Brownfield Policy Now

1. Brownfield Policy Now Jon Reeds

2. Brownfield Policy Then Planning Policy Statement 3, November 2006:- “The priority for development should be previously developed land, in particular vacant and derelict sites and buildings.” “A key objective is that local planning authorities should continue to make effective use of land by reusing land that has been previously developed.” “The national annual target is that at least 60% of new housing should be provided on previously developed land.” “At the regional level, regional spatial strategies should set a target for the proportion of housing development that will be on previously-developed land over the plan period.” “Local development documents should include a local previously developed land target and trajectory (having regard to the national and regional previously-developed land target in the regional spatial strategy) and strategies for bringing previously-developed land into housing use.”

3. Political Commitment “We are making the most of every single square inch of brownfield land.” Eric Pickles, March 2013 "In the UK and England at the moment we've got about 9% of land developed. All we need to do is build on another 2-3% of land and we'll have solved a housing problem.” Nick Boles, November 2012

4. Brownfield Policy – Devolved Administrations “Previously developed (or brownfield) land should, wherever possible, be used in preference to greenfield sites, particularly those of high agricultural or ecological value.” Planning Policy Wales Edition 9, November 2016 “The [Regional Development Strategy] recognises that there are significant opportunities for new housing on appropriate vacant and underutilized land, and sets a regional target of 60% of new housing to be located in appropriate ‘brownfield’ sites within the footprints of settlements greater than 5,000 population.” Strategic Planning Policy Statement for Northern Ireland, September 2015 “Planning has an important role to play in finding new and beneficial uses for previously used land including, in the right circumstances, ‘green’ end uses. A planned approach will continue to deliver development in the parts of our city regions where there is a continuing need for regeneration.” Scotland’s Third National Planning Framework, June 2014

5. Brownfield Policy - England “Planning policies and decisions should encourage the effective use of land by reusing land that has been previously developed (brownfield land), provided that it is not of high environmental value.” National Planning Policy Framework, March 2012 “We must make as much use as possible of previously-developed (‘brownfield’) land for homes – so that this resource is put to productive use, to support the regeneration of our cities, towns and villages, to support economic growth and to limit the pressure on the countryside. The Government is already pursuing a number of reforms…” Housing White Paper, February 2017

6. Recent Brownfield Policy Proposals in English Planning - 1 Local Development Orders for Housing Development on Brownfield Land, August 2014 Invitation to local planning authorities to bid for funds for brownfield housing local development orders. Building More Homes on Brownfield Land, January 2015 Local planning authorities to identify brownfield housing land which is “deliverable”, “free of constraint”, “capable of development” and “capable of supporting 5 or more dwellings”; LPAs to include a “small subset” of its objective assessment of housing land on their websites each year with details of some brownfield sites; Data to be reviewed annually; LPAs failing to make good progress in getting local development orders in place on “suitable brownfield land” – 90% by 2020 - to be designated as “under-performing” and designation from 2017 if they have failed to make “sufficient progress”; or LPAs failing to meet DCLG requirements on progress would be designated as lacking a “five-year supply” of housing land and the so-called “presumption in favour of sustainable development” would apply.

7. Recent Brownfield Policy Proposals in English Planning - 2 National Planning Policy: Consultation on Proposed Changes, December 2015 • Increased residential density around “commuter hubs”; • NPPF to be amended to give “substantial weight” to brownfield housing applications; • “Unviable or underused” commercial and employment land releases for starter homes under the exception policy • Exception policy for starter homes extended to unviable or underused brownfield retail, leisure and other non-residential land. • Easing restrictions on brownfield development in green belts. Housing and Planning Act, May 2016 • LPAs required to publish and maintain brownfield housing registers.

8. Recent Brownfield Policy Proposals in English Planning - 3 Housing White Paper, February 2017 • Greater weight in NPPF to using suitable brownfield land within settlements for homes; • Possible additional powers of “ransom strips”; • Full examination of brownfield sites in local plans before green belt land is released; • Higher residential densities in urban areas; • Releasing long vacant brownfield employment land for housing; • Extending the starter home exception policy to other types of brownfield land like leisure centres and shops; • Allowing development of starter hommes on green belt brownfield sites. • £1.2bn Starter Home Land Fund made available to brownfield developments • The £3bn Home Building Fund to have “an emphasis on supporting developments on brownfield land” • Higher densities around “commuter hubs”, though no definition of the term. It’s supposed to be implemented in the New Year.

9. Recent Brownfield Policy Proposals in English Planning - 4 Planning for the Right Homes in the Right Places: Consultation Proposals, September 2017 • Local plans should identify infrastructure and affordable home requirements. • Viability should not be tested again at planning permission stage.

10. Brownfield Policy Now Brownfield land registers. Permission-in-principle.

11. Brownfield Land Registers • First proposed in 2015 • LPAs will be required to have registers covering their local plan area under the Planning and Compulsory Purchase Act 2004; • Intended to make local planning authorities indicate which previously developed sites are suitable for housing via permission-in-principle • To improve quality and consistency of data held by LPAs; • To provide certainty for developers and communities; • To encourage investment in local areas.

12. Registers Pilot Scheme - 2016 • Ran in 2016; • Pilot registers prepared by 73 English local planning authorities; • LPAs received £10,000 each to prepare;

13. Pilot Scheme – Experiences 1 Swindon BC’s Brownfield Register Pilot’s published methodology reminded users, inter alia, that:- • It did not allocate sites for development – that’s local and neighbourhood plans; • An entry does not necessarily mean planning consent would be granted; • Exclusion does not preclude consent; • Site boundaries do not determine planning application boundaries; • Estimates of numbers of dwellings do not preclude applications with different densities or that implied densities are appropriate to the site; • The register is a snapshot on a particular date. • Swindon’s pilot register contained 73 sites, 56 of which were <1ha and 41 <0.25ha. Milton Keynes’ Brownfield Register contained 50 sites, 36 <1ha and 11 <0.25ha.

14. Pilot Scheme Experiences - 2 • A survey by WSP of 17 pilot registers in South East England found:- • 773 sites registered, with a potential for 44,747 homes; • 63% already had planning approval; • One register had 45 sites with 1,325 units, but 35 were <1ha, 25 were <0.25ha and 35 already had planning consent.

15. Approved Brownfield Land Register Scheme • Town and Country Planning (Brownfield Land Register) Regulations 2017 came into force in April 2017; • English LPAs must prepare, maintain and publish registers by 31 December 2017; • DCLG: “the timescale is realistic” as LPAs already collect and review information on housing land as part of SHLAs, to which the process is aligned “as far as possible”; • LPAs should consider how to integrate SHLA data into registers; • LPAs may call for sites etc.; • Registers will have two parts; • Part 1 comprises all brownfield sites the LPA considers appropriate for residential development, following “appropriate” consultations; • Part 1 sites will have either “extant full planning permission, outline planning permission and permission-in-principle as well as sites without planning permission”; • “Part 2 is… a subset of Part 1 and will include only those sites for which have permission-in-principle has been granted” [Frequently Asked Questions, April 2017]; • “Local planning authorities can enter suitable sites in Part 2 of their brownfield land registers… which will trigger a grant of permission-in-principle [Planning Practice Guidance, July 2017] • Registers must be updated at least once a year; • Statutory requirements on consultation and information.

16. Part 1 Registers • Brownfield land defined as in Annex 2 of the National Planning Policy Framework; • LPAs may consult and must take account of representations; • LPAs must have regard to development plans and statutory guidance; • Sites must be at least 0.25ha and capable of supporting 5 or more homes (Reg.4); but • Sites don’t actually have to meet the 0.25ha and 5 home requirement (Reg.5(3)); • Sites must be suitable for residential development; • “Suitable” means allocated in a development plan, having residential planning permission or PiP or the LPA considers it suitable for homes after consideration of adverse environmental impacts or representations; • Sites must be available for residential development; • “Available” means owner has expressed intention to sell or develop the land, or developer has expressed intention to develop, or there are no “issues” around land ownership or other legal impediments • Residential development of the land must be “achievable”; • Achievable means development is likely within 15 years.

17. Part 2 Registers • Public notice must precede proposals to enter sites; • LPA must maintain explanatory web pages; • Railway infrastructure managers must be notified of proposals to include sites within 10m of railway land; • Parish councils or neighbourhood forums must be informed of proposals if they ask; • Representations must be taken into account before entry; • County councils must be consulted in two-tier areas and the mayor in London; • Entries must specify minimum and maximum numbers of homes; • Outline or full planning consent can be granted for any site on Part 1 or Part 2.

18. Windfall Sites Windfall sites, i.e. sites not specifically identified in local plans, should be considered as part of the annual review. Registers are intended to complement the NPPF requirements on 5-year supplies. Trans-Boundary Sites Trans-boundary sites may be included if required procedures have been undertaken and LPAs may work together to assess amount of development on the sites. Each LPA will enter its own part of the site.

19. And remember… “Greenfield land is not appropriate for inclusion in a brownfield land register. Where a potential site includes greenfield land within the curtilage, local planning authorities should consider whether the site falls within the definition of previously developed (brownfield) land in the National Planning Policy Framework. Where it is unclear whether the whole site is previously developed land, only the brownfield part of the site should be included in Part 1 of the register and considered for permission in principle.” [Planning Practice Guidance] “’Previously developed land’… excludes… land that was previously-developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape in the process of time.” [National Planning Policy Framework, Annex 2]

20. Restrictions on Brownfield Registers • LPAs must take account of NPPF restrictions for protecting the built, natural and historic environment. “It also requires authorities to ensure that a residential use is appropriate for the location and that a site can be made suitable for its new use.” • Sites cannot be entered on to Part 2 registers where they fall under Schedule 1 of the EIA Regulations 2011; • Sites which fall under Schedule 2 of the EIA Regulations 2011 can only be entered on to Part 2 registers subject to certain conditions including screening opinions’; • Preparation of registers may require strategic environmental assessment; • Entries on Part 2 registers can only be amended by removing it completely and amending relevant information in the Part 1 register, subject to procedures, but Permission-in-Principle or technical details consent remain unless they expire or are revoked.

21. Permission-in-Principle • An alternative route to residential planning consent which separates matters of principle from technical details; • Two-stage process; • PiP is obtained by entering suitable sites into Part 2 registers; • After secondary legislation is introduced, PiP will be obtainable via local plan site allocation process or by an application for non-major development; • Residential use only has to occupy “the majority of the floorspace”; • Non-residential uses can include a “small proportion” of retail, office or community space; • Non-residential uses cannot include mineral extraction, EIA Schedule 1 development (or Schedule 2 where positively screened) or development prohibited under habitats protection.

22. Technical Details Consent • Following PiP, technical details consent must be applied for and obtained before development; • Granting of TDC has effect of granting planning consent, so requirements such as protected species or listed buildings must be considered; • Identification that a proposal is subject to EIA at TDC stage does not invalidate PiP, but EIA requirements must then be met; • Separate TDCs are required where a site has more than one PiP. • TDCs must specify all matters relating to full planning permission even where a development has multiple stages; • Planning conditions and planning obligations may be attached to a TDC; • Refusal of a TDC does not affect PiP.

23. Restrictions on Permission-in-Principle • Existing local or neighbourhood plan site allocations do not gain PiP; • PiP can only apply to an identified site, it cannot be area-wide; • Not all relevant brownfield sites on registers need be given PiP; other routes like outline consent are still usable; • PiP decisions must accord with the NPPF; • PiPs should only cover location, land use and amount of development; • Default durations of PiPs are five years and TDC applications must be determined within that time; • TDC applications must be determined in five weeks for minor developments and ten weeks for major; • Community infrastructure levy may apply to PiP permissions once TDC is granted; • No right of appeal when a site is not entered on a Part 2 register as applicants may still apply for planning permission; • Appeals against non-determination, refusal or conditions in TDCs are allowed; • Third-party appeals against TDCs are not allowed; • Removal of sites from registers does not revoke PiP and LPAs do have powers to modify or revoke – in principle, in exceptional circumstances – and compensation may be payable; • The communities secretary cannot call in Part 2 entries or PiP but can call in TDCs.

24. So will Registers and PiP Facilitate Brownfield Development? “The requirements for a valid technical details consent application are the same as those for an application for full planning permission.” National Planning Practice Guidance “The decision [to grant TDC] must be made in accordance with relevant policies in the development plan unless there are material considerations, such as those in the National Planning Policy Framework and national guidance, which indicate otherwise. “Local planning authorities should draw on relevant existing information sources and tools to support decisions on whether a grant of permission in principle is appropriate. These may include local sources of evidence e.g. the development plan evidence base, historic environment records or landscape character assessments and external information sources and tools e.g. advice published by statutory consultees.” National Planning Practice Guidance “Local planning authorities should take a proportionate approach to any information they request in support of applications for technical details consent.” National Planning Practice Guidance When entering sites on registers, LPAs must have regard to the development plan, national policies and advice and any guidance issued by the secretary of state, PLUS criteria in Section 4 of the new regulations.

25. “Suitability”, “Availability” and “Achievability” So, as well as meeting NPPF requirements which include viability and deliverability, brownfield developments approved via the register/PiP/TDC route must meet new “suitability”, “availability” and “achievability” tests which include:- • whether the site is likely to take place within 15 years, in the LPA’s opinion; • whether the owner has expressed a recent intention to sell or develop; or • whether a developer has expressed a recent intention to develop; or • the LPA judges there are no ownership or legal impediments preventing development. Regulation 4 Brownfield sites already face deterrents to development like the cost of reclamation and remediation when compared to greenfield. Now they also need to be included on a brownfield register. Does this add a further deterrent to brownfield sites not on registers?

26. High Environmental Value “Planning should… encourage the effective use of land by reusing land that has been previously developed (brownfield land), provided that it is not of high environmental value.” NPPF, Paragraph 17 Wildlife and Countryside Link: Guidance on Permission in Principle and Brownfield Registers of Land [September 2017]:- • Purports to define “high environmental value”; • Link definition includes all sites containing priority habitats, nature conservation designations, local wildlife sites and any sites which would “adversely impact on irreplaceable habitats”; • Priority sites include “open mosaic habitat” which can be applied to a very wide range of brownfield sites; • Link guidelines have no statutory value. • Ignored representations from Smart Growth UK, Environmental Protection UK etc. in 2014 when it was preparing its original guidelines.

27. A Better Way • Smart Growth UK – an informal coalition of organisations and individuals formed in 2008; • Inspired by the Smart Growth movement in North America formed in the 1990s in response to hypersprawl, inner-city decline and car-dependency; • Holistic and inter-dependent approach, at odds with the “garden city”philosophy which has been UK default mode for more than 100 years; • Compact development with appropriate densities; • Active travel and public transport; • Anti-sprawl and brownfield-first; • Vibrant towns and cities through active place-making; • Protection of heritage and biodiversity.

28. Garden Towns and Villages – Unwanted, Unnecessary and Unsustainable North Essex Garden Communities Charter, 2016 The recent Smart Growth UK report suggested a very different set of policies…

29. Regional policy is urgently needed The ever-growing imbalance between the economically successful parts of the UK and those that are struggling shows we need to direct new economic activity away from those areas that are doing well to those that are not. And, coupled with that, we need to abandon the “one-size-fits-all” approach to forcing unrealistic housing numbers on local authorities, most urgently for places that don’t need it.

30. House building need should be genuinely objectively assessed At the moment too many people are aware that commercial appetite for development makes up a substantial amount of the process and that requirements on deliverability and viability militate against brownfield development.

31. Brownfield-first policies for housing and employment need to be reimposed Given the relative commercial costs of building on brownfield and greenfield, the absence of a brownfield-first policy is, effectively, a greenfield-first policy. And there is much more brownfield land of all types than those with a vested interest like to suggest.

32. House building densities need to rise Garden city principles have squandered our scarce building land for a century now. Higher densities such as those traditionally used in cities, towns and villages need not involve high-rise but they do facilitate provision of facilities, town centres, active travel, public transport and community. Very low-densities don’t.

33. Transit-oriented development should be the norm for major developments, not the exception Major development should only be contemplated where it is situated on major public transport networks, usually rail-based. This needs more than simply locating them beside, or near, a single railway station. The public transport should be in place well before the development is completed.

34. Public investment should be switched from supporting sprawl into sustainable development Spending should be diverted from the costly infrastructure needed for greenfield development and the road building programme into urban regeneration and sustainable transport, particularly urban rail.

35. This is not a sustainable city

36. This, by-and-large, was

37. What we need is… BROWNFIELD-FIRST

38. References Brownfield registers and permission in principle: frequently asked questions,April 2017 https://www.gov.uk/government/publications/brownfield-registers-and-permission-in-principle/brownfield-registers-and-permission-in-principle-frequently-asked-questions The Town and Country Planning (Brownfield Land Register) Regulations 2017 http://www.legislation.gov.uk/uksi/2017/403/made Brownfield Land Registers – Planning Practice Guidance, July 2017 https://www.gov.uk/guidance/brownfield-land-registers Permission in Principle – Planning Practice Guidance, July 2017 https://www.gov.uk/guidance/permission-in-principle Swindon BC Pilot Register Documents https://www.swindon.gov.uk/downloads/download/198/brownfield_register WSP Survey of South Eastern Pilot Registers http://www.wsp-pb.com/en/WSP-UK/Who-we-are/Newsroom/features/Register-of-interest--the-future-of-brownfield-sites/ http://www.smartgrowthuk.org/ 9 November 2017