The basics #9 - “Permission in Principle”
An artist’s rendering of your PiP scheme.
So, are you feeling up to speed on the White Paper (quick summary here, in case you aren’t)? And have we just about got our heads around its idea for Growth Areas? In which adopting a plan = “automatic” planning permission (if you could do with a primer on that, have a look here).
Righto. But, starter for 10: what kind of automatic permission would we actually get in the Growth areas?
The White Paper doesn’t quite say. At §2.31, it talks about “outline planning permission”. But at §3.18 it calls it a “permission in principle”. Does it matter? Aren’t those more or less the same, anyway? They certainly sound similar.
Meanwhile, in the sister consultation on changes to the current system, one of the less news-grabbing proposals (compared to the revised standard method for housing need, anyway, which continues to hoover up the headlines) - is an extension of the “Permission in Principle” regime.
This Government’s clearly interested in “Permissions in Principle”. Indeed, they’re at the heart of both consultations. Which means perhaps it’d be worth us taking 5 minutes to make sure we know what they are.
So. PiPs. What’s happening there? Here’s a quick primer.
It was the balmy summer of 2016. As you may recall, that was a busy time in the news. But - at least as I remember it - by far the biggest headline that year came when Secretary of State Greg Clark brought in the Housing and Planning Act 2016, on almost his last day in the job before handing over to Sajid Javid. That law – among other tasks – amended the Town and Country Planning Act 1990 to create a new creature in UK planning law – a “permission in principle”. A PiP. As if we #planoraks didn't have enough acronyms already.
The next year, some secondary legislation filled out the picture along with new Planning Practice Guidance. Then came important amendments in 2018 (i.e. to allow for PiP applications).
So what was the big idea?
Well, this isn’t the first government which wants to speed up the delivery of new homes. It also isn’t the first to plan to deal with that problem by introducing elements of a “zonal” system.
The idea behind the PiP mechanism was to speed up the process for developing housing-led schemes by (at least in theory) getting the “in principle” matters agreed up front. Which “in principle” matters? Well (again, in theory) all a PiP is supposed to cover is location, uses and the amount of development. That’s it. Location, uses, amount.
Everything else – including planning conditions and s.106 planning obligations – comes later at the “technical details consent” stage. What could be simpler?
How do you get a PiP? At the moment, there are 2 ways. The White Paper may be proposing a 3rd way with its idea about Growth Areas, but at the moment:
The first route to a PiP is to get your land allocated for a certain range of homes in Part 2 of a Brownfield Land Register (under these regulations) – i.e. the part where the local planning authority has decided to allocate your land for residential development [albeit note, as Simon Ricketts says here, very few homes have actually been allocated through this route so far]; or
You can make a PIP application.
What sort of schemes can get PiPs? That may depend on through which of those two routes you get your PiP. So for instance:
It’s got to be housing-led, so 51%+ housing.
If you’re being allocated in the Brownfield Register, well – your site has to be… brownfield / previously developed land as defined by the NPPF. Not so for PiP applications which can be on greenfield sites too.
For the allocation in the Brownfield Register, your site needs to be suitable, available and achievable for residential development – which means it either needs to be allocated already in a local development document, or be – in the local planning authority’s opinion – appropriate for residential development having regard to adverse impacts e.g. on the environment and consultation responses.
What about the size of scheme? Under the allocation route: 0.25 Ha plus and at least 5 dwellings. No upper limit. But again, a different ball game for PiP applications, which can’t (yet) be major development, so max 9 units, under 1 hectare. Which means, at the moment anyway, that the use of the PiP application route is heavily curtailed. As I note below, that’s something the Government is thinking about changing quite substantially.
What does your PiP application have to do – it has to specify the minimum and maximum net number of dwellings which are, in principle, permitted.
Other limitations which apply to both ways of getting PiP:
(a) It cannot cover development which needs an Environmental Impact Assessment; and
(b) It cannot cover schemes which are likely to have any significant effect on European habitats sites.
What’s the procedure for applications – it’s quick:
14 days’ publicity / consultation periods;
Overall, a decision has to be made within 5 weeks of a valid application.
Fair enough, you might think, for schemes of up to 9 homes. But what if that limit was increased? Well, indeed! More on that in a sec.
The normal duration of a PiP granted by application is 3 years, and by allocation it’s 5 years.
Before your PiP goes pop, you’ll need a technical details consent to get a planning permission you can actually build.
What does that mean? Well it covers everything else. Yes, that includes your typical reserved matters - i.e. full details of layout, scale, landscaping, appearance and access. But it goes an awful further than a standard reserved matters application. Because remember – unlike outline permissions – your PiP has no conditioned parameter plans or illustrative masterplans or s.106 agreement or anything else. So your technical details consent starts from a blank page.
Which means you’ll often have an awful lot of work to do – and some of that may be very contentious and difficult work – to convert your PiP into a full planning permission you can actually build.
A couple of headline issues with the current regime:
Mission-creep. Albeit the idea of a PiP is to front-load the big “in principle” decision and leave details for later, sometimes it’s the detailed stuff which tells you whether a scheme’s likely to be acceptable. Some local planning authorities seek detailed work on matters like ecology, heritage, highways and landscape etc to support PiP applications which can raise issues which go rather beyond the limited scope of in-principle matters.
Uncertainty. Given the number and scope of technical details, including the sometimes all-important issue of affordable housing contributions, it may happen that at the technical details stage matters emerge which make a scheme undeliverable (e.g. as a result of any number of issues – drainage, access, detailed layout… you name it). Given those uncertainties, how much is a PiP really worth on its own? And in what circumstances would you prefer to have one over, say, an outline planning permission? A blank page permission may be flexible. But it may tell you very little about what might actually be acceptable or deliverable on your site.
And note, as Simon Ricketts says here, albeit there are no stats for PiP applications, we can count the appeals. And of the 55 PiP appeals so far, only 9 have been allowed. How does a 16% succees rate sound to you? And there’s no doubt part of the explanation for these many failures is the inability of applicants to bring forward benefits or plans to mitigate harms through e.g. s.106 obligations or planning conditions. It’s playing the game with one hand tied behind your back.
So what does the Government want to do with this regime? Expand it, of course. As part of its aim to support (in particular) SMEs, the changes to the current system consultation proposes bumping the limit for PiP applications up to 150 units. Which might sound exciting. On the other hand, it doesn’t quite solve the issues about mission creep and uncertainty in the current system I touch on above. And a 5 week determination period for schemes of that scale (with 14 day publicity / consultation periods) may be… what’s the word… challenging. 😬.
If you’ve an hour spare, and would like a more detailed canter through the proposals for PiPs in this consultation and in the White Paper from (present company excepted) some folks who actually know what they’re talking about, have a look here at this week’s banterful discussion with me and the good folks at Town Legal.
And in the meantime, don’t forget, #planoraks. You have until 1st October 2020 to get in your responses on PiP reform! Plus, you know, the small matter of reforms to the standard method. That may be worth saying something about too! Nothing too controversial, then.
Stay well, #planoraks.
