Brownfield Passports: building on old foundations?
On Sunday, MHCLG launched a policy paper seeking views on the introduction of “Brownfield Passports”.
“Brownfield Passports” are a set of policy initiatives designed to make it clearer that:
- brownfield land should be the first port of call when looking at sites for development; and
- the development of brownfield sites should generally be considered acceptable in planning terms.
“Brownfield Passports” wouldn't be introduced immediately*, but would instead be introduced as NDMPs under the Levelling-up and Regeneration Act 2023 (LURA)**
The working paper considers how the aims of policy could best be achieved, with MHCLG's focus being on four main options:
- whether national policy should explicitly state that development on brownfield land within urban settlements is acceptable unless specified exclusions apply. Those exclusions could, for example, include that there is no adverse impact in relation to flood risk and access that cannot be mitigated.
- Whether national policy should set minimum expectations for the scale, height and density of development in certain types of location where a particular scale of development may be appropriate; or alternatively whether policy should be amended to encourage such parameters to be set through local development plans i.e. through design codes; and
- Whether design codes should be used to identify potential regeneration areas and provide clarity on the types of development that are regarded as acceptable in particular locations; and
- Whether local development orders should be used to grant area-wide permissions for developments that meet the specified criteria on scale, design and density in specific locations.
MHCLG are seeking views on a wide range of questions about how best to formulate the policy. Unlike a consultation paper, however, there is no deadline given for responses nor a specified email address for submitting them.
If this all seems a bit familiar, it is because it is. Over the years, the government has considered and consulted upon any number of policy initiatives to encourage brownfield development and the promote the ‘gentle densification’ of urban areas.
Some of the more recent examples include:
Street Votes
Street Vote Development Orders are a type of hyper-local development order, the framework for which was introduced by LURA. A consultation on the secondary legislation required to implement them closed in February, and a response has yet to be published.
The general idea, however, was to allow a group of residents to draw up proposals to permit certain types of development on their street, or within their neighbourhood - such as the addition of an extra storey to properties or specified types of rear or side extensions.
That proposal would then be examined by the Planning Inspectorate to check that the proposed development complies with the relevant secondary legislation. If it passed examination, the proposal would be put to a referendum and then if that hurdle was passed, the Planning Inspectorate would make the street vote development order.
Once the street vote development order had been made, the residents (or at least those of them who owned property) could then carry out the development permitted by the order - for as long as it remained in force.
Admittedly, without further secondary legislation, we may never know if Street Votes prove to be the key to unlocking waves of mansion blocks across the english suburbs…. but it seems unlikely.
The version of street vote development orders consulted upon by the last government were both procedurally complex and hyper-local, requiring small, dedicated, groups of residents to both promote them and secure approval at a referendum. The street vote development orders were also not required to be in accordance with the relevant LPA's local plan - which drew criticism from some respondents to the consultation.
The enabling legislation for them is, however, already on the statute books - meaning that they could be resurrected, in a new form, relatively easily.
Permissions in Principle
Permissions in Principle (or PiPs) have been around for some time. They were introduced to the planning system in 2018.
At a very high level, the idea behind a PiP is to provide an alternative route to obtaining planning permission for housing schemes, which separates the principle of whether development is acceptable or not from the technical detail.
There are two stages to a permission in principle consent:
- the permission in principle establishes whether a site is suitable in-principle; and
- the technical details consent assesses the detailed development proposals.
And there are a number of ways a PiP can be granted:
- For residential schemes which do not comprise major development, a developer can apply for a PiP from the LPA; or
- An LPA can ‘automatically’ grant a PiP to brownfield sites by including them in Part 2 of its Brownfield Land Register.
Despite the fact that they have been around for ages, PiPs have not really taken off and are very rarely used.
There are several reasons for this:
- Applications for PiPs can only be made for minor residential sites and are subject to a fair number of restrictions. For example, you can't use a PiP if your site needs an EIA or a Habitat Regs Assessment.
- They are not seen as providing many advantages over an outline planning permission - which is a much more established and widely understood form of consent; and
- Very few*! LPAs have activated Part 2 of their Brownfield Land Registers, which is the only way to obtain a PiP for major housing-led development
Without greater use of Part 2 of Brownfield Registers to grant PiPs on larger sites, they are likely to remain a little-used quirk of the English planning system; as opposed to unleashing a new wave of brownfield development sites.
Zoning
The idea of “zoning” areas within an LPA for specific types of development dates back to the 2020 “Planning for the Future” White Paper.
Then, the idea was for each LPA to divide their areas into zones for Growth, Renewal and Protection, with automatic permission in principle being granted for specified types of development in “Growth” and “Renewal” zones - as part of the local plan designation process.
These reforms proved a step too far, even for the Johnson government, and they were abandoned after they prompted a significant conservative back-bench rebellion.
The idea of using local design codes and masterplans to ‘zone’ areas as being suitable for certain types of development has, however, remained influential. Indeed, it can be seen both in the push towards wider use of design codes and in ideas such as ‘Street Votes’ - which I mentioned earlier.
Labour's policy paper on “Brownfield Passports” contains elements of all three of the above ideas. However, unless they first properly tackle some basic, practical issues, Brownfield Passports are unlikely to be any more successful than these predecessor policies.
The reasons more brownfield sites don't come forward for development, are rarely down to a lack of policy support.
Instead the issues tend to be far more practical. Such as:
- Complicated site assembly issues;
- High remediation costs on sites that previously hosted polluting uses (such as former industrial sites);
- The need for extensive flood mitigation works or re-levelling of sites in flood zones;
- The presence of open mosaic habitat on site;
- Viability concerns caused by higher build costs and higher alternative or existing use values; and/or
- The need for costly upfront investment in infrastructure.
If Brownfield Passports are to really unleash the potential of brownfield sites in England, they need to focus a little less on policy support and an awful lot more on the practicalities of bringing these sites forward.
After all, a site will not get developed unless it is both viable and deliverable. Until those hurdles are crossed, it doesn't matter how much policy support it has.
*which is quite handy, as it looks as if they are still being formulated.
** for those who need the reminder NDMPs or National Development Management Policies will, once introduced, sit alongside (and crucially will have the same legal status as) an LPA's local plan. Where a local plan and the NDMP conflict the NDMP would take priority.
*! By which I mean almost none. Well, I certainly am not aware of any… but I could be wrong.
As such, while we are not considering the granting of automatic planning permission on suitable brownfield sites or removing appropriate local oversight of the development control process, we do want to explore ways in which providing more explicit expectations for development could lower the risk, cost, and uncertainty associated with securing planning permissions on brownfield land.
In order to maximise clarity and certainty about the opportunities to make best use of urban land, we think there is scope to make further policy changes, at both a national and local level, relating to the principle, scale, and form of development in different types of location.”
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