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Government changes to housing bill clarify duration of permission in principle


Changes introduced to the Housing and Planning Bill at its third reading in the House of Lords last week clarify when 'permission in principle' (PiP) will take effect and how long it will last.

A planning expert has said that it is still unclear exactly how PiP will work in practice, and has questioned how it will sit alongside environmental requirements.

The Bill will enable development orders to be made: granting PiP on land allocated for development in 'qualifying documents' ('Allocation PiPs'); or providing for local planning authorities (LPAs) to grant PiP on small sites on application from a developer ('Application PiPs'). Where PiP has been granted, a scheme will receive full planning permission once the relevant LPA has consented to the technical details.

Parliamentary under-secretary of state for communities and local government Baroness Williams of Trafford introduced amendments to the Bill last week, clarifying when PiP will start and how long it will last.

Unless the development order allows LPAs to specify a commencement date, Allocation PiPs will start when the relevant qualifying document takes effect or is revised. The amendments make clear that a local development document 'takes effect' when it is adopted or approved; a neighbourhood development plan takes 'takes effect' when it is made by the LPA; and a statutory register of brownfield land will 'take effect' when it is first published.

Allocation PiPs will last for five years, unless the LPA sets a longer or shorter time period. Application PiPs will last three years, unless otherwise directed by the LPA.

Planning expert Rebecca Warren of Pinsent Masons, the law firm behind Out-Law.com said: "Whilst the new provisions in relation to timing and duration are welcome, it is still not entirely clear exactly how PiP will work in practice, with much of the detail proposed to follow in the development orders through which it will be implemented."

"One concern is the lack of clarity over how PiP will interact with existing requirements for Environmental Impact Assessments (EIAs) and Habitats Assessments," said Warren. "The government has proposed (64-page / 803 KB PDF) that developments exceeding thresholds above which EIAs may be required will not be able to receive PiP unless an EIA has been produced and appropriate mitigation has been agreed or the relevant LPA has determined that an EIA is not necessary."

"Given the information required in order for EIA decisions to be made, this approach appears to be at odds with the government's insistence that the 'in principle matters' dealt with by PiP will only include the location, uses and the number of units that will be allowed at a given site, with everything else regarded as 'technical details' for later agreement," said Warren.

"Many sites allocated in local plans will exceed the EIA thresholds so Allocation PiPs may be of limited value," she said. "Government proposals also fail to address the risk of 'salami slicing', whereby developers avoid the need to produce an EIA by bringing forward developments in stages with housing numbers and development areas that do not individually exceed thresholds. The government is seeking views on other ways to approach PiPs to ensure compliance with these other regime requirements and clearly will need to be alive to the risk of 'salami slicing' development under an Allocation PiP at technical details stage."

"The government has also said that the requirements of the Habitats Directive "will … need to be met where they apply". However, it is unclear how and when it will be decided whether a Habitats Assessment will be required for development at a given site," said Warren.

"Developers and local authorities could face judicial review challenges if they fail to comply with the habitats regulations, whilst the government itself could face domestic legal challenges or enforcement action from the European Commission if the PiP legislation is found to circumvent the underlying Directive. Given these potential consequences, particular care and attention will be needed in this area. In Scotland, a similar regime to PiP was mooted but failed to get out of the starting blocks due to similar challenges arising from the need to comply with other legal regimes," Warren said.

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