PIPs (or the less fruity "Permission in Principle")
As promised this update will focus on the PIP provisions coming into effect on 1st June. Introduced by the Housing and Planning Act 2016 a "permission in principle" can in some ways be compared to an outline permission in that the detail is dealt with at a later stage. Unlike an outline permission however it is extremely limited and only covers issues of land use, location and the amount of development permitted. The intention behind PIPs was to enable the principle of development to be established at an early stage with limited information to give certainty to potential developers of land and hopefully reduce costs. The detailed element is dealt with through the "technical details consent" (which again can be compared to the existing reserved matters stage). It will remain to be seen if the desired effect is achieved but the government maintain that the initial costs of obtaining a PIP are much lower and will enable small scale developers to "test the water" before committing large amounts of money to a development proposal.
Previously PIPs could only be granted through part 2 of the brownfield land register (being a register compiled by the LPA of previously developed land). From 1st June however a developer can apply to the LPA direct for a PIP for small scale residential development. The provisions governing the new procedures are contained in the Town and Country Planning (Permission in Principle) Order 2017 ("the Order").
A small scale residential development covers sites with less than 10 house and less than 1000 square metres of floor space or less than 1 hectare. There can be an element of non-housing development included and certain developments are exempted or subject to conditions under Article 5B of the Order, such as sites requiring EIA or habitats assessments.
What steps do a Local Planning Authority and an Applicant need to take?
Local Planning Authorities will need to:
- Revise Part 2 of their brownfield land register to contain 3 parts - part 1 being PIPs allocated by the LPA, part 2 being "live" applications for PIPs and part 3 showing the "determined" applications for PIPs.
- Determine applications for PIPs within five weeks.
- Apply the requirements of Article 5B of the Order in relation to exempt development.
- Publicise applications in accordance with Article 5G of the Order giving at least 14 days for representations (and giving notice under Article 5H where railway land is affected)
- Carry out the usual consultation as required under Article 5J and Article 5K and not determine the application for at least 14 days.
- Be aware of the duties to respond to consultation and carry out annual reports in accordance with Article 5N.
- Take into account all representations made and give notice to those persons of their decision.
- Specify in the decision the minimum and maximum net number of dwellings permitted in principle.
- Specify in the decision the scale of any associated non-housing development.
- When issuing a decision give reasons for refusal or details of any direction from the Secretary of State.
- Include a statement in accordance with Article 5T(2) where an application is refused.
An applicant will need to:
- Apply on the prescribed form and comply with the requirements of Article 5D of the Order with the prescribed fee of £402 for each 0.1 of the site area.
- Carry out consultation prior to submitting an application for any development involving wind power under Article 5C.
- Where a non-material change is required to an issued PIP, apply to the LPA on the appropriate form under Article 5U of the Order.
- Where an applicant is unhappy with the LPA's decision, appeal in accordance with the provisions of Article 5V.
- Apply for Technical Details Consent within 3 years of issue of the PIP. Note however that If a PIP is granted by the LPA in Part 2 (1) of their Brownfield Land Register this lasts for 5 years.
A form has been published here.
So, what about the application for Technical Details Consent?
Well, that's another story (with limited guidance in the PPG I might add!) but very briefly the provisions regarding TDC are contained in Section 70 of the Town & Country Planning Act 1990 as amended by the Housing and Planning Act 2016. Applications will need to be made on the standard "full" application form making reference to the PIP (the form available from the Planning Portal is being updated to cover this) and the LPA may grant the TDC subject to conditions in the usual way. Development cannot be carried out until the TDC has been granted.
A reminder on CIL
The Community Infrastructure Levy provisions continue to catch out developers who fail to properly following the requirements and inadvertently commence development. Various decisions last month highlight the penalties for failing to comply and keep evidence of compliance.
One case in particular is a reminder that any demolition works required as part of the development will constitute "commencement" for the purposes of CIL. The appellant acknowledged that demolition works had been carried out but argued that they were only required to enable retaining wall structures to be constructed and did not commence works on the CIL development. Regulation 7(2) provides that "commencement" is the earliest date upon which any material operation is carried out (as defined in Section 56 of the Town & Country Planning Act 1990). The inspector considered commencement had occurred and because the appellant had failed to submit a commencement notice a surcharge could be imposed. The decision is available here and was allocated reference number APP/J4423/L/17/1200151.
The consultation on the draft amended NPPF and reform of developer contributions are closed and we await the government's response (ideally within 12 weeks of the closure date if their own guidance is anything to go by). The adoption date is still expected to be "the summer" so time will tell.
Around the time of the last update another consultation was published in relation to powers for dealing with unauthorised development and unlawful encampments. A link to the consultation is here and the consultation will close on 15th June.
Cases of Interest
The Court of Appeal considered the meaning of "isolated" under paragraph 55 of the current NPPF and held that this meant physically separate or remote from a settlement. A "settlement" being a hamlet or cluster of dwellings. (Braintree District Council v SSCLG 2018 EWCA Civ 610).
The High Court granted an extension of time to consider a claim for judicial review more than five years after the permission in question was issued in R (Thornton Hall Hotel) v Wirral Metropolitan Borough Council  EWHC 560 (Admin).
Following the decision in Forest of Dean District Council v Wright  EWCA Civ 2102 permission has been granted to appeal to the Supreme Court to determine whether a community benefit fund is capable of being a material planning consideration.
Dates for your diary
- 1st June – PIP in force
- 15th June – consultation end date for powers to deal with unauthorised development and unlawful encampments.
If you would like further information or advice on any of the matters considered in this update please contact our Head of Planning, Nikki Fonseka by calling 01603 974860 or email email@example.com
We can assist with a wide range of legal issues relating to planning and highway matters for developers, individuals and public bodies as well as offering a comprehensive service for developers in conjunction with our Commercial Property Team. For more information or to discuss your individual requirements in further detail, contact us by calling 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham and Sheringham offices.
*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.