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Planning permission in principle

Print publication

19/02/2016

Background

The Housing and Planning Bill 2015-16 (the Bill) is one of two bills currently in the pipeline which will introduce wide-ranging changes for the housing and development sectors. Certain elements of the Bill have received considerable amounts of media attention and been the focus of extensive news coverage, such as the Starter Homes initiative and alterations to the compulsory purchase regime. Yet the concept of ‘permission in principle’ is a particularly interesting aspect of the new proposals. Provisions under the Town & Country Planning (General Permitted Development) (England) Order 2015 already grant permission for specified development without a full-form planning application having to be made. Until now, this approach has not usually been applicable to actual sites.

Provisions

The Bill will grant automatic planning permission in principle on brownfield sites, with the objective being to deliver the greatest number of new homes possible, while also protecting green belt land. In the first instance, local planning authorities (LPAs) will be required to prepare, maintain and publish a register of land that adheres to the prescribed description and criteria – i.e. that has been previously-developed. This will form the ‘Brownfield Register’. In compiling the Register, the LPA must have regard to the local Development Plan, national policies, and centrally-issued advice. Regulations would detail precisely what type of land should be included, as well as when LPAs have discretion whether to include or the power to exclude land when it deems appropriate.

A development order can then grant permission in principle for development of a certain type and certain scope on land allocated for development in a qualifying document. The reference to a ‘qualifying document’ means a “plan, register or other document…made, maintained or adopted” by the LPA that “indicates that the land in question is allocated for development for the purposes of [the legislative] section” and contains “prescribed particulars in relation to the land allocated and the kind of development for which it is allocated”. So effectively this will be land allocated in the Brownfield Register, as well as the local Development Plan and relevant Neighbourhood Plans.

In the first instance, it is envisaged this will be available for housing developments only. However, there is also the possibility for permission in principle to be derived from an alternative route – that is, by grant following an application to the LPA. The government’s current intention is for this to be used by small builders on minor housing schemes (fewer than ten units). Such applications will still, though, be subject to the usual application rules that apply to all planning applications relating to:

  • notice being given to landowners
  • powers to decline to determine where repeat applications are involved
  • appeals and calling-in of decisions by the Secretary of State.

Once permission in principle has been granted, it will be necessary for ‘technical details consent’ to be issued. Any application for technical details consent must be made within a certain time-frame (yet to be decided) and contain full details. The technical details application must be within the remit of the matters approved during the permission in principle stage. It is at this latter point where conditions can be imposed. Essentially, a full permission is therefore a combination of the ‘permission in principle’ and the ‘technical details consent’.

Comment

Details and precise provisions are to follow in secondary legislation, so certain elements of how this will operate in practice remain unclear. It is largely just general concepts that are outlined in the Bill.

As currently drafted, there appears to be no mechanism for independent examination, appeal, or Ministerial intervention in relation to a Brownfield Register. This could raise difficulties for those who find land under their ownership entered on a Register, with little prospect of redress. Thought will also have to be given to consultation and publicity requirements in the immediate locality where a Brownfield Register will take effect. At present, the local plan and neighbourhood plan processes do not involve owner notification, alerts to neighbours, or the display of site notices.

Careful consideration will also be needed regarding whether permission in principle will:

  • be available to authorise demolition;
  • allow certain changes of use
  • take into account designated (listed buildings and conservation areas) and undesignated (locally-listed buildings and ACVs) heritage assets.

Another concern is that the procedure still seems overly lengthy, in many ways differing little from the current approach to most large-scale applications with their dual outline-reserved matters application stages. Certainly though, there is maintenance of the well-established ‘rule’ that an LPA cannot renege once it has deemed a particular development acceptable in principle. The regime also has the potential to lessen the risk of proposals being refused where sites are unsuitable. Applicants could thus benefit from savings due to a reduced number of applications (with their associated costs) being required.

Even once the Bill receives Royal Assent, it is likely to be some time before the full effect of the new approach is felt. An impact assessment published alongside the Bill noted that the government expects it “will take time for full implementation to occur, as brownfield registers do not currently exist and the measure will apply to site allocations in future plans and not retrospectively”. However, the assessment noted that “the total number of developments annually that could benefit from permission in principle will grow as plans and registers come on stream and make site allocations”. Looking to the number of applications granted for major development in 2014/15 by way of a comparator, up to 7,000 sites per year could benefit from the proposal.

The concept of permission in principle, with its application to housing projects in particular, reinforces the government’s focus on providing new homes. In addition to the above, the Bill provides for large-scale housing projects to progress under the Nationally Significant Infrastructure Projects regime – bringing a streamlined application and decision-making process. Further, there is to be the extension of temporary permitted development rights, allowing conversion of underused office buildings to residential (subject to prior approval of certain matters). Having been introduced in 2013, the development rights are being retained beyond the current expiry date of 30 May 2016.

For further information, contact the Planning & Environment team at Walker Morris.

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