The Big Shift in The Housing Bill To a Zoning and Subdivision System – not Just Greenfield

In this post ill look at one key aspect of the recently published Housing and Planning Bill 2015-2016 – the single stage permission concept, rather than every planning related clause.

As the explanatory notes set out

‘Local registers of land and permission in principle – creating a duty for local authorities to hold a register of various types of land, with the intention of creating a register of brownfield land to facilitate unlocking land to build new homes; and giving housing sites identified in the brownfield register, local and neighbourhood plans planning permission in principle’

But is this what the face of the Bill proposes?

No section 102 ‘Permission in principle for development of land’ has no restriction to brownfield land, a policy distinction not a legal one’ let alone to land on a register.  This is a political ploy, the power enables permission in principle to be granted for any land including Greenfield sites.

The key is the new section 59A to be added to the 1990 Act

Development orders: permission in principle

(1)A development order may either—

(a)itself grant permission in principle, in relation to land in
England that is allocated for development in a qualifying
document (whether or not in existence when the order is made)
for development of a prescribed description; or

(b)provide for the granting by a local planning authority in
England, on application to the authority in accordance with the
provisions of the order, of permission in principle for
development of a prescribed description.

Note the two routes, route B seems pointless, merely letting people know they can apply for permission in principle.  routea is the key one, granting permision if it is allocated for development in a ‘qualifying document’

What is a ‘qualifying document’

See section 59A2

  • “prescribed” means prescribed in a development order;

  • “qualifying document” means a plan, register or other document,
    as it has effect from time to time, which—

    (a)is made, maintained or adopted by a local planning
    authority,
    (b) is of a prescribed description,
    (c) indicates that the land in question is allocated for
    development for the purposes of this section, and

    Housing and Planning Bill

    (d) contains prescribed particulars in relation to the land
    allocated and the kind of development for which it is
    allocated.

And see 59A(4)

Permission in principle granted by a development order—

(a)takes effect when the qualifying document is adopted or made
by the local planning authority or (if later) when the qualifying
document is revised so as to allocate the land in question for
development;

(b)is not brought to an end by the qualifying document ceasing to
have effect or being revised, unless the order provides
otherwise.

Note that land can qualify either  through being allocated in a development plan (including a neighbourhood plan) – and this can include greenfield sites – or through being in a qualifying document which allocates the land.

However under current legislation only a development plan can allocate land.  The 1990 act is clear about that.  This is where the new section 14A (tpo the 2004 act) comes in setting up registers of qualifying land.

(1) The Secretary of State may make regulations requiring a local planning
authority in England to prepare, maintain and publish a register of land
within (or partly within) the authority’s area which—

(a)is of a prescribed description, or

(b)satisfies prescribed criteria.

See also subsection

In exercising their functions under the regulations, a local planning
authority must have regard to—

(a)the development plan;

(b)national policies and advice;

(c)any guidance issued by the Secretary of State for the purposes
of the regulations.

This restricts an LPA granting permission in principle to site contrary to the development plan.  The enabling clause however simply enables them to set up the register.  I have doubts whether by itself it enables them to allocate land in a development plan when the plan itself is silent about the future use of the land – as most plans are on brownfield sites.  That would require much more fundamental revision of the 1990 act.

Schedule 6 has a number of minor and consequential amendments makes many changes to the 1990 act, nut these simply add ‘or permission in principle’ to the many development management and compensation clauses.

 There is no amendment to section 17(4) of the 2004 Act

The local development documents must (taken as a whole) set out the authority’s policies (however expressed) relating to the development and use of land in their area.

It is an open and debatable question whether the Housing and Planning Bill is sufficient to enable allocation of land.

So far as an LPA allocates qualifying land allocated within a development plan they will be safe from SEA, consultation duty etc. challenges.  If it is not however they run major risks.

Surprisingly their is no restrictive clauses on allocation of land covered by the habitats directive, as their is with local development orders.  This is a major lacuna.  It cant simply be assumed this is covered by a plan allocation that may or may not exist.  I hope this gap is plugged at report stage.  There also seems to be a gap in relation to EIA, though this can simply be plugged by amending secondary legislation.

There is also a clause 104 allowing conditions to be granted to development orders for development and not just change of use.  This is crucial and will also make LDOs much simpler.  You will no longer for example have to specify every last thing, such as building height, in a scheme.  This is a key lesson from zoning and subdivision schemes abroad where conditional consent on rezoning is a key tool.

Further study is needed on whether the consequential provisions fully cover S106, CIL etc.  If not LPAs can simply go down the clause (b) application route and applicants can submit applications with unilateral undertakings, duplicating the ‘rezoning by contract’procedure in zoning and subdivision  jurisdictions.

The final step once permission in principle is granted is approval of  ”technical details consent” whis is exactly the same as reserved matters.

A reall opportuinity for reform has been missed here.  It could have been used to fully duplicate a zoning and subdivision based system, by for example use of terms such as ‘road layout, ‘plot subdivision’, ínfrastructure networks’, ‘General Form and Development Bulk’, ‘General Landscape Structure’and ‘Detailed buildings design’ and ‘detailed landscape design’.  The current reserved matters dont really easily relate to the stages a masterplan goes through and dont lend themselves to granting of ‘masterplan consent’for a scheme at different stages, concept, schematic and detailed.

Overall the section is a bit of a half way house and has something of the back of a fag packed nature of many of the parts of the bill, not yet fully implementing the revolution in planning it portends.  If we are moving to a zoning and subdivision system this requires checks and balences for when zoning becomes rezoning, so their is a proper public heating, democratic decision and independent review.  There is nothing in the bill at present to stop any cabinet member with delegated authority to add a piece of unzoned land to a register and then grant it permission.  Without such checks and balences international experience shows that zoning and subdivision systems can be very open to abuse, favoritism and graft.

2 thoughts on “The Big Shift in The Housing Bill To a Zoning and Subdivision System – not Just Greenfield

  1. Andrew, thanks for this explanatory note, certainly makes it easier to understand. I was wondering whether or not it would be possible to establish a design code under an LDO, but this does not appear to be the case under the current legislation as proposed?

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