Legislation for Consideration:
Planning Policy Guidance Note 3 (PPG3) (Revised March 2000)
Town & Country Planning (Residential Development on Greenfield) Direction 2000
Town & Country Planning (Environmental Impact Assessment) (England & Wales) Regulations 1999
DETR Circular 02/99 Environmental Impact Assessment
DETR - Land Use Changes in England No.1
In the last two years planning has moved on, not only in legislation, but understanding, and court decisions. There is a revised PPG3, the Greenfield Direction, and cases such as Newport (perceived risk to health) and Rochdale (consideration of environmental information should not be left to the reserved matters stage)
For the first time a definition has been given as to what constitutes a brownfield site, this is quite important if the arguments below are to be effective. Annex 'C' to PPG3 sets it out as:
There are various definitions of previously-developed land in use. For the purposes of this guidance, such land is defined as follows:
Previously-developed land is that which is or was occupied by a permanent structure (excluding agricultural or forestry buildings), and associated fixed surface infrastructure. The definition covers the curtilage of the development. Previously-developed land may occur in both built-up and rural settings. The definition includes defence buildings and land used for mineral extraction and waste disposal where provision for restoration has not been made through development control procedures.
The definition excludes land and buildings that are currently in use for agricultural or forestry purposes, and land in built-up areas which has not been developed previously (e.g. parks, recreation grounds, and allotments - even though these areas may contain certain urban features such as paths, pavilions and other buildings). Also excluded is land that was previously developed but where the remains of any structure or activity have blended into the landscape in the process of time (to the extent that it can reasonably be considered as part of the natural surroundings), and where there is a clear reason that could outweigh the re-use of the site - such as its contribution to nature conservation - or it has subsequently been put to an amenity use and cannot be regarded as requiring redevelopment.'
For the 'Greenfield Direction' to be effective the land should fall outside the description above. No previous development, means greenfield land, previous development, but turned back to nature with few if any signs of the previous development, to the degree that the old development has become part of the natural landscape, means greenfield land, if any of that applies then you have passed the first hurdle.
The next point is that local authorities now have a duty to reassess their local and structure plans. To specifically look at the housing content. To reappraise the density of housing allocations. They no longer need to have a strict fives years supply of housing land. PPG3 again in Annex 'C' sets out the criteria for assessing the numbers of housing needed to be included in local plans (thus the level of land required to be kept available for housing development).
There is no commonly used definition of net housing density but advice is contained in The Use of Density in Urban Planning (see Annex D) paragraphs 8.19 - 8.27.
For the purposes of PPG3, local authorities should adopt the approach to "net site density" set out in that document. Paragraphs 8.19 - 8.22 states:
8.19 A "net site density" is a more refined estimate than a gross site density and includes only those areas which will be developed for housing and directly associated uses. This will include:
8.20 It therefore excludes:
8.21 A net site density is the most commonly used approach in allocating housing land in development plans and is appropriate for development on infill sites where the boundaries of the site are clearly defined and where only residential uses are proposed. It is also appropriate where phased development is taking place in a major development area (perhaps spanning different plan periods) and individual housing sites have been identified.
8.22 Unlike gross, neighbourhood and town/district densities, the density assumption used does not need to reflect the inclusion of non-residential uses, but is solely based on the form of housing development envisaged.
1. In other words, the urban land uses as defined by the DETR's Land-Use Change Statistics (excluding 'urban land not previously developed'). See Annex B of Land Use Change in England No 14 which is available at Error! Reference source not found..
2. The curtilage is defined as the area of land attached to a building. All of the land within the curtilage of the site (as defined above) will also be defined as previously-developed.
However, this does not mean that the whole area of the curtilage should therefore be redeveloped. For example, where the footprint of a building only occupies a proportion of a site of which the remainder is open land (such as at an airfield or a hospital) the whole site should not normally be developed to the boundary of the curtilage. The local planning authority should make a judgement about site layout in this context, bearing in mind other planning considerations, such as policies for the protection of open space and playing fields or development in the countryside, how the site relates to the surrounding area, and requirements for on-site open space, buffer strips, landscaped areas, etc.
3. These land uses are in addition to the Land-Use Change Statistics 'urban' groups.
4. This relates to minerals and waste sites which are to remain unrestored after use because the planning permission allowing them did not include a restoration condition. All other such sites will be restored to 'greenfield' status, by virtue of the planning condition.
5. The definition does not supersede or in any way change the policy in respect of the redevelopment of major developed sites in the Green Belt set out in Annex C to Planning Policy Guidance note 2: Green Belts.
Annex 'B' - DETR 'Land Use Change in England no. 14'
(a) Vacant Land previously developed (V)
Land that was previously developed and is now vacant which could be developed without further demolition or treatment. For example, cleared sites with no fixed structures or building foundations. Includes cleared sites used as temporary car parks or playgrounds, provided no work has been done to facilitate their temporary use and there are no permanent fixtures or structures.
(b) Derelict Land (Z)
Land previously developed but currently unused which requires some demolition work or other treatment before it could be developed. For example, a derelict site that needs to be cleared, levelled or have foundations removed.
(c) Urban Land not previously developed (X)
Land in built-up areas which has not been developed previously and which is not currently used for agriculture which is shown on the OS map as a 'white' area without annotation. (Note - If it was not in a built-up area (or if it was being used for agriculture), such land would be classified as Agricultural Land (A)).
Ordnance Survey surveyors record all known land use changes to the nearest 0.1 hectare (i.e. 1/4 acre). For areas below 0.1 hectare, those measured by eye as 0.05 to 0.09 hectare are recorded as 0.1 and those measured as 0.04 or below are given the value 0.03.
Keeping in mind throughout this briefing the definitions as set out above, we can start putting some beef to our case.
(note Greenfield sites does not mean Green Belt Land). The rules are now far more stringent than under the old regime. No longer are local authorities required to keep a strict 5 years supply of housing land available. More regular updating of local plans is required. The new Rules take precedent over land already allocated to housing within the local plan. EIAs are more robust in the criteria that applies, and the types of developments that come within its remit.
First to decide if the development comes within the Greenfield Direction consideration must be given to the criteria set out in PPG3.
Para 32 states that there will be a presumption to develop previously developed sites before greenfield sites, unless the quality of available brownfield sites is so poor that it prevents their use for housing (examples of this might be, badly contaminated land, or land previously used for landfill, where there is a potential for gas migration) then brownfield must be given priority over greenfield, applying in effect a sequential test. Para 33 goes onto give that consideration an ongoing obligation, in other words they must consider each site on its merits before releasing it for development
Para 34 goes on to give the obligation to use a rolling criteria to the 5 year land supply. It could be argued from this that if there is sufficient brownfield sites within an area, then few if any greenfield sites should be included.
Paragraph 37 sets out that local authorities should update their plans to take account of the new criteria.
Paragraph 38 states that in the interim the policy contained within PPG3 is a material planning consideration and may supersede the policies in their plan, and lists a number of criteria that should be taken into account.
Para 39 sets out that housing applications on greenfield sites of 5 hectares or more, or 150 dwellings, must be referred to the Secretary of State. The criteria applies equally to renewed applications as it does to new applications, as a consequence of Para 40.
Para 28 through to 31 puts detail into the considerations to be taken into account, although it is phased in terms of plans, the criteria equally to planning applications, due to para 38.
PPG1 - 54
Para 33 of PPG3 gives the obligation to take into account para 54 of PPG1. This sets out that unless there are other material considerations the development plan should be the starting point for all decisions. It clarifies this though and states that development plans should be up to date. Accordingly, if the new criteria is not added to the development plan it will not be up to date, and therefore the new criteria takes precedence, that is the need to exclude greenfield sites from allocated housing sites unless they are insufficient brownfield sites available. But they first have to do the test to ascertain if, not only the site in question should be developed, but whether there are brownfield sites within the borough that would cater for the housing needs.
The Greenfield Direction simply brings all this together, for instance 4.(2)(b) lists the area in calculations of the 5 hectares which means that a housing development application is referred to the Secretary of State:- (i) access roads; (ii) private garden space; (iii) car parking areas; (iv) incidental open space and landscaping, and (v) children’s play areas. And 4(3) lists what is not taken into account: (a) major distributor roads; (b) primary schools; (c) open spaces serving a wider area, and (d) significant landscape buffer strips.
The Direction states that where a local planning authority do not propose to refuse an application which the Direction applies to, the planning authority ‘shall consult’ the Secretary of State. This is a little short of the Secretary of State actually reserving the application decision to him self. Therefore considerable lobbying should be undertaken to ensure that it is put to a public inquiry. Criteria such as a failure to order an EIA would be strong grounds, local authority compromise in the application. Maybe statements of support, or need for the distributor road may be clouding their obligations under the Direction.
There is a requirement under para 7 to supply to the Secretary of State the documents and reports, including a statement that they have taken into account and the grounds on why they feel that the Greenfield Direction should not be applied. More importantly is that they must supply a copy of any representation, so it is important that you get a strong case on paper, first that the application should be rejected, if that is not accepted that the application should be put to a public inquiry.
The local planning authority must wait 21 days beginning with the date they advise the Secretary of State of the application, and that they are minded to approve. If at the end of that period the Secretary of State has not replied, or has stated that he does not intend to issue a direction under section 77 of the T&CP Act 1990 they can proceed with approving the application. It is then quite important that you act swiftly to ensure that the Secretary of State calls the application in. The problem there is that few applications are being called in at the moment because of the ruling from the courts that the Secretary of State as the executive decision maker (sets the rules and makes the decisions, such decisions not having the appearance of an independent decision). The argument to counter this is that the courts are a reviewing body (Section 288 appeals and/or judicial review), and therefore the final decision is capable of independent decision.
The quote given in the media release by Planning Minister Nick Raynsford announcing the Greenfield Direction sums it up "I want every local planning authority to consider whether housing developments ‘in the pipeline’ reflect the guidance in PPG3, even when the proposals gain support from the development plan. PPG3 needs to take effect now, not when all the greenfield allocations made under a previous policy have been exhausted"
What all this means in simple terms is that the local planning authority have to reconsider all existing housing allocations in the light of the new criteria. They must exercise a strict sequential approach to deciding whether development sites can be used for housing. They can only develop if no other suitable sites are available. They must tighten up on the numbers of houses that any given site can accommodate, giving greater numbers per hectare, that means less land is developed. Then only after all this considerations have been taken into account and they are still minded to approve they must then refer the matter to the Secretary of State before giving the final approval. This applying equally to new applications as well as applications for renewed applications (those where the 5 years within which the researched matters must be dealt with, and that time has run out), thereby less applications for renewal should be approved.
The other consideration to this is that because they must consider applications a new, they must take into account all other planning criteria and not just the greenfield considerations. In the last 2 years the EIA regulations have been amended, tightening up some areas, and clarifying others.
There are two listings of types of development where an environmental impact assessment has to be carried out, these are Schedules One and Two to the Town & Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999. Unfortunately out of all the major development types only housing is not included in either of the Schedules of allocated types, however this is often gotten around by reference to Schedule 2 (10)(b) ‘urban development projects - greater than 0.5 hectares’. Naturally to achieve this the development must be in an urban location, or at least if the development proceeds it will be in effect an urbanisation of a rural area.
The procedure then is to carryout a screening opinion, which looks at various criteria to calculate if the development will have an adverse effect on the environment. This is supposed to take place within 3 weeks of the application being lodged with the local authority, it can also be undertaken within 3 weeks of a referrals to the Secretary of State (however the name changes to screening direction.
The criteria to be taken into account in this calculation is included in Schedule 3 to the regulations. thresholds are contained in Annex A17, A18 and A19 of DETR Circular 02/99. These are set out below.
Once the Screening is over and the proposed development is declared an EIA development then Schedule 4 comes into play. Which lists the criteria that must be included in the environmental statement. This is not just issues of a strict environmental nature. This is set out below and is self explanatory.
THE ROCHDALE METROPOLITAN BOROUGH COUNCIL - EX PARTE
(1) ANDREW TEW; (2) GEORGE DANIEL MILNE; (3) STEVEN GARNER
In this case the judge found that an EIA had to be carried out at te initial stage, as it was incapable of being decided later as the public did not have a right to make representation at the reserved matters stage. It follows from this that consideration of environmental aspects cannot be carried out through the mitigation process, at least when the development is an EIA development.
CfPS February 2001
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