Planning guidance updated to reflect permission in principle, self-build

Some of the biggest changes include guidance on the new planning consent route known as permission in principle (PiP), as well as additions to the self-build and custom housebuilding guidance covering additional eligibility criteria.

The 2017 Permission in Principle Order came into force on 15 April 2017. The regulations provide automatic PiP for housing-led development on land included in part 2 of the new brownfield land registers which individual local planning authorities (LPAs) will be required to publish by the end of the year. Separate regulations creating the brownfield land registers came into force the following day.

"At present, there isn't any penalty for those LPAs which do not publish a register by the expected date of 31 December 2017," said housing and planning law expert Victoria Lindsay of Pinsent Masons, the law firm behind Out-Law.com.

"We are still awaiting the secondary legislation to be introduced whereby it will be possible to obtain PiP through the local plan site allocation process or by an application for non-major development. Site allocations in existing local or neighbourhood plans do not have a grant of PiP; however, planning applications should be decided in accordance with those site allocations unless material considerations indicate otherwise," she said.

The new guidance confirms that certain development will be exempt from inclusion in a grant of PiP. This includes Schedule 1 EIA [environmental impact assessment] development; Schedule 2 EIA development that has been screened as EIA development; development prohibited under habitats protection legislation; and development consisting of the winning and working of minerals.

"This therefore excludes EIA development from benefitting from PiP, which crucially rules out a great deal of large scale development from being granted a PiP," Lindsay said. "However this may, in practice, be of not too much concern for developers as the PiP regime isn't necessarily appropriate for larger sites and a full planning application or outline planning application may be a better route to take."

"Interestingly, the guidance notes that if a local planning authority only identifies at the technical details stage – that is, after the grant of the PiP decision – that the development proposal should in fact by subject to EIA, the grant of the PiP remains valid. In this scenario, the specific requirements set out in the EIA regulations relating to EIA development must be met before the technical details consent can be granted," she said.

Lindsay said that the guidance contained very little about how an LPA could ensure that local information requirements for technical details consent applications are proportionate, despite calls for more guidance from consultation respondents. Instead, LPAs should "take a proportionate approach to any information they request ... which should be relevant, necessary and material to the application in question". This should be able to be "provided in a single, concise statement"; however, the LPA may provide further information on what they expect at the technical details stage on the relevant entry on their brownfield land register, according to the guidance.

Provisions in the 2016 Housing and Planning Act (2016 Act) introduced a new duty for local planning authorities (LPAs) to grant permission for enough serviced plots to meet the demand for self-building and custom building in their area. Local authorities now also have the ability to set additional eligibility criteria allowing them to prioritise those with a 'local connection' and who meet financial solvency requirements when accommodating requests for serviced plots.

The new guidance states that local authorities should only seek to impose a local connection or financial solvency test where they have a "strong justification" for doing so. The tests should be proportionate and, in the case of a local connection test, should be proposed in response to a "recognised local issue", according to the guidance.

"Relevant authorities should consider consulting on their proposals before they introduce the tests and should review them periodically to ensure that they remain appropriate and that they are still achieving the desired effect," the guidance said.

Authorities may wish to consider criteria based on residency, local family members or a local employment connection, according to the guidance. However, it would be for each authority to set the specific conditions attached to the test in line with the rationale behind its introduction.

Members of the armed forces and ex-service personnel that do not meet the criteria in the local connection test must be deemed as having done so, according to the guidance.

"What is interesting is that the guidance states that local authorities should only apply a local connection or financial solvency test where they have strong justification for doing so, with proportionality and consultation requirements imposed," said housing law expert Lucy Close of Pinsent Masons. "It is not clear what is meant by a 'strong justification'; however it does suggest that such tests would not be the normal approach."

"In addition, the PPG does not assist with how a local connection or financial solvency test would operate practically, and therefore how individuals would be allocated between Parts 1 and 2 of the register. I also note that there is still no discussion of a right to appeal if you are allocated to Part 2, indicating that you do not meet the additional criteria, rather than Part 1," she said.

Where the LPA has chosen to apply additional criteria, and to therefore operate a two-part register, it need only count entries on Part 1 of the register towards the number of suitable serviced plots for which it must grant development permission. Entries on Part 2 do not count towards 'demand', but LPAs must have regard to these entries when carrying out their planning, housing, land disposal and regeneration functions.