Planning matters

UPDATE: The first of the Regulations relating to the new Act have now been made and came into force on 26 May. The Housing and Planning Act 2016 (Commencement No. 1) Regulations 2016 have brought into force s145(5) of the Act; this section inserts a new s21A into the Planning and Compulsory Purchase Act 2004, after s21, giving the Secretary of State the power to issue a temporary direction pending the possible use of other local plan-making intervention powers. See below for more details.

• Starter homes regulations under section 2, 3(6), 4 or 5 (see s214 of the Act)
• Planning freedoms regulations under section 154(1) (see s214 of the Act)
• Pilot schemes for the processing of planning applications by alternative providers regulations under s161 that make provision of the kind referred to in s161(3), (5), (6) or (12)(b), s163 or s164 (see s214 of the Act)
• Regulations altering the standard time period that permissions in principle will be in effect for, before expiring[1] (an amendment to Section 333 to the Town and Country Planning Act 1990, to be inserted by s150 of the Act)
• Regulations imposing restrictions or conditions on the enforceability of planning obligations relating to affordable housing, or prescribed descriptions of affordable housing (regulations under s106ZB, to be inserted by s159 of the Act)
• A statutory instrument designating an Urban Development Corporation or Urban Development Area (amendments to the Local Government, Planning and Land Act 1980, inserted by ss166 and 167 of the Act (replace current similar wording, and allows certain hybrid instruments to proceed as if they were not hybrid – i.e. via the affirmative procedure))
• Regulations relating to the designation of New Towns (an amendment to the New Towns Act 1981 inserted by s169)
• Regulations directing a local authority to take steps to dispose of its interest in land (an amendment to s98 of the Local Government, Planning and Land Act 1980 to be inserted by s209 of the Act)

[1] A PIP granted by a development order ceases to have effect five years after it come into effect, or such longer or shorter period directed by the LPA, and a PIP granted by a LPA ceases to have effect three years after it comes into effect, according to s59A(7)(a) and s59A(8)(a) of the Town and Country Planning Act 1990, once inserted by s150 of the Act.

One of the fundamental changes to the planning regime included in the Housing and Planning Act 2016 (HPA 2016) is ‘Permission in principle’ or ‘PIP’ (s150).

• The LPA (or SoS) may grant by development order permission in principle for housing-led development either on application to the LPA or through qualifying documents (QDs): development plan documents, neighbourhood plans or the brownfield register (either when they take effect, or are revised)
• A PIP takes effect when the QD identifying the land is adopted/made/published/revised
• A development order may specify the date that the PIP takes effect
• A PIP granted by a development order ceases to have effect five years after it come into effect, or such longer or shorter period directed by the LPA. It will not necessarily cease if a QD no longer has effect or is revised.  A PIP granted by a LPA ceases to have effect three years after it comes into effect.  The SoS may amend the standard time limits by regulations (which must be approved by each House of Parliament).
• The LPA must determine the technical details consent in accordance with the PIP (i.e. the in principle matters cannot be re-opened), unless the PIP has been in force for longer than the period specified in the Order (i.e. it has expired), or unless there has been a ‘material change’ in circumstances
• TDC should address all further matters to be considered to enable planning permission – there should no further ‘reserved matters’
• LPAs should have regard to guidance (see below) issued by the SoS relating to PIPs
• An extant PIP on a site will not preclude the submission of a planning application

• The LPA must keep a register of information related to PIPs granted by the order

• That location, uses and amount of residential development should be the only ‘in principle matters’ determined at PIP stage
• A minimum and maximum amount of residential development for PIP
• That allocation will be by future (as opposed to existing) neighborhood and/or local plans
• The circumstances where a PIP for EIA development, or development affected by the Habitats Directive may or may not be granted
• Consultation and application submission requirements, and determination period
• TDC application must be submitted as a single application and not broken into parts
• Conditions may be attached to the TDC, which may also be subject to planning obligations and the Community Infrastructure Levy
• Where a PIP or TDC is refused there will be a right of appeal

• set out criteria the land must meet for inclusion, include a part which lists site, and a part which grants a PIP, that in preparing the register the LPA must have regard to matters such as the development plan and national policy and advice, allow some local authority discretion as to which land to exclude, require consultation

• Section 150 of the Housing and Planning Act 2016 ‘Permission in principle for development of land’ inserts new ss58A and 59A, and new subsections to s70, into the Town and Country Planning Act 1990. Section 150 is due to commence on 12 July, 2016.
• The government may require registers of land on a statutory basis, following the commencement of s151 on 12 May 2016. However, regulations specifying the nature of those registers, in this case brownfield register, are also necessary.
• Amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2015 (the provisions refer to a development order) are necessary to introduce the procedure for making PIPs via application, or the brownfield register/ QDs.
• We anticipate that regulations relating to PIPs and the brownfield registers will be laid by the end of 2016. Local authorities will probably be considering the sites that could form part of the register, as part of their plan making function (we do not think this will be limited to those involved in the brownfield register pilot)
• The timescale for allocation of PIPs via QDs is, of course, related to the timescale for adoption/making/publication/revision of those documents (and likely to be subject of transitional arrangements).

Further blogs in this series cover starter homes, planning provisions, and the Act’s commencement; further regulations on commencement are also covered.