Brownfield Land Register and Permissions in Principle

Under the provisions of the Housing and Planning Act 2016, all local planning authorities must have published a Brownfield Land Register by the end of last year.

The Brownfield Land Register is split into two parts:

1. For sites that are categorised as ‘previously developed land’.
2. For sites that are categorised as benefitting from ‘Permission in Principle’ (PiP)

Which sites can be included on the Brownfield Land Register?

Part 1 (‘previously developed land’) comprises all those brownfield (i.e.: previously developed) sites with existing full (detailed) planning permission, outline permission and PiP, together with sites that do not yet have planning permission, but which the local authority has decided as being appropriate to be listed in Part 1. To be considered as appropriate for listing, the sites need to meet various criteria, including:

1. It either comprises an area of at least 0.25ha or is capable of supporting at least 5 dwellings
2. It is suitable for residential development
3. It is available for residential development

Do bear in mind that these are just three of the many complex criteria relating to ‘suitability’ and ‘availability’ for new homes and the ‘achievability’ for a housing development on the land in question.  The local planning authority has the ability to decide whether or not it also wishes to include sites that are smaller than 0.25 ha and that may not be capable of supporting residential dwellings, although it is unlikely they would do so in the context of the legislation.

When are Permissions in Principle granted?

Part 2 of the Brownfield Land Register relates only to those sites that are included within Part 1 of the Register and that the local planning authority has decided would be suitable to benefit from PiP. Remember that the PiP is for residential development only.

Before including any site on Part 2 of the Register, the local planning authority is required to do the following:

1. Display a site notice for at least 21 days
2. Serve a notice on the local parish council or ‘neighbourhood forum’ (if they have asked to be notified)
3. Put the relevant details on the relevant page of the authority’s website
4. Undertake specific consultations with relevant authorities in cases where, for example, the local authority believes those other relevant authorities should be consulted (such as Highways England or Network Rail)

PiP is automatically granted once a site is included within Part 2 of the Register and the permission must specify the amount of the proposed residential development (highlighting the minimum and the maximum number of dwellings).

Non-residential development can be included in a proposed development for which PiP has been granted, but, in these instances, the local planning authority will be required to indicate the use classes of the relevant buildings or land.

When does a PiP become a detailed planning consent?

Once PiP has been granted for a particular site, then a technical details consent (‘TDC’) must also be obtained before the development of the site can begin. The developer or landowner has five years during which to obtain TDC, following the initial grant of PiP. The obtaining of a TDC means that the site is then considered to have detailed planning consent.

The local planning authority can attach planning conditions to the TDC and planning obligations can also be applied at that time. Note, however, that Community Infrastructure Levy charges will only become due (if relevant) from the date that a development is begun.

Planning appeals and Judicial Reviews in relation to the new regime

Local planning authorities are required to review their Brownfield Land Registers each year and to remove any sites from the Register that they consider no longer meet the required criteria.

There is no legal requirement for a local planning authority to consider whether or not to move a site from Part 1 of the Register on to Part 2. Landowners or developers may consider a judicial review of a local authority’s failure or refusal to place any particular site on Part 2 of the Register.

An application for TDC may be appealed on the grounds of non-determination or refusal and an appeal may also be sought against any particular planning condition or conditions imposed on a TDC. The standard appeal procedure would need to be followed, in the usual way.

If the local authority refuses to grant the TDC, then the PiP will remain in force and a new application for TDC may then be made in due course. It is clear that a TDC application cannot be made if the PiP has itself expired.

Please also note that the Secretary of State has the power to call-in TDC applications, but he or she has no power to call in a decision made by a local planning authority on whether or not to enter a site on Part 2 of the register.

Conclusion of Brownfield Land Registers and Permissions in Principle

It is hoped that the introduction of the new regime and the granting of PiPs will enable developers to have a greater degree of certainty when considering development proposals and also bring brownfield land to the fore when considering new development. It remains to be seen whether this proves to be the case.

For further information contact Partner and Commercial Property Solicitor Ian Sanders on 0116 281 6227 or email ian.sanders@bhwsolicitors.com