Developing brownfield land can provide valuable opportunities for property owners, developers and investors looking to bring previously developed land back into productive use.
Brownfield sites can range from former industrial premises and commercial sites to previously developed residential land. While these sites can offer significant development potential, they can also present planning, environmental, title and legal issues that need to be considered before a project begins.
A brownfield site may appear to be an obvious development opportunity, but its previous use can create challenges that are not immediately visible. Contamination, existing buildings, restrictive covenants, access arrangements, planning restrictions and infrastructure requirements can all affect whether a proposed development is viable.
Understanding these issues early can help developers make better-informed decisions about whether to purchase, develop or seek planning permission for a brownfield site.
At Charrette Law, we advise property owners, developers and landowners on planning and property-related legal matters. Where brownfield development involves planning obligations, restrictive covenants, environmental concerns or other legal issues, obtaining advice at an early stage can help reduce unnecessary risks.
What Is Brownfield Land?
Brownfield land generally refers to land that has previously been developed.
It can include land that has been occupied by:
- Former factories or industrial premises.
- Warehouses.
- Commercial buildings.
- Former offices.
- Previously developed residential sites.
- Former garages or yards.
- Other developed land that is no longer in its previous use.
Brownfield sites vary considerably. Some may already have buildings and infrastructure, while others may have been cleared and left vacant.
The fact that land is classified or described as brownfield does not automatically mean that planning permission will be granted for any proposed development.
The planning history, location, current planning policies and characteristics of the site still need to be considered.
Why Is Brownfield Land Important for Development?
Brownfield land can present opportunities for redevelopment without necessarily requiring the use of previously undeveloped land.
For developers, a brownfield site may offer the potential to:
- Redevelop an existing property.
- Convert an existing building.
- Replace an outdated structure.
- Create new residential accommodation.
- Introduce a new commercial use.
- Regenerate an underused site.
- Make more efficient use of land within an existing settlement.
However, development potential needs to be assessed on a site-by-site basis.
A site that appears suitable for development may have restrictions affecting its use, access, design or potential scale.
This is why carrying out appropriate due diligence before committing to a brownfield site can be particularly important.
Does Brownfield Land Automatically Have Planning Permission?
No.
One of the most common misconceptions about brownfield sites is that previous development means a new development can automatically proceed.
Brownfield status does not itself grant planning permission.
If you want to build a new property, significantly alter an existing building or change its use, you may need to submit a planning application unless another form of planning consent or permitted development right applies.
The Local Planning Authority will assess the proposal against relevant planning policies and other material considerations.
Our article on Planning Applications and Appeals explains more about the planning application process and what can happen if an application is refused.
Brownfield Land and Permitted Development
In some circumstances, permitted development rights may apply to development on previously developed land.
However, permitted development rights are subject to conditions and limitations.
Developers should therefore establish whether their proposal qualifies before assuming that planning permission is unnecessary.
Where permitted development rights do not apply, a planning application may be required.
What Planning Issues Affect Brownfield Development?
The planning considerations affecting brownfield land will depend on the site and proposed development.
Issues can include:
- The proposed use of the site.
- The scale and height of development.
- Design and appearance.
- Impact on neighbouring properties.
- Access and highways.
- Parking.
- Local planning policies.
- Heritage considerations.
- Flood risk.
- Biodiversity and ecology.
- Environmental impacts.
- Infrastructure requirements.
The planning history of the site can also be important.
Previous planning applications, refusals, permissions and conditions may provide useful information when assessing the site’s development potential.
Brownfield Development and Contaminated Land
One of the most important considerations when developing brownfield land is its previous use.
Former industrial and commercial sites may have a history of contamination arising from previous activities.
Potential contamination can include:
- Chemicals.
- Heavy metals.
- Hydrocarbons.
- Asbestos.
- Industrial waste.
- Other hazardous substances.
This does not necessarily prevent development, but contamination can affect the cost, design and timescale of a project.
Appropriate environmental investigations may therefore be necessary before development proceeds.
Our article on Environmental Legal Advice explains why environmental issues can be important for developers and property owners and why they should be considered at an early stage.
Why Environmental Due Diligence Matters
Discovering contamination after purchasing a site can create unexpected costs.
Depending on the circumstances, developers may need to consider investigation, remediation and other environmental requirements.
This is one reason why environmental due diligence can form an important part of the process when acquiring brownfield land.
Understanding potential liabilities before completing a purchase can help you make a more informed decision about the site’s viability.
Brownfield Land and Restrictive Covenants
Planning permission is not the only issue developers need to consider.
A brownfield site may also be affected by restrictive covenants contained within the property’s title.
A restrictive covenant may limit how land can be used or developed.
For example, a covenant may restrict:
- Additional buildings.
- Certain types of development.
- Commercial activities.
- Subdivision of land.
- Alterations to existing buildings.
This means that even where planning permission is available, a private legal restriction could potentially affect the proposed development.
Our article on Restrictive Covenant Lawyers explains how restrictive covenants can affect property owners and developers and the options that may be available where a covenant creates an obstacle.
Planning Permission Does Not Override a Restrictive Covenant
This distinction is particularly important.
Planning permission deals with public planning law, whereas a restrictive covenant is a private legal obligation.
Obtaining planning permission does not automatically remove a restrictive covenant.
If you are considering purchasing brownfield land for development, it can therefore be important to investigate both the planning position and the property’s legal title.
Brownfield Development and Section 106 Agreements
Larger developments may also involve planning obligations.
A Section 106 Agreement can require a developer to undertake certain obligations or make contributions related to the impact of a proposed development.
The requirements will depend on the particular development and the planning circumstances.
Before acquiring a brownfield site, developers should consider whether existing planning obligations or potential future obligations could affect the financial viability of the project.
Our Section 106 Agreement article provides further information about how these agreements can affect developers.
Brownfield Development and Highway Requirements
Access can be another important consideration.
A development may require improvements to roads, junctions or other highway infrastructure.
Where highway works are required as part of a development, a Section 278 Agreement may become relevant.
The need for highway improvements can affect development costs and timescales, making it important to consider access and highway requirements during the early stages of assessing a site.
Can Brownfield Land Be Developed in the Green Belt?
Brownfield land can sometimes be found within the Green Belt, but its previous development does not automatically remove Green Belt restrictions.
Green Belt policy can impose additional considerations on development proposals.
This is particularly important for developers who assume that a previously developed site automatically has greater freedom simply because it is brownfield.
Our article on Permitted Development Rights and Green Belt Land explores some of the considerations that can apply where permitted development and Green Belt restrictions overlap.
If you are considering a brownfield site within or close to the Green Belt, obtaining site-specific planning advice before proceeding can help you understand the potential restrictions.
What Should You Check Before Buying Brownfield Land?
Before purchasing a brownfield site for development, it is sensible to investigate both its planning and legal position.
Planning Checks
Consider:
- The site’s planning history.
- Existing planning permissions.
- Previous refusals.
- Relevant local planning policies.
- Potential development uses.
- Planning conditions.
- Access and highways.
- Environmental considerations.
Legal and Property Checks
You should also consider:
- Title restrictions.
- Restrictive covenants.
- Rights of way.
- Access rights.
- Existing leases.
- Boundary issues.
- Third-party rights.
- Existing planning obligations.
Environmental Checks
Depending on the previous use, environmental due diligence may also be appropriate.
The objective is to identify potential obstacles before you commit significant funds to the site.
What If Planning Permission for Brownfield Development Is Refused?
A brownfield site is not guaranteed planning permission simply because it has previously been developed.
If your planning application is refused, you may have several options depending on the circumstances.
You may be able to:
- Amend the proposal.
- Submit a revised planning application.
- Address specific concerns raised by the Local Planning Authority.
- Appeal the decision.
The reasons for refusal should be carefully considered before deciding what to do next.
Our Planning Appeal and Planning Applications and Appeals articles provide further information about the options available following a planning refusal.
How Charrette Law Can Help With Brownfield Development
Brownfield development can involve several overlapping areas of law.
At Charrette Law, we can advise property owners, developers and investors on legal issues connected with planning and property development.
Our wider planning and property work includes matters involving:
- Planning applications.
- Planning appeals.
- Planning objections.
- Restrictive covenants.
- Environmental legal issues.
- Section 106 Agreements.
- Section 278 Agreements.
- Permitted development.
- Property development.
We can help you understand the legal considerations affecting your project and identify potential issues that should be addressed before development proceeds.
Considering Brownfield Land Development?
Brownfield sites can provide significant development opportunities, but they should not be assessed on development potential alone.
Before purchasing or developing brownfield land, it is important to consider its planning history, legal title, environmental condition, access requirements and any obligations or restrictions affecting the site.
Obtaining professional advice early can help identify potential obstacles before they become expensive problems.
If you are considering purchasing or developing brownfield land, contact Charrette Law to discuss your project and obtain expert advice on the planning and legal issues that may affect your development.
Frequently Asked Questions
Does brownfield land automatically have planning permission?
No. Brownfield status does not automatically grant planning permission. A proposed development may still require planning permission or need to satisfy the requirements of permitted development rights.
Is brownfield land easier to develop?
It can sometimes present opportunities for development, but this does not mean every brownfield site will be suitable or straightforward to develop. Planning, environmental, legal and infrastructure issues can all affect viability.
Can I build houses on brownfield land?
Potentially, but the ability to develop residential property will depend on the site’s planning designation, relevant planning policies, existing permissions and the details of the proposed development.
Does brownfield land have to be contaminated?
No. However, some brownfield sites have previously been used for industrial or commercial purposes, meaning contamination may need to be investigated depending on the site’s history.
Can restrictive covenants affect brownfield development?
Yes. A restrictive covenant can limit how land is used or developed even where planning permission has been granted. The planning and legal position should therefore be considered separately.
Can brownfield land be developed in the Green Belt?
Development on brownfield land within the Green Belt can still be subject to Green Belt planning policies and restrictions. The fact that land has previously been developed does not automatically remove those restrictions.
Do brownfield developments require a Section 106 Agreement?
Not necessarily. Whether a Section 106 Agreement is required depends on the nature, scale and circumstances of the proposed development.
Can Charrette Law help with brownfield development?
Yes. Charrette Law can advise property owners, developers and investors on planning and legal issues affecting brownfield development, including planning applications, appeals, restrictive covenants and development-related obligations.
