Planning matters

Update 6 August 2020: The Government is consulting on extending permission in principle (PiP) on application to all forms of housing-led development, with no cap on the amount of commercial floorspace within a given scheme. Large sites capable of delivering more than 150 dwellings, of more than 5 hectares or other potential EIA development would not be able to seek PiP unless the application were accompanied by a screening opinion concluding the proposal was not EIA development. Similarly, where there is a probability or risk that the proposal is likely to have a significant effect on a European site, a PiP application would have to be accompanied by an appropriate assessment demonstrating significant impact on the site were unlikely. The fees set out below are proposed to be revised downwards for larger sites to make permission in principle more attractive alternative to outline planning permission.

Subject to the outcome of the consultation, the Government proposes that regulations expanding the scope of PiP on application will be in force by the end of the year.

For more details, please see this guide.

Update: 15 June 2018: The Government has published updated guidance on permission in principle – notably the application procedures for PiP and technical details consent.  The complete up-to-date guidance is available here.

On 1 June 2018 a new route for obtaining planning permission via an application will become available for most small, housing-led developments: an application for permission in principle (PIP) followed by an application for technical details consent (TDC).

On that day, the Town and Country Planning (Permission in Principle) (Amendment) Order 2017(‘PIP Amendment Order’) will come into force. And by that time, the PIP and TDC route will have been in primary legislation for over two years, and PIP via local authority brownfield land registers will have been available for several months, so one would hope it will not be a completely new concept for the property sector – and particularly small builders - to grapple with and consider using. Notwithstanding this hoped-for familiarity with PIPs, the new application route is one of the most significant changes to the way planning permission may be achieved since outline planning applications were introduced almost 60 years ago.

Our May 2016 Guide to PIPsprovides the background, and our subsequent March 2017 Guide(updated in January 2018) explains how PIPs can be granted via brownfield land registers.

Of the three routes to PIP that are provided by s59A of the Town and Country Planning Act 1990, only one is already available a present: permission in principle granted via Part 2 of the brownfield land register.

The three routes to PIP will be mutually exclusive; i.e. PIP on application will be available to any site that might accommodate minor housing-led development, provided the development is not habitats development, EIA development or major development (as defined in the PIP Amendment Order). It is not the case that it will be available only to sites in Part 1 of a brownfield land register (sites in Part 2 already have PIP), or (in future) to sites granted PIP via a local plan allocation or a neighbourhood plan allocation (these too will already have PIP).

Applications for PIP for minor developments (of nine residential units or less, with less than 1000sqm of commercial floorspace, and/or on a site of less than 1ha), the ‘main purpose’ of which is housing development, may be submitted to local planning authorities (LPAs) from 1 June 2018 onwards. ‘Main purpose’ is not defined in the amendment Order; perhaps guidance will indicate that it will relate to the site area proposed for housing, as compared to other proposed uses. 

Applications for PIP cannot be made for major, ‘habitats’, householder, or Schedule 1 EIA development. PIP can be granted for Schedule 2 EIA development, providing that a screening opinion that the proposal is not EIA development has been adopted or made.

The premise for PIP via the application route is slightly unusual; essentially it is presented as a cheaper way for those taking a chance on smaller (more risky?) sites to establish whether a site is suitable for new homes, or not. According to the Explanatory Memorandum (EM) to the Amendment Order 2017:

Pre-application advice is the current process for a developer trying to reduce planning risk, which is effectively the benefit PIP provides. Pre-application advice in respect of a PIP on application would add another layer of costs, and does not appear to be envisaged by Government in the estimates above.

The Government will provide guidance for PIP applications, including the information to be submitted with an application. And the EM explains that LPAs will be supported by an ‘active programme of continuous engagement to coincide with the coming into force of the Order’.

The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2017 - in force from 17 January 2018 – introduce a fee for PIP of £402 per 0.1 of a hectare. This fee will apply to PIP proposals falling within Categories 1-3 of the amendment Fee Regulations: 1. erection of houses; 2. erection of buildings (other than houses, agricultural buildings, glasshouses, plant or machinery and ‘other operations’); and 3. erection of agricultural buildings. It is not clear why the Fee Regulations refer only to these three categories, and why material change of use in particular (categories 11, 12 and 13) is not directly referred to, given that PIP may be sought for a change of use. The fee for non-material amendments to a PIP or TDC is/will be £195.

The fee exemptions that will apply to a second application for PIP relating to development on the same site as a first application, and following withdrawal of an application or refusal, are very similar to the exemptions of this type that apply to planning and reserved matters approval applications (see Fee Regulations 8 and 9). An exemption might apply to a TDC application where both the first and second applications were TDC applications (i.e. not to a TDC application that follows the withdrawal or refusal of an application for planning permission that was not a TDC application).

The Planning Guarantee of a 26 week determination period (see Fee Regulation 9A) will apply to PIP on application and TDC.

An application for PIP will have to be made on a form published by the Secretary of State (or a form to substantially the same effect). If a decision is not made within 5 weeks of receipt of a valid application, and no extension of time has been agreed, the applicant may appeal to the Secretary of State for non-determination.

We can see no reason why from 1 June this year an application for PIP could not be submitted in respect of a site, or part of a site that is listed in Part 1 of a brownfield land register, and for a different range of units/development to that described in Part 1, providing that all the requirements on site size, number of units etc are met. There will be a right of appeal against refusal of an application for a PIP (but not for refusal to grant PIP via brownfield land register, or via a development plan allocation) (s78(1)(aa)).

Once a PIP has been granted, it ‘ceases to have effect’ after three years, unless a longer or shorter time limit is directed on the decision notice. TDC relating to the proposed development must be granted prior to the expiry of the PIP and must be determined in accordance with the PIP unless three years have passed since the PIP came into effect and material circumstances have changed since that time. A TDC will be subject to a standard time limit of three years (as per s91 of the Town and Country Planning Act 1990, as amended), unless a longer or shorter period is imposed by the LPA.

As noted above, a non-material amendment may be sought to a PIP or TDC. A minor material amendment, achieved via a s73 application, is possible for a TDC, because it is a planning permission. A PIP is not a planning permission (it is the stage before planning permission), and therefore a s73 planning application may not be made (s73 applies ‘to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted’). 

In our view, Pressland v Hammersmith and Fulham LBC (2016), which confirmed the scope of s73, does not assist. In Pressland, it was concluded that conditions attached to a planning permission can be amended however that planning permission was achieved, as can conditions attached to approvals required by a condition of planning permission. Any conditions attached to a PIP will be conditions required of a planning permission i.e. for requirements at TDC application stage.

The PIP Amendment Order was originally intended to come into force on the same day as the amendment Fee Regulations, “so that LPAs can charge a fee for PIP applications” (see footnote 1 on page 9 of the Explanatory Memorandum of the draft amendment Fee Regulations). The “active programme of continuous engagement” referred to in the EM to the made Order is probably part of the reason for a delay. Hopefully it is a delay that will initiate discussion and then lead to clarity for all parties on PIP application procedure and process, ready for 1 June.