Housing and Planning Act 2016: Permission in Principle and Brownfield Register Regulations issued

Regulations required to put meat on the bone of the Housing and Planning Act 2016 ('the HPA') provisions introducing permission in principle and the brownfield register have been laid before Parliament in the last week, and are due to come into force on 15 and 16 April 2017 respectively.

The Town and Country Planning (Permission in Principle) Order 2017 ('the PiP Order')

The PiP Order, which can be read here, comes into force on 15 April 2017. In truth the PiP Order addresses not just permission in principle, but also the brownfield register, as the two are closely linked.

The PiP  Order:

1. Specifies the information that must be included in an entry on the brownfield register in order that the land is allocated for development. It does this by cross referring to the Town and Country Planning (Brownfield Land Register) Regulations 2017. See below for more details on this.
    
2. Confirms that land in Part 2 of the brownfield register has permission in principle for the number of houses specified in the relevant entry, and non housing development also so specified.
    
3. Requires that the planning register includes a section relating to permissions in principle.
    
4. Provides that the period during which technical details consent must be determined in accordance with the relevant permission in principle is 5 years.

The schedule to the PiP Order then sets out a series of amendments to other legislation. There are numerous such amendments required, such as to the revocation and compensation provisions in the Town and Country Planning Act 1990. More particularly, in terms of determination timescales and technical details consent ('TDC'), the specified periods are 10 weeks for major development and 5 weeks for non major. This is extended to 16 weeks for TDC for development requiring an environmental impact assessment ('EIA').

The PiP Order also amendments the Town and Country Planning (Development Management Procedure)(England) Order 2015 in relation to TDC to provide for a 14 day consultation period and a 21 day site notice and to apply reduced consultation requirements.

The Town and Country Planning (Brownfield Land Register) Regs 2017 ('the BR Regs')

Partnering the above, the BR Regs, available here, come into force on 16 April 2017 and require local planning authorities to keep a register (to be published by 31 December 2017 and reviewed annually) of previously developed land:

• which has an area greater than 025 hectare or which can support at least 5 dwellings;
• which is 'suitable' and 'available' for residential development; and
• where residential development of the land is 'achievable'

The quotation marks above are deliberate - each of those terms is defined in the BR Regs. 'Suitable' means the land has been allocated in a local development plan; or has planning permission (including planning permission in principle); or in the authority's view Is appropriate for residential development taking into account those matters specified in the BR Regs. 'Available' requires that the owner has expressed an intention to sell or develop the land, or a developer intends to develop, or in the opinion of the authority there are no issues relating to ownership or legal impediments which might prevent development. Lastly, 'achievable' means development is likely to take place in the next 15 years. Note also the general definition of 'residential development' as development 'the main purpose of which is housing'. This leaves some room for associated infrastructure.

The register should contain the information set out in Schedule 2 of the BR Regs. Part 1 of the register will simply be the land available that meets the above requirements. Part 2 will set out land meeting those requirements, but for which the authority have decided to allocate for residential development and have run through the publication, notification and consultation requirements in the BR Regs (regulations 6 to 13). These include:

• site notices
• in certain circumstances, notifying parish councils/neighbourhood forums,
• in certain circumstances, consultation with county planning authorities or the Mayor of London.
• consultation with the usual statutory consultees where required by the Town and Country Planning (Development Management Procedure)(England) Order 2015, and also any persons who would be consulted were a planning application to be made on the land.

As always, the requirement for an environmental impact assessment needs to be addressed. The BR Regs provide that Schedule 1 development (ie that will require an EIA by its very nature) cannot be entered into Part 2 of the register. For Schedule 2 development (that might need an EIA) the authority must ensure it has sufficient information, by reference to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 to carry out a screening exercise. Similar consideration must be given to 'habitats development', being development which may be likely to have a significant effect on a qualifying European site.

No doubt there will be a flurry of further changes to be announced, whether new secondary legislation or amendments to the NPPF, in the coming weeks and months. However, permission in principle and the brownfield register are certainly headline grabbers, and will have a noticeable impact on the activities of local authorities.