suitable for residential development which means that it has either been allocated in a local development plan document for residential development, has planning permission for residential development, has the benefit of a grant of permission in principle for residential development or is, in the opinion of the LPA, appropriate for residential development having regard to adverse impacts;
the land is available for residential development, which means that the owner or a developer has expressed an intention to sell or develop the land at a date not more than 21 days before the entry date (the date on which the land is put on the register), or that in the opinion of the LPA there are no issues relating to ownership or other legal impediments which might prevent residential development; and
residential development of the land is achievable, which means that, in the opinion of the LPA, the development is likely to take place within 15 years of the entry date.

The LPA may at its discretion include land in Part 1 sites smaller than 0.25 hectares and not capable of supporting 5 dwellings.

Part 2

LPAs must enter land in Part 2 of the Brownfield Land Register which meets the above criteria and where they have decided to allocate the land for residential development having complied with publicity, notification and consultation requirements. This means that LPAs will only include land in Part 2 if they want residential development on the land to have the benefit of Permission in Principle (see below).

Notice of the intention to include the land in Part 2 must be advertised in a notice on or near the land and on the authority's website. That notice must include a statement that representations on the proposal to enter land in Part 2 must be made to the LPA within a period of 14 days from the date on which the specified information is published on the website or 21 days from the date of first display of the site notice. The LPA must take into account representations made within the specified period before entering land in Part 2.

Where the land is within 10 metres of relevant railway land, the LPA must service notice on any infrastructure manager of the railway land and take into account representations made within the specified period.

The LPA must also consult: the relevant County Council for their area; in London, the Mayor of London (for schemes of potential strategic importance); other relevant consultees; and, anyone who the LPA would have had to consult on a planning application for residential development on the land, before entering land in Part 2.

For each entry in Part 2, the Brownfield Land Register must state:

the minimum and maximum number of net dwellings, given as a range, which the authority considers the land is capable of supporting and the scale and use of any non-housing development on the land
the ownership status
the planning status (whether it has planning permission

Land must not be included in Part 2 if residential development on the land would be:

Schedule 1 development under the EIA Regulations; or
Schedule 2 development unless a screening opinion has been adopted to the effect that the maximum number of dwellings which the authority considers the land could support would not be EIA Development.

Permission in Principle

The Permission in Principle Order came into force on 15 April 2017. It provides that Permission in Principle (PiP) is granted for land included in Part 2 of a brownfield land register. The PiP is for:

housing development within the range specified in Part 2 of the Register
non-housing development as described in Part 2.

The LPA's planning register will need to include a new section, providing details of the PiP and the land to which it relates.

Before any development can commence, Technical Details Consent (TDC) must be obtained. However, such consent cannot be obtained if the PiP has been in force for longer than 5 years from the date on which the PiP came into force or if there has been a material change of circumstances since that date.

Section 70 of the Town and Country Planning Act 1990 confirms that a TDC application is an application for planning permission and the LPA can attach planning conditions in the usual way but there cannot be any reserved matters as in the case of an outline planning permission. Section 106 and highways agreements may also be required. The Government has confirmed that no fee will be payable for a PiP granted through inclusion of the land in Part 2 of a Brownfield Land Register, but fee regulations will be amended to provide a fee for TDC applications. The amendment has not yet been made and it is unclear whether or not LPAs will accept TDC applications until it has.

Other PiPs

The Housing and Planning Act 2016 also provides for PiPs to come into effect as a result of a qualifying (local or neighbourhood plan) document and following an application to the LPA. However, regulations that enable such PiPs to come into effect have not yet been made.

Part 2 Brownfield Land Register and PiPs – will they take off?

Whether or not Part 2 land and PiPs become commonplace depends on how LPAs respond to the new powers. They will HAVE to include brownfield land in Part 1 of the Register but will they have the resources and will to include land in Part 2?

For developers, a PiP will be beneficial as it will establish that the principle of residential development on a site is acceptable. This will help discussions with funders and JV partners but will it radically speed up the planning process? The TDC application will be a planning application to be determined in accordance with the NPPF and the development plan. Section 106 obligations will be required in the usual way. While the Brownfield Land Register and PiPs may speed up the grant of planning consent slightly, we do wonder whether the main benefit of the Brownfield Land Register is to force LPAs to provide a list of brownfield sites which makes the land agent's job easier – if the main outcome is that there is a greater awareness of which sites are suitable for development, all the Government's hard work in getting these rules in place won't have been entirely wasted.