News Type: Legislation Update

In a bid to increase the amount of housing built on previously developed land, the 2016 Housing and Planning Act included proposals to introduce ‘Permission in Principle’ (PiP) for housing-led developments on certain sites.   New regulations published last week will bring PiP into force this month in respect of some registered brownfield sites.

Which regulations are coming into force?

The Town and Country Planning (Permission in Principle) Order 2017 comes into force on 15 April 2017, with the Town and Country Planning (Brownfield Land Register) Regulations 2017 coming into force on 16 April 2017.

The government intends to publish further guidance to support the introduction of Brownfield Land Registers and PiP by June 2017, but this new secondary legislation sets the legislative framework for their use.

Brownfield Land Registers (BLR)

The Brownfield Land Register regulations require all LPAs to prepare and maintain up-to-date, publically available registers of brownfield sites available for housing locally.  Importantly, LPAs must publish their registers by 31 December 2017.

The new BLR will comprise two parts:

·      Part 1 will list previously developed land with an area of at least 0.25ha, (or land which is capable of supporting at least 5 dwellings) that is ‘suitable’ and ‘available’ for residential development, and where residential development is ‘achievable’. The Regulations define these terms – for example ‘achievable’ means that, in the opinion of the LPA, the development will take place within 15 years.

·      Part 2 will list land which the LPA has decided to allocate for residential development following prescribed publication and consultation procedures.

Entries in the BLR need to specify “the minimum and maximum net number of dwellings, given as a range, which in the authority’s opinion, the land is capable of supporting” and “where the development includes non-housing development, the scale of any such development and the use to which it is to be put“.

Any development that would be subject to Environmental Impact Assessment (EIA) would be exempt from Part 2 of the register under the new regulations.

Permission in Principle (PiP)

PiP will automatically be granted for five years for development of land allocated in Part 2 of the BLR, subject to some exceptions.  Once PiP is granted, technical detailed consent will be needed to implement it and conditions may be attached.   The idea is that the principle of allowing a specified amount of housing on a site is established through the granting of PiP and that this is separated from the associated technical issues to give developers more certainty and reduce delays.

Usefully, PiP can be granted for the conversion and extensions of existing buildings to housing-led development as well as the redevelopment of sites for new housing.

The government’s press release issued today (3 April 2017) states:

‘Permission in principle’ will simplify the planning process for developers. It will give them more certainty over whether a site is suitable for development ahead of working up costly proposals to obtain full planning permission. This will encourage new development and increase the amount of land available to build on, helping to boost housing supply’.

Further legislation will follow at a later date, bringing PiP into force for land which is allocated for housing-led development in local plans and neighbourhood plans.

Impact of Permission in Principle

It is difficult to know exactly what impact PiP will have on the planning process and how quickly its effect will be seen.  What is certain, however, is that PiP represents a big change to the current planning system and may well prove to be an attractive alternative for developers seeking to secure permission for housing-led development on previously developed land.  73 local planning authorities have already piloted the new brownfield register and these authorities in particular are likely to be keen to publish the statutory BLR.

If you would like to discuss a specific brownfield site or any of the above, please feel free to contact one of the Firstplan team.

 

It is widely agreed that the use of planning conditions is an essential part of the development control process, often making otherwise unacceptable development acceptable and helping to achieve sustainable development. However, developers are all to often frustrated by LPA’s routinely attaching unnecessary and unreasonable conditions to planning permissions and consents. The approval of these conditions, particularly ‘pre-commencement’ conditions which need to be formally discharged before work can start on site, can sometimes cause costly delays.

The Government recognises the inappropriate use of conditions as a problem, and has responded by introducing a power in the Neighbourhood Planning Bill to ensure that pre-commencement conditions can only be used with the agreement of the applicant. Planning Practice Guidance already clarifies that it is best practice for a LPA to agree to proposed conditions with an applicant before a decision is taken, and as early in the planning process as possible. The Bill will take this one step further by giving this best practice guidance a statutory footing for the first time.

Alongside this, the Government issued a consultation paper in September 2016 entitled Improving the Use of Planning Conditions which sought views on how the process of prohibiting the use of pre-commencement conditions without the agreement of the applicant would operate, and the potential for a wider application of the proposed powers in the Bill to prohibit conditions in targeted circumstances. The Government has now promptly issued their response to this consultation exercise (December 2016).

In terms of the pre-commencement conditions process, the Government remains of the view that it should be the responsibility of the LPA to chose the most appropriate time to seek agreement of the applicant to any pre-commentment conditions and where dialogue begins early, this requirement should not lengthen the process of determining a planning application. In order to avoid undue delays in the process, the Government is proposing a default period of 10 working days, after which an applicant’s agreement will be deemed to be given (in addition to the ability for local authorities to agree a longer timescale with the applicant). The default period will commence once the LPA has given notice of its intention to impose a pre-commencement condition and sought the agreement of the applicant.

The Government anticipates that this process will reduce the workloads of authorities once permissions have been granted by reducing the number of pre-commencement conditions that have to be discharged. Whilst this may well prove to be the case, the introduction of this default notice period could place additional pressure on LPA’s at the application stage. The Government stresses the importance of ensuring that the default period does not impede the timely determination of planning applications, and advises that local authorities should therefore give careful consideration to how this period fits with the statutory determination deadlines. In practice, requiring Planning Officers’ to give an applicant two week’s notice if a pre-commencement condition is to be imposed and still determine that application within the eight week (or 13 week) statutory determination period, will effectively reduce the time they have to consider the application to six weeks. In theory, this should speed-up the determination of applications. However, with Planning Departments’ under continued pressure to meet deadlines (with limited resources), the unintentional outcome of this default period may be that we see an increase in the number of applications refused as officers’ find that they have insufficient time to complete this additional stage of the determination process within the target date.

The second part of the consultation proposed greater clarity for LPA’s and applicants about a number of types of conditions which Planning Practice Guidance identifies as not meeting the 6 policy tests in paragraph 206 of the National Planning Policy Framework. The Government is proposing to introduce secondary legislation to expressly prohibit each of the following six types of conditions:

1. Conditions which unreasonably impact on the deliverability of a development – e.g. disproportionate financial burden
2. Conditions which reserve outline application details
3. Conditions which require the development to be carried out in its entirety
4. Conditions which duplicate a requirement for compliance with other regulatory requirements – e.g. building regulations
5. Conditions requiring land to be given up
6. Positively worded conditions requiring payment of money or other consideration

In light of consultation responses, a further consultation of the draft regulations will be carried out providing greater clarity on the detail on the conditions proposed to be prohibited. Updated guidance will be published in due course.

The Neighbourhood Planning Bill is currently awaiting its Second Reading in the House of Lords on 17 January 2017 and we will keep you up to date on its progress and the aforementioned secondary legislation. In the meantime, if you have any questions regarding the use of planning conditions, please feel free to contact one of the Firstplan team.

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The Neighbourhood Planning Bill, announced in the Queen’s Speech in May, has now been launched in Parliament.

The government hopes that the Bill will strengthen the neighbourhood planning process ‘by simplifying how plans can be revised as local circumstances change and ensure that plans come into force sooner once approved by local people’. To achieve this, new measures include the introduction of a ‘proportionate process’ for modifying neighbourhood development orders and plans which have already been approved, and a clause to allow for changes to the boundaries of neighbourhood areas.

Other measures aim to ensure that pre-commencement planning conditions, which require developers to take action before work can start on site, are only used when strictly necessary. Under the new measures, pre-commencement conditions can only be used by local planning authorities where they have the written agreement of the developer.

The Bill also includes a clause that will require local planning authorities to record prior approval applications for residential conversions on their planning registers to allow the government to monitor the number of new homes allowed through permitted development.

A technical consultation on the implementation of the provisions in the Bill has been launched and will run until 19 October 2016. A separate consultation has also been launched on ‘Improving the use of planning conditions’, which closes on 2 November 2016.

If you have any queries regarding the Bill or the associated consultations, please feel free to contact one of the Firstplan team.

Following its Third Reading in the House of Lords on 27 April 2016, the Housing and Planning Bill will now go back to the Commons for consideration.

The Bill has been given a rough time by the Lords with the Government being defeated 13 times on various key provisions. Perhaps most significantly, the Government’s flagship Starter Homes scheme has suffered two amendments giving local authorities discretion over the number of new of Starter Homes built in their area and requiring Starter Home buyers to pay back their 20 per cent discount upon sale (with a reduction of 5 per cent a year for a period of 20 years).

The House of Lords also voted to expressly limit the use of ‘Planning in Principle’ to housing-led development, and to introduce a new right for neighbourhood groups to appeal against the approval of planning permission where permission has been granted for an application that does not accord with policies in an emerging or adopted neighbourhood plan.

The Government was also defeated over affordable housing and a new clause has been added to enable local authorities to require small sites and rural sites to make affordable housing contributions.

Further amendments made by the Lords include a requirement for all new homes built in England from 1 April 2018 to achieve a new carbon compliance standard and Sustainable Drainage Systems (SuDs) to be used in all new development.

The Bill will now enter ‘ping pong’ between the Houses of Lords and Commons as MPs consider their response to the changes, and it will no doubt evolve further with the Government vowing to fight hard against many of these defeats.

We will continue to keep you updated on the progress of the Bill. If you have any queries in the meantime, please feel free to contact one of the Firstplan team

Amendments to the General Permitted Development Order 2015 came into force today (6 April 2016) which make permanent the previously temporary right to change a building used as an office into residential use.

A change of use from office to residential use can be secured through the prior approval process which gives the local planning authority (LPA) the ability to assess a scheme with regard to the transport and highways impacts of the development, contamination risks, and flooding risks on the site. In addition to this, a new fourth test is now in place which also allows the LPA to consider the impact of noise from commercial premises on the intended occupiers of the development.

The new PD rights require the conversion to be completed within three years of the date that prior approval is secured. LPA’s which currently have areas exempt from the permitted development rights (such as the Central Activities Zone in London) have until 31 May 2019 to replace the exemption with an Article 4 Direction, if they wish to do so.

New permitted development rights were also introduced today which allow the change of use of a launderette to residential use, as well as the change of use of a building in light industrial use to residential use (within a three year period from 1 October 2017 until 30 September 2020).

Last week the Government finally confirmed that the permitted development rights first introduced in May 2013, will be made permanent from 6 April 2016 to continue to bring forward sites for much-needed housing across England. These provisions are to be made under Class O, Part 3 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016.

Over the past three years these provisions have provided a means of securing the change of use of office premises to residential use whilst avoiding many prescriptive planning requirements; such as affordable housing and other contributions and compliance with detailed residential space standards and unit mix requirements. A change of use can be secured through the prior approval process which gives the Local Authority the ability to assess a scheme with regard to the transport and highways impacts of the development, contamination risks, and flooding risks on the site. These updated regulations have now introduced a fourth test which includes the impacts of noise from commercial premises on the intended occupiers of the development.

The updated regulations also confirm that conversions must be completed within a period of 3 years starting with the prior approval date. Certain areas which are already exempt from the permitted development right (such as the Central Activities Zone in London) will have their exemption removed with effect from 31 May 2019, potentially opening new areas for residential conversions to come forward. Local Authorities will, however, be allowed to bring into force Article 4 Directions removing the rights, if they wish to do so. The previously rumoured extension of the rights to allow for the demolition and rebuilding of office buildings have not been introduced in this package of updates.

The release also introduces a new temporary permitted development right for the change of use of light industrial premises B1(c) to residential from 30 September 2017 until 1 October 2020 to further enhance delivery of housing. This provision relates to buildings used solely for a light industrial use on 19th March 2014 or when it was last in use, with a floor area below 500 square metres. This permitted development provision is also subject to a condition which requires that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval is required. In addition to the four tests noted above, this permitted development right includes a fifth test.

This additional test allows the Local Authority to assess the impact of a change of use on the sustainability of important industrial, storage and distribution areas. In addition, any request for prior approval needs to be supported by a statement setting out the evidence the developer relies upon to demonstrate that the building was used solely for a light industrial use on 19th March 2014. The updated legislation is available here.

Should you wish to discuss these provisions further or require advice on a specific site, please feel free to get in touch with a member of our team on: 020 3096 7000.

The Housing and Planning Bill 2015-16 had its first reading in the House of Commons this week and, as anticipated, the planning system is again the target of some fairly radical changes aimed at speeding up the delivery of new homes to help the Government meet its ambitious target of building one million homes by 2020. Amongst the key provisions are new measures allowing automatic planning permission on allocated brownfield land, a new legal duty on local authorities to provide Starter Homes and a requirement that Local Plans are in place by 2017.

Brownfield Sites – The Bill will enable local authorities or neighbourhood groups to grant ‘planning permission in principle’ for housing sites at the point when a site is allocated in an adopted local, neighbourhood plan or placed on a local brownfield register.  Further legislation will follow setting out the ‘type and scope’ of development for which this permission will be granted, but at the moment the Government intends to limit it to minor housing developments of fewer than 10 units.  The Bill confirms that the permission in principle cannot be granted subject to any conditions, and instead, an application for ‘technical details consent’ will be required – at which point, appropriate conditions may be attached.  Consultation will take place on what will constitute the ‘technical details consent’ in due course.

Starter Homes –  The Bill includes provisions which require local authorities to ‘actively promote’ the development of Starter Homes – properties available to first time buyers aged under 40 at a discount of 20% below market rates. As well as a general duty to promote the supply of Starter Homes through the local plan process, the duty will also apply to decisions on planning applications to ensure that they become a ‘common feature’ of new residential developments across England.  New regulations will be brought into force so that local authorities will only be able to grant planning permission for certain residential developments if specified requirements relating to Starter Homes are met.

The Bill follows a separate announcement by David Cameron last week confirming that Starter Homes will be included in the affordable housing definition – meaning that, for the first time, developers have the option of providing low-cost housing for sale  as part of their affordable housing obligation rather than just rent as was previously the case. The Bill confirms that regulations ‘could include provision of a particular number or proportion of Starter Homes on site or the payment of a commuted sum to the local planning authority for the provision of Starter Homes’.

Self-Builds –  From March 2016, the Government is bringing into force a requirement for local authorities to compile a register of persons seeking to acquire land to build or commission their own home, and for regard to be given to the register in decision making. The Housing Bill now takes this further by requiring local authorities to ensure that there are a sufficient number of plots to meet the demand of their local register. Interestingly, a clause in the Bill allows local authorities to apply for an exemption from this duty.

Local Plans – New provisions are introduced to ensure that all local authorities get Local Plans in place by 2017.  The Bill introduces powers to allow ‘targeted and proportionate intervention’ by the Secretary of State which is aimed at ensuring ‘the majority of local decisions to remain at the lowest appropriate level whilst ensuring a local plan is in place’. It will be interesting to see whether this new pressure on local authorities will indeed speed up the efficiency of their plan making, or result in the production of rushed plans which are ultimately found to be unsound.

Neighbourhood Plans – The Bill introduces new provisions intended to speed up the neighbourhood planning process which, on average, currently take two years to complete.  New measures include powers to allow the Secretary of State to intervene to prescribe time limits for local authorities to decide whether to hold a referendum on a neighbourhood plan. Should a local authority fail to make this decision within the time limit, the new powers also allow the Secretary of State to intervene on the decision to send the plan to referendum.   A new clause is also introduced allowing neighbourhood forums to request notification of planning applications in their area in an attempt to enable them to participle more effectively in local planning and ‘promote appropriate new development’.

Nationally Significant Infrastructure Projects – Changes are introduced to allow developers to include an element of housing as part of their application for consent for an infrastructure project of national significance.

Planning Performance Regime – As is already the case with planning applications for major development, the Bill will extend the planning performance regime to allow smaller, non-major applications to be submitted to and decided by the Planning Inspectorate where the local authority has a track record of very poor performance in the speed or quality of its decision-making.

Office-to-Residential Use – The Bill was published on the same day that Housing and Planning Minister Brandon Lewis confirmed that temporary permitted development rights introduced in May 2013, which allow office premises to covert to residential use without having to apply for full planning permission, will be made permanent.  In addition to the PD rights being made permanent, those who already have permission will have three years in which to complete the change of use – ‘ending potential uncertainty for developers and enabling the development of much needed homes’.

Mr Lewis also announced that the rights will in future allow the demolition of office buildings and new building for residential use – a move which will broaden the scope of the PD rights to include many more underused office buildings, not just those capable of being converted to housing. In addition, new permitted development rights will enable the change of use of light industrial buildings and launderettes to new homes.

The emphasis of the Bill is certainly on speed, and improving the efficiency of the planning system is seen as a key element in delivering large numbers of new homes fast.  As the Bill is debated on its way through Parliament over the coming months, the Government will have the difficult job of convincing everyone that these changes are not only the best way to quickly increase housing supply, but that the changes can be implemented without compromising the quality of housing or indeed the quality of decision making.

If you have any queries about the Housing and Planning Bill or the announcements relating to office to residential use, please feel free to contact one of the Firstplan team.

It has been a busy few weeks for the Department of Communities and Local Government (DCLG) with reforms to the planning regime coming from all angles.  As the Housing and Planning Bill continues to make its way through parliament with a series of legislative changes designed to speed up the planning system, it is now the turn of planning policy to be shaken up.

Following the Government’s recent Spending Review, a consultation was launched today on extensive changes to the National Planning Policy Framework (NPPF).  The consultation runs until 25 January 2016, and includes some fairly significant proposals, namely:

• broadening the definition of affordable housing, to expand the range of low cost housing opportunities for those aspiring to own their new home.  The current definition includes some low cost home ownership models such as shared ownership and shared equity, provided that they are subject to “in perpetuity” restrictions or that the subsidy is recycled for alternative affordable housing provision.  The current consultation proposes that the definition of affordable housing is amended “so that it encompasses a fuller range of products that can support people to access home ownership”, and significantly, some of these products may not be subject to ‘in perpetuity’ restrictions or have recycled subsidy.

• increasing residential density around commuter hubs, to make more efficient use of land in suitable locations. The proposed amendments will expect local planning authorities, in both plan-making and in taking planning decisions, to require higher density development around commuter hubs ‘wherever feasible’ but falls short of actually introducing a minimum level of residential density in these locations.

• supporting sustainable new settlements, development on brownfield land and small sites, and delivery of housing allocated in plans. Perhaps most significant here is the proposal to make clearer in national policy that substantial weight should be given to the benefits of using brownfield land for housing (in effect, a form of ‘presumption’ in favour of brownfield land).

• supporting delivery of starter homes. Amendments are proposed to make clear that unviable or underused employment land should be released unless there is significant and compelling evidence to justify why such land should be retained for employment use.

The full consultation document can be found here. If you have any queries regarding the consultation, please feel free to contact one of the Firstplan team.