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Permission in principle – draft regulations published

In November 2016 we published a blog, at that stage we thought the Regulations to follow would give further guidance on how permission in principle, PiP, will operate.

The Housing and Planning Act 2016 (Permission in Principle etc.) (Miscellaneous Amendments) (England) Regulations 2017 have now been produced in draft and laid before Parliament. The draft Regulations are scant.  Tweaks are to be made to the Planning (Hazardous Substances) Act 1990, the Commons Act 2006, the Local Government Act 1972 and the Town and Country Planning Act 1990. The changes are largely administrative.

One more interesting change (to s96A of the TCPA) would allow non material amendments to be made to PiPs. The Government consultation envisaged that:

  1. only “in principle matters” be required as part of a PiP: a red line location plan, proposed uses (which must be “housing-led”), and the minimum and maximum quantum of residential development; and
  2. no conditions be attached to PiPs.

On this basis there seems to be little scope for non-material amendments unless the references are also intended to cover the technical details consents which must follow PiPs before there is an implementable permission. An alternative possibility is that more detail will be required for a PiP than originally envisaged.

The change proposed to the Commons Act will mean that an application for PiP is a “trigger event”, creating an exclusion from the right to apply for registration of a village green. This will bring PiP in line with planning permission and the same “terminating events” will once again switch on the right to apply for registration of a village green.

Otherwise, we are no further forward. When more detail emerges we will blog an update.

Permission in Principle – a mild salve for an acute housing shortage

So-called planning red tape has frequently been the scapegoat for the housing crisis. The planning system has also frequently been changed and tweaked with the aim of addressing the crisis.

principle_stamp_logo_cleanrtwertNow the Housing and Planning Act 2016 has introduced, through amendments to the Town and Country Planning Act 1990, permission in principle (PiP). Much of the detail will follow through Regulations.  The consultation earlier this year gives us an indication of what might be included.

What is Permission in Principle?

PiP establishes that a particular scale of housing-led development on a defined site is acceptable.  The aim is for a PiP to minimise the upfront and at-risk work of applicants.   This may be the case where the planning authority or neighbourhood forum is proactive, resourced and pro-development.

PiP can be (1) designated by the planning authority or neighbourhood forum or (2) granted in response to an application.  Designation is made through a “qualifying document”: a register (see below); development plan document; or neighbourhood plan.  A developer can make an application in respect of a site which, if granted, will have almost the same result.  In both cases PiP must be followed by technical details consent before any development can take place.

Designated PiPs will lapse after 5 years and granted PiPs after 3 years (although in both cases the planning authority can set an alternative period). Presumably the rationale for the difference is that (brave) authorities and forums may designate large sites whereas it is currently envisaged (see Consultation document) that a PiP may only be granted for a maximum of 10 homes.

If a planning authority refuses an application for PiP the applicant can lodge an appeal. This should give potential developers of small, contentious sites a quicker route to an inevitable appeal.

Brownfield Register

The 2016 Act introduces the “Register of Land” concept which authorities can be required to compile through Regulations. Known as the brownfield register, as the objective is to identify previously developed land, it is one method through which a PiP may be designated (the aim is to assist achieving the Government aim of 90% of brownfield land having consent for housing by 2020).

The Government has provided guidance for the 73 authorities participating in a brownfield register pilot scheme. Authorities should draw on up to date evidence, such as their Strategic Housing Land Availability Assessment evidence, in identifying sites.  They should then assess suitability for housing by considering availability, capacity and capability.  Sites which meet the criteria should then be compiled into the register (with those which were rejected noted) and published.

Having reviewed a sample of the completed pilot registers, the majority of identified sites already have planning permission. An indicator that other factors are preventing delivery? And that PiPs designated through the register are unlikely to make any significant contribution to housing delivery?

How much detail is required?

The Government’s initial thoughts are that only “in principle matters” be required as part of a PiP: a red line location plan, proposed uses (which must be “housing-led”), and the minimum and maximum quantum of residential development.

As yet, contrary to requirements for outline applications, points of access need not be identified. This is likely to change as robust assessment of a proposal is difficult without such information.  More detail may also be required for EIA development.  In making an EIA development designation,  the authority or forum should be able to make efficient use of information gathered as part of the Strategic Environmental Assessment and run elements of the assessments concurrently.  We may also see more streamlined assessments which properly assess likely significant effects but omit the many other effects often covered.

At the technical details consent stage, full details must be provided (currently to be for the whole PiP development). The planning authority must determine those details in accordance with the PiP, unless it has effectively expired or there has been a material change in circumstance since the PiP came into force.

Why PiP will not facilitate extensive housing delivery

Consistent with determining any other planning application, the planning authority must have regard to the development plan and any other material considerations in exercising either of their powers to create a PiP (see Housing and Planning Act 2016, provisions to introduce TCPA, sn.59(A)(11)).  Whilst this must be right in a plan-led system, and progressive planning authorities may make a designation against the backdrop of an emerging local plan, it leaves developers with the same difficulties they currently experience with outdated policy and an unwilling authority.

Unless thinking changes as a result of consultation, applications will only be allowed for a maximum of 10 homes. If the PiP route genuinely offers a more expedient route than preparing an outline application, limiting applications to 10 homes is a real missed opportunity.  We will not see developers making bold PiP applications for hundreds of homes on unallocated sites based on substantive material considerations.

Government currently considers that technical details consent should come forward for the entire PiP area at once, a disadvantage compared to the operation of a large outline permission.  It is unclear why this measure, which could certainly delay delivery, has been included.  Perhaps the secondary legislation will more sensibly allow for phasing.

At this stage it is unclear whether PiP will achieve the aim of greater certainty and speed in the planning process and whether it offers anything more appealing than allocations, outline planning applications and local development orders.