Automatic Permission for Housing on Brownfield Sites

Mon, 30 Nov 2015

The present situation (1) The NPPF

1.    The National Planning Policy Framework’s paragraph 17 lists 12 core land-use planning principles, including  “encourage the effective use of land by reusing land that has been previously developed (brownfield land), provided that it is not of high environmental value”.  Within Green Belts its paragraph 89 lists six circumstances where the construction of new buildings is not inappropriate, including “… the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development”.  Its paragraph 111 states, “Planning policies and decisions should encourage the effective use of land by re-using land that has been previously developed (brownfield land), provided that it is not of high environmental value. Local planning authorities may continue to consider the case for setting a locally appropriate target for the use of brownfield land.”

2.    NPPF’s Annex 2 defines ‘previously developed land’ as: 

Land which is or was occupied by a permanent structure, including the curtilage of the developed land (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure. This excludes: land that is or has been occupied by agricultural or forestry buildings; land that has been developed for minerals extraction or waste disposal by landfill purposes where provision for restoration has been made through development control procedures; land in built-up areas such as private residential gardens, parks, recreation grounds and allotments; and land that was previously-developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape in the process of time.

3.    Annex 2 defines ‘windfall sites’ as:

Sites which have not been specifically identified as available in the Local Plan process. They normally comprise previously-developed sites that have unexpectedly become available.

(2) Planning Practice Guidance

4.    NPPG guidance includes the following:

How should viability be considered for brownfield sites in plan-making?

The National Planning Policy Framework sets out a core planning principle that planning policies should encourage the effective use of land by re-using land that has been previously developed (brownfield land), provided that it is not of high environmental value.

Local Plan policies should reflect the desirability of re-using brownfield land, and the fact that brownfield land is often more expensive to develop.  Where the cost of land is a major barrier, landowners should be engaged in considering options to secure the successful development of sites.  Particular consideration should also be given to Local Plan policies on planning obligations, design, density and infrastructure investment, as well as in setting the Community Infrastructure Levy, to promote the viability of brownfield sites across the local area.  Provided sites are likely to deliver a competitive return for willing landowners and willing developers authorities should seek to select sites that meet the range of their policy objectives, having regard to any risks to the delivery of their plan.  Authorities do not have to allocate only those sites that provide the maximum return for landowners and developers.

Local planning authorities should seek to work with interested parties to promote the redevelopment of brownfield sites, for example Local Enterprise Partnerships.

To incentivise the bringing back into use of brownfield sites, local planning authorities should also look at the different funding mechanisms available to them to cover potential costs of bringing such sites back into use, when considering which sites to allocate. For brownfield sites, assumptions about land values should clearly reflect the levels of mitigation and investment required to bring sites back into use.  The impact of land remediation relief could also be considered when looking at the viability of brownfield sites. 

How should viability be considered for brownfield sites in decision-taking?

The National Planning Policy Framework sets out a core planning principle that in decision-taking local planning authorities should encourage the effective use of land by re-using land that has been previously developed (brownfield land), provided that it is not of high environmental value.

Local planning authorities should seek to work with interested parties to promote the redevelopment of brownfield sites, for example Local Enterprise Partnerships.

To incentivise the bringing back into use of brownfield sites, local planning authorities should:

•    look at the different funding mechanisms available to them to cover potential costs of bringing such sites back into use

•    take a flexible approach in seeking levels of planning obligations and other contributions to ensure that the combined total impact does not make a site unviable. 

Costs [plan-making] 

For an area wide viability assessment, a broad assessment of costs is required. This should be based on robust evidence which is reflective of local market conditions. All development costs should be taken into account including… 

•    known abnormal costs, including those associated with treatment for contaminated sites … or historic costs associated with brownfield… sites… 

Costs [decision-taking]

Assessment of costs should be based on robust evidence which is reflective of market conditions. All development costs should be taken into account including…

•    abnormal costs, including those associated with treatment for contaminated sites… or historic costs associated with brownfield… sites;  

How should development be valued for the purposes of the [CIL]? 

… a charging authority should directly sample an appropriate range of types of sites across its area, in order to supplement existing data. This will require support from local developers. The exercise should focus on strategic sites on which the relevant Plan… relies, and those sites where the impact of the levy on economic viability is likely to be most significant (such as brownfield sites)… 

The focus should be in particular on strategic sites on which the relevant Plan relies and those sites (such as brownfield sites) where the impact of the levy is likely to be most significant. 

How should development costs be treated?

A charging authority should take development costs into account when setting its [CIL] rate or rates, particularly those likely to be incurred on strategic sites or brownfield land… 

Can brownfield land have a high ecological value?

It can do.  A core principle in the National Planning Policy Framework is to encourage the effective use of land by reusing land that has been previously developed (brownfield land), provided that it is not of high environmental value. This means that planning needs to take account of issues such as the biodiversity value which may be present on a brownfield site before decisions are taken

Defra has published information on Open Mosaic Habitats, a specific type of habitat that is of high ecological value and which occurs on brownfield land…  

The present situation

5.    Although changes in methodology mean that the statistics must be treated with caution, it seems clear that the proportion of housing being built on brownfield sites has been declining: a historic peak of 81% in 2008; 68% in 2011; 60% in 2013/14. The extent to which the decline is due to a reduction in the amount of available brownfield land, or to viability problems following the 2008 crash, is uncertain. 

6.    In response to criticism about disposal of publicly owned land, DCLG has said:

“Previous governments allowed valuable brownfield land to go unused whilst housebuilding levels crashed to their lowest levels since the 1920s.  We have got the country building again and are releasing surplus government land to protect taxpayers from paying for their upkeep and build the homes families need.  This has released enough land to build 109,000 new homes …”  

8.    In June 2014, George Osborne announced the then Coalition Government's aim to secure local development orders granting planning approval on 90 per cent of brownfield sites suitable for housing by 2020.

Delivering change: Building homes where we need them  

9.    This report identifies the ten least affordable “cities” in Great Britain in having the highest ratio of house prices to income. They are in this order starting from the least affordable: Oxford, London, Cambridge, Brighton, Bournemouth, Crawley, Aldershot, Reading, Bristol and Worthing. Arguably these areas are in greatest need of a large number of new dwellings. The report also shows that they have a particularly limited supply of brownfield land. All of these “cities” are in southern England and all but two (Bristol and Bournemouth) within 60 miles of London.

10.    The report considers the capacity of brownfield land if densities were increased:

Cities can deliver homes within their boundaries by increasing the density of existing communities.  In the ten least affordable cities, if every site was fully built out, there would be the capacity for around 425,000 extra houses on brownfield land.  But much of this land is complex to develop, and requires cities to take active approaches to enable them to be built on: providing investment for new infrastructure, undertaking land assembly and financing or developing housing directly.  This is expensive, especially in the current political climate, and will require dedicated investment. 

11.    However, as the report’s conclusions point out:

… even this figure falls a third short of the minimum 685,000 homes these cities need over the next ten years, meaning that building on existing brownfield sites will not be enough.

12.    A successful approach to increasing land for homes in these cities will involve: (1) developing brownfield land; secondly; (2) re-evaluating their green belt;  and (3) working with authorities that neighbour a city.

The Government’s proposals

13.    ‘Fixing the Foundations’  stated, that the government would introduce a new zonal system that will effectively give automatic permission on suitable brownfield sites. It included the following:

A zonal system for brownfield land

9.13 The government is committed to an urban planning revolution on brownfield sites, including funding to provide infrastructure, strong local leadership to shape development and assemble sites, and the removal of unnecessary planning obstacles.

9.14 Previous studies have found that the country’s planning system – where development proposals require individual planning permission and are subject to detailed and discretionary scrutiny – can create the sort of “slow, expensive and uncertain process” that reduces the appetite to build.  The government is clear on the need to promote use of brownfield land, and will remove all unnecessary obstacles to its re-development, including these sorts of planning obstacles.

9.15 The government has already committed to legislating for statutory registers of brownfield land suitable for housing in England. The government will go further by legislating to grant automatic permission in principle on brownfield sites identified on those registers, subject to the approval of a limited number of technical details. On brownfield sites, this will give England a ‘zonal’ system, like those seen in many other countries, reducing unnecessary delay and uncertainty for brownfield development.

9.16 In the spring, the government consulted on reforms to bring forward more brownfield land for development by making the compulsory purchase regime clearer, faster and fairer for all parties.  This first round of reforms will be introduced through legislation in this session of Parliament.  A number of additional proposals have been received from that consultation; the government is considering the case for these additional compulsory purchase reforms to further modernise the system, and will bring forward proposals in the autumn.  These will allow local authorities and others to drive forward and shape brownfield development, and will not alter the principle of Secretary of State sign-off on compulsory purchase orders.

14.    ‘Fixing the Foundations’ also made specific comments relating to brownfield sites and in Greater London, in Greater Manchester and for starter homes. 

Housing and Planning Bill 2015-16

15.    At present brownfield sites do not contain any special position in statute. Rather, their development is encouraged by policy, practice guidance and by grants. The Housing and Planning Bill 2015-16, which was laid before Parliament on 13th October 2015, will, through the regulations and registers that it introduces, change that. (The Bill itself contains no express mention of ‘brownfield’, ‘previously developed’ or PDL.) 

16.    The Bill’s Part 6  deals with development in England. Within that part, sections 102 and 103 are of particular interest. S102 provides for a new concept “Permission in principle for development of land”. It does this by inserting new sections, s58A and 59A, into (and otherwise amending) the Town and Country Planning Act 1990. A new s58A of the 1990 Act would state:

(1) Permission in principle may be granted for development of land in England as provided in section 59A.

(2) For the effect of permission in principle, see section 70(2ZA) to (2ZC) (application for technical details consent must be determined in accordance with permission in principle, except after a prescribed period).

(3) A reference to permission in principle in any provision of this Act in its application to land in Wales, or in its application to functions of the Welsh Ministers or other authorities in Wales, is to be ignored. 

17.    The new s59A would state, inter alia

(1) A development order may either—

(a) itself grant permission in principle, in relation to land in England that is allocated for development in a qualifying document (whether or not in existence when the order is made) for development of a prescribed description; or

(b) provide for the granting by a local planning authority in England, on application to the authority in accordance with the provisions of the order, of permission in principle for development of a prescribed description.

(2) In this section—

“prescribed” means prescribed in a development order;

“qualifying document” means a plan, register or other document, as it has effect from time to time, which—

(a) is made, maintained or adopted by a local planning authority,

(b) is of a prescribed description,

(c) indicates that the land in question is allocated for development for the purposes of this section, and

(d) contains prescribed particulars in relation to the land allocated and the kind of development for which it is allocated.

(4) Permission in principle granted by a development order—

(a) takes effect when the qualifying document is adopted or made by the local planning authority or (if later) when the qualifying document is revised so as to allocate the land in question for development;

(b) is not brought to an end by the qualifying document ceasing to have effect or being revised, unless the order provides otherwise.

(6) A development order may make provision in relation to an application for planning permission for development of land in respect of which permission in principle has been granted.

(8) Local planning authorities must have regard to any guidance issued by the Secretary of State in the exercise of functions exercisable by virtue of this section.

18.    The intention underlying these provisions is to give automatic permission in principle for homes on registered sites with the LPA’s role confined to a limited number of yet-to-be-specified technical details. They will have to consider whether to grant “technical details consent”.

19.    The Bill’s s103 provides for registers to be kept by LPAs for particular kinds of land. Although not mentioned, it is clear that the Government intends these statutory registers to include brownfield land.

20.    The Bill’s Sch 6 contains minor and consequential amendments relating to permission in principle for development of land. This comprises 41 amendments to TCPA 1990, 2 to P(LB&CA)A 1990 and one to Schedule 1A to the Commons Act 2006.

The Effect

21.    The Bill is consistent with the intentions outlined in ‘Fixing the Foundations’.

22     Development of brownfield sites has been encouraged for many years. Many sites have been built on and many are already in the system (whether as planning permissions or allocations in adopted or emerging plans). Neighbourhood plans are showing a preference for brownfield over greenfield sites. Of course, there will be some new brownfield sites becoming available, but there are still raises question about many of the brownfield sites on which it is hoped to build housing. In many areas the most appropriate brownfield land will already have been developed, granted planning permission or allocated for development. Some will be highly contaminated and dependent on large grants to make them developable. Some will be next to land in an active use that is incompatible with housing. Some will be in parts of the country where there is low demand. There appear to be few unallocated major brownfield sites left in London and other high-demand areas.

23.    That does not mean that there will not be many suitable brownfield sites. Some industrial buildings will be coming to the end of their useful life. Some employment areas may only be accessible through residential streets that are not suitable for modern HGVs.  A recent example of this in Wales is the Lôn Hir Industrial Estate, Pontardawe, where an inspector granted planning permission to demolish existing industrial units and replace with up to residential units, having found that the existing industrial premises were ageing and in a poor state of repair, that that the prospects for significantly improved occupancy of the site were extremely poor and that the removal of heavy goods vehicle movements associated with the existing use from residential roads would be beneficial. 

24.    The Bill will no doubt have some effect, giving developers more confidence to spend money on brownfield sites and reducing delays and costs in the process of obtaining planning permissions. The extent to which it will increase the number of sites coming forward for development is however likely to be limited.

Article written by No5 Planning and Environment Barrister Tim Jones.

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