The 'brownfield presumption' – problem solved?

The Department for Levelling Up, Housing and Communities is to consult on a proposal to clear hurdles for developers of brownfield sites. Rita Bange examines the detail. 

As part of its long-term plan for housing, the Department for Levelling Up, Housing and Communities announced on 13 February 2024 that every council in England will be told that they will need to prioritise brownfield residential developments, be less bureaucratic and more flexible (for example as to guidance on the internal layout of developments) in applying policies that stop housebuilding on brownfield land. The bar for refusing brownfield plans will be made much higher for those big city councils who are failing to hit their locally agreed housebuilding targets. A public consultation on these proposals has been launched and will run until Tuesday 26 March. But what are the issues to consider?

What is brownfield land?

In the context of planning, Annex 2 of the National Planning Policy Framework defines previously developed land (alternatively known as 'brownfield land') as 'land which is or was occupied by a permanent structure, including the curtilage of the development land (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure'. Common brownfield land might include redundant industrial sites and transport facilities but expressly excludes residential gardens.

Brownfield challenges

The government's proposals would mean planning authorities in England’s 20 largest cities and towns will be made to follow a ‘brownfield presumption’, if housebuilding drops below expected levels.

Councils play a critical role in bringing forward brownfield sites using statutory powers and strategic oversight to support revitalisation in their areas. However, the brownfield presumption may not address the obstacles councils face when trying to bring forward brownfield sites for redevelopment.

Planning

• The desire to redevelop brownfield sites for housing is not consistent with how the planning system works. Many developers find the planning system difficult and slow. Once the process is started, pre-development costs can escalate (environmental and flood-risk assessments, community facility assessments, and infrastructure assessments etc).

Funding

• Councils may have access to funding to help towards costs for remediation, however funding will usually be conditional on clawback or spending deadlines which may be difficult for the council to agree. Access to funding can be bureaucratic, time consuming and protracted. Funding assistance for brownfield remediation must streamlined.
• From a developer's perspective, obtaining finance maybe challenging. Brownfield redevelopment generally has higher upfront capital costs. Unlike an investment facility where a lender can expect to see reports evidencing that remediation works have been successfully completed, with development finance the developer will have yet to carry out these works as they will be funded from the loan monies. The funder is going to want to see evidence that the developer has approached and costed the remediation risk properly.

Expensive and complex remediation

• One of the biggest challenges is the cost of clean-up and remediation. Depending on the level of contamination, it can be expensive and time-consuming to clean up a brownfield site and make it safe for redevelopment.In response to the consultation, the Royal Institute of Chartered Surveyors (RICS) make the point that there is a lack of government funding to support making brownfield sites safe for re-development.Where there is more contamination than expected and/or remediation costs are higher than projected this often is reflected in a reduced land offer by the developer to the local authority.

Location

• Brownfield sites are often located in previously industrial areas of a town or city, meaning that unless development comes as part of wider regeneration, it is unlikely to produce viable yields and/or be attractive for development. The location of sites often means there is no accompanying transport infrastructure, shops, schools, and healthcare facilities etc. Regeneration is about social, economic, and physical renewal. Creating new homes on brownfield land does not necessarily create a community or a good place to live.

Perception

• Public perceptions can be another concern. The public may feel uneasy about occupying homes on former brownfield sites, so managing this perception is key, especially if a site had a long-established prior industrial use. However, Brownfield land is considered politically more acceptable than green belt development.

Protracted procurement processes

• Developers understand that there will be a requirement for a procurement process and expend time and resource to take part. However, developers will be disincentivised to take part in procurement processes that are protracted, especially if the council is asking the developer to accept financial / environmental risk.

Brownfield public sector land can be invested into via joint-venture agreements with developers to encourage housing development. This already happens, but with so much public sector brownfield land ripe for development, there is scope to help speed along this process.

Brownfield development is a hot topic of conversation and the brownfield presumption maybe welcomed by many and seen as positive step to unlock complex sites for regeneration. However, it is only one piece in a complex housing puzzle. Unlocking brownfield sites will take more than the brownfield presumption.

Rita Bange is a Senior Associate at Trowers & Hamlins.