Brownfield Thinking

“Brownfield land” is right up there with “hard-working families” in terms of the political buttons that it presses. But what is it and what are the implications of land being “brownfield”?
There is no planning law definition other than the definition of “previously developed land” in the glossary to the NPPF:

“Land which is or was occupied by a permanent structure, including the curtilage of the developed land (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure. This excludes: land that is or has been occupied by agricultural or forestry buildings; land that has been developed for minerals extraction or waste disposal by landfill purposes where provision for restoration has been made through development control procedures; land in built-up areas such as private residential gardens, parks, recreation grounds and allotments; and 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”.

It may be a surprise to some that there is nothing in the definition that connotes “under-used”, “vacant” or “derelict” – the definition does not exclude land which is currently in occupation (save occupation by agricultural or forestry buildings).

It may also be a surprise to some that (just as large parts of the green belt are anything but green) brownfield land is often anything but brown. The definition only excludes “private residential gardens, parks, recreation grounds and allotments” to the extent that they comprise “land in built-up areas”. The High Court recently confirmed (although it’s obvious on the wording of the definition) that land used as private residential gardens, parks, recreation grounds and allotments in the countryside as opposed to “in built-up areas” comprises brownfield land (Dartford v Secretary of State, 21 January 2016).

The Government has set as a policy objective that 90% of brownfield land “suitable for housing” should have planning permission by 2020. It is seeking to achieve this by a number of policy initiatives, which include:

Housing and Planning Act: permission in principle

The Act provides for the establishment of a register (which the explanatory notes to the Act, rather than the Act itself, explains is intended by the Secretary of State to be a register of brownfield land which is suitable for housing development). Local authorities will be able to place land on the register if it meets criteria which the Secretary of State will set down. The Explanatory Notes accompanying the Act state that “the criteria prescribed by the Secretary of State could for example include that the land must be available already or in the near future for housing development, that it must not be affected by physical or environmental constraints that cannot be mitigated and that it must be capable of supporting 5 dwellings or more“.

The effect of being on the brownfield land register is that, by a general development order, the Government will give automatic permission in principle for certain specified types of site suitable for housing which are on the register, or which have been allocated for that purpose in other local plan documents. The details of what the criteria will be are left for the general development order. The detailed procedure that authorities have to follow in deciding what land goes on the register is also left for later regulations.

Strengthened NPPF policies

The Government has consulted on changes to the NPPF, which would:

– provide that “substantial weight should be given to the benefits of using brownfield land for housing (in effect, a form of ‘presumption’ in favour of brownfield land). We propose to make it clear that development proposals for housing on brownfield sites should be supported, unless overriding conflicts with the Local Plan or the National Planning Policy Framework can be demonstrated and cannot be mitigated” (paragraph 22)

– include an even stronger presumption for starter homes on unviable or underused brownfield land – “Alongside these proposals, we propose to widen the scope of the current exception site policy for starter homes to incorporate other forms of unviable or underused brownfield land, such as land which was previously in use for retail, leisure and non-residential institutional uses (such as former health and educational sites). This will provide clarity about the scope of the exception site policy for applicants and local planning authorities, and release more land for starter homes.” (Paragraph 40)

strengthen the starter homes exception sites policy – “To ensure there is greater certainty that planning permission will be granted for suitable proposals for starter homes on exception sites, we propose to be clearer about the grounds on which development might be refused, and to ensure that this is fully embedded in national planning policy. Specifically, we propose to amend the exception site policy to make it clearer that planning applications can only be rejected if there are overriding design, infrastructure and local environmental (such as flood risk) considerations that cannot be mitigated.” (Paragraph 42)

– support development of brownfield land in the green belt if it “contributes to the delivery of starter homes” (weaselly word, “contributes”!) as long as there is no substantial harm to the openness of the green belt. (Paragraph 53)

The consultation period has closed and we await what emerges…

PS ask a tax lawyer about brownfield land and you will get a very different answer based on its use as shorthand for reliefs available for remediation of contaminated land.
Simon Ricketts 8.6.16

Personal views et cetera

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