Town and Country Planning (Fees and Consequential Amendments) Regulations 2025
(1 week ago)
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Baroness Taylor of Stevenage
That the Grand Committee do consider the Town and Country Planning (Fees and Consequential Amendments) Regulations 2025.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)
My Lords, these draft regulations were laid before the House on 13 February. They make consequential amendments to the Town and Country Planning Act 1990 and other primary legislation, as well as to the planning application fee regulations. These amendments reflect the two new routes for planning permission for Crown development that were introduced through the Levelling-up and Regeneration Act 2023. This legislation forms part of a wider suite of statutory instruments needed to implement these new routes. These routes are crucial to ensure that there is a more timely and proportionate planning process for nationally important public services and infrastructure.
I will start by providing some context and background to these regulations. Recent experience, including the response to Covid-19, has exposed that the existing route for securing planning permission for urgent Crown development, which was introduced in 2006, is not fit for purpose—so much so that it has never been used. Furthermore, government departments have struggled to secure local planning permission for nationally important public service infrastructure, such as prisons. The Levelling-up and Regeneration Act made provision to address these challenges by providing two new routes for planning permission for Crown development in England.
The first route, referred to as Crown development, is for planning applications for Crown developments that are considered of national importance. These applications are to be submitted to the Planning Inspectorate directly instead of to local planning authorities. A planning inspector will consider and determine the application, unless the Secretary of State for Housing, Communities and Local Government recovers the application to determine herself.
The second route is an updated urgent Crown development route. This will enable applications for nationally important developments that are needed urgently to be determined rapidly under a simplified procedure. Applications under the urgent route will be submitted to the Secretary of State for Housing, Communities and Local Government.
These new routes can be used for developments only where it is clearly justified. Provisions in the Levelling-up and Regeneration Act require that applications can be accepted by the Secretary of State only if she deems that the proposed development is of national importance and that it is urgent, in the case of the urgent Crown development route. I made a Written Ministerial Statement on 13 February which set out the principles under which national importance and urgency will be determined. Applicants are required when submitting an application to set out the reasons why they consider that the development is of national importance and, in the case of urgent Crown development, is needed as a matter of urgency.
I turn to the detail of the regulations. This is the first of a suite of statutory instruments needed to implement the Crown reforms. It makes amendments to primary legislation to reflect the two new Crown development routes. For instance, it amends references to planning permission set out in a range of different pieces of legislation. It also removes references to the previous urgent Crown development route in Section 293A of the Town and Country Planning Act, which now applies only in Wales. This instrument also sets the fee for an application for planning permission under both routes. This is the same as the fee that would have been paid to the local authority if the application had been submitted to it.
Following this statutory instrument coming into force, a further suite of statutory instruments will be made through the negative parliamentary procedure. These instruments will set the procedures for the two routes and make further consequential changes to secondary legislation in order to reflect the implementation of these routes. We have published these instruments in draft ahead of this debate to provide proper transparency on how the routes will operate.
Lord Young of Cookham (Con)
My Lords, I am very grateful to the Minister for her explanation. I have no difficulty at all with the thrust of this statutory instrument, but I have one or two queries.
Throughout her speech, the Minister referred to Crown development, but the Explanatory Memorandum says that this concerns
“planning permission for the development of Crown land”.
Does this apply only to development on land that the Government already own? Or, as the Minister said, is this about Crown development, possibly on land owned by other people or organisations? If I am right and this is confined to the development of Crown land, as the Explanatory Memorandum says on pages 1 and 3, is there a definition of “Crown land”? We are familiar with the Crown Estate but what exactly is Crown land?
Secondly, can the Minister give us some examples of the sorts of development that might be relevant to this statutory instrument? I understand the process that she described, but I did not get a picture of exactly when this would be used by the Government. It would be helpful if she could flesh that out.
Thirdly, this measure applies to development that is urgent and in the national interest or
“securing planning permission for nationally important and urgent Crown development”.
Is that justiciable? In other words, would it be possible to slow down the whole process if somebody came up and said, “This is a misuse of this statutory instrument. This is not nationally important or urgent”? In that case, the whole objective of this SI—to speed things up—could be nullified if the decision to use it was justiciable.
My final point is a petty one. I notice that, on pages 2 and 3, a whole lot of legislation is being amended. It is not clear to me why the Caravan Sites Act 1968, for example, has to be amended as a result of what we are doing in this SI. Is there some particular caravan site occupying a site of enormous national importance that might have to be used for the purpose of some giant infrastructure scheme? Looking at pages 2 and 3, one sees a whole series of pieces of legislation, and it is not absolutely clear why they all need to be amended to bring this SI into effect.
Lord Shipley (LD)
My Lords, I share the concerns of the noble Lord, Lord Young of Cookham, and I hope that the Minister will be able to respond satisfactorily to the points that he raised.
Reading the Explanatory Note, my question is: who decides whether an application for a development is “of national importance” or “a matter of urgency”? I assume that there is a proposal from a department, presumably from the relevant Minister, that then goes to the Secretary of State in the noble Baroness’s department, and that the final decision is made by the Secretary of State, but on the recommendation of the relevant department. I assume that this means that the relevant department cannot itself define that something is urgent and of national importance. I think I have concluded that it is both, but that the final decision will lie with the Secretary of State. For me, the vital question for the Minister to clarify is: will the public be able to object? The Minister talked about the need to try to ensure consultation with local people, but will local people be able to object to an application, or will the decision lie simply with the Secretary of State?
I noticed the Minister’s comments on scrutiny. I think she said that there will be full scrutiny of the use of powers, but paragraph 10.1 of the Explanatory Memorandum says:
“The instrument does not include a statutory review clause”,
and paragraph 10.2 says:
“The Ministry of Housing, Communities, and Local Government will monitor the overall effect of the implementation of the Crown Development and Urgent Crown Development routes for planning permission”.
It is not clear to me to what extent that will involve Parliament. I want to hear from the Minister that the monitoring review will be thorough and part of normal parliamentary procedures on matters of this kind.
Baroness Thornhill (LD)
I thank the Minister for her explanation of how we got from there to here; its clarity is welcome. I also thank the noble Lords, Lord Shipley and Lord Young of Cookham, for their forensic questioning, and I look forward to the Minister’s response. We on these Benches are in agreement that projects in the national interest, especially those deemed urgent, must and should be expedited as swiftly as possible. We are also in agreement that the present system has failed to deliver the improvements necessary to promote economic growth and improve the productivity of our vastly unequal regions.
Subsidiarity, a word we do not hear very often, cuts to the heart of this SI and the changes it introduces. Decisions must and should be taken at the most appropriate level, proportionate to the impact of the decision, which this SI attempts to do. Only time will tell whether it has been successful.
However, to me, this is a two-way street, with powers devolved down as well as taken up. It is nothing short of madness that when I was an elected mayor, I had to go through a four-year torment and two judicial reviews needing the Secretary of State’s approval—of which there were many during those four years—to be able to turn an allotment site into much-needed facilities for our local hospital. Conversely, it is also unacceptable that plans to build a third runway at Heathrow have been in discussion for decades. Evidence abounds that something needs to change and the system is failing. I am therefore interested in the Minister joining the dots for me as to how the new regional super-mayors will be involved in this process, given that the Government are also giving them greater planning powers.
We can also see how this joins up to the Government’s broader agenda. We have all lived through the Crown Estate Act and agree with its aims to use land—we look forward to the clarification mentioned by the noble Lord, Lord Young of Cookham—to create lasting and shared prosperity for the good of the nation as a whole. We can see how the SI is designed to drive through nationally significant projects at pace. However, the then Opposition, us included, were greatly concerned that such powers would be used only when necessary and with appropriate safeguards in place.
We will have to watch to see whether the safeguards and processes envisaged by these changes are effective, and whether the definition of “national importance” has been consistently applied and the criteria as laid out adhered to. Perhaps the Minister can give us some examples of what applications constitute a matter of urgency and warrant an expedited planning process.
Our overriding concern is the need for accountability and transparency. Can the Minister clarify what is envisaged—in the words of the Minister in the other place—to ensure that
“the House as a whole”
will have
“the opportunity to consider and scrutinise their general operation”?—[Official Report, Commons, 13/2/25; col. 33WS.]
Is this for each application or the generality of the process? To paraphrase my noble friend’s question, we would seek clarity on the review.
There are legitimate concerns around the erosion of local democracy—of not listening to local voices and their elected representatives. Can the Minister reassure us that all voices will be heard and consultation will be wide ranging, as appropriate to the application? I underline that phrase. Does the Minister agree that the undeniable right to be listened to and consulted does not confer a right of veto?
I am unconvinced that a retrospective annual report in the form of a letter of decisions taken, placed in both Libraries, fulfils the commitment to make sure this is scrutinised and accountable. We are looking forward to the changes to come in the context of the new Planning and Infrastructure Bill, which I am sure we are all eagerly looking forward to—or not. However, that is an argument for another day. We support this SI, with caveats on future scrutiny and transparency.
Lord Jamieson (Con)
My Lords, as usual I declare the fact that I am a current councillor in Central Bedfordshire. I thank the Minister for her explanation on the SI and the reasons behind it. Like my fellow noble Lords, I recognise that we need to get on with these major infrastructure projects. The noble Baroness, Lady Thornhill, gave the example of Heathrow, but one can also think of the Lower Thames Crossing, which I understand has received approval just today, after about 800 million pages of planning documents.
It is important that we do that, so in principle we support the need for the SI. The Minister has reiterated to us how important it is to get on with these things, but to do so by completely ignoring the public and the local planning process is a concern to this side of the House. We really want the assurance that it will be done only in exceptional circumstances and where speed is absolutely necessary. We recognise that the planning process is far from perfect; I too look forward to debating the Planning and Infrastructure Bill. This very much seems to be a mechanism to shoehorn through a process in a system that does not work. We really ought to look at making the system work.
I very much look forward to hearing the Minister’s comments on why it is so necessary to do that and her assurances on why it is necessary to circumvent local planning processes and local transparency. I also support the calls from fellow Peers that local involvement should be maintained and representations to the Minister should be still able to be made.
Baroness Taylor of Stevenage (Lab)
My Lords, this has been a helpful debate. As ever, our great experts on planning in the House contributed to a good discussion. I will, of course, attempt to answer all the questions. I am sure that noble Lords will pull me up if I do not if I do not answer them. I will, of course, check in Hansard afterwards and reply in writing on anything to which I have not responded to fully.
The noble Lords, Lord Young and Lord Shipley, asked who is able to apply for planning permission through these routes. Section 293 of the Town and Country Planning Act defines who is an applicant known as an appropriate authority for the purpose of applications under these routes. For example, this includes where land belongs to a government department or is held in trust for His Majesty for the purposes of a government department. That department is considered to be an appropriate authority. For land belonging to His Majesty in right of the Duchy of Lancaster, the Chancellor of the duchy is the appropriate authority and for land belonging to the Duchy of Cornwall, a person that the Duke of Cornwall appoints is the appropriate authority. So land that goes into any of those routes will be appropriate for this route.
The uses for Crown development and confirmation of which developments Crown development can be used for was the subject of the question asked by the noble Lord, Lord Young. I am sure that he will ask again if I have got that wrong. It will be for the Secretary of State to assess on a case-by-case basis what is deemed nationally important, and it would not be appropriate to comment now on specific schemes. However, it is likely that the Crown development route will be used most for HMG programmes relating to nationally important public service development. For example, this would include, but not be limited to, new prisons or border infrastructure. Traditionally, those things are difficult in the planning process. The route could also be used for defence-related development, as PINS is able to put in place special procedures to handle information dealing with matters of national security. Special provisions exist whereby the Secretary of State can issue a direction limiting the disclosure of information relating to matters of the security of a premises through Section 321 of the Town and Country Planning Act 1990. The Crown development route can also be used for particularly sensitive or significant development being brought forward by, or on behalf of, the Crown. We expect few applications to be submitted through this route every year. It is not going to be used all the time; it would be an exception.
In terms of urgent Crown development, again, it will be for the Secretary of State to assess on a case-by-case basis what is deemed nationally important and needed urgently. When I looked at the papers for this SI, the first thing that came to my mind was the time when, during Covid, we were getting desperately short of mortuary space. This is a bit of a morbid subject but, in the middle of a pandemic, it is vital that you think about that and you may want to have an urgent process to deal with that sort of thing.
It would not be appropriate for me to comment on specific schemes, but the urgent Crown development route is expected to be used very rarely, where other planning application routes just cannot be used to secure a decision quickly enough. The pandemic might have been one of those instances. It will be used only where development needs to be put in place quickly, in a matter of days or weeks, and where it is in the national interest—for things such as medical centres, the storage and distribution of key goods and services in the event of a pandemic or, potentially, mortuary space.
The noble Lord, Lord Shipley, asked who makes the decisions—he was correct in his assumption on that; I hope that that is helpful—and whether the public will be able to object. I will come to those issues in a moment.
The noble Lord asked about how national importance is defined. The Government are committed to a planning system in which decisions are made locally. However, it is a well-established principle that, in limited circumstances, it is necessary for the Secretary of State to make planning decisions where issues of more than local importance are involved. In general, the Secretary of State will consider a development to be of regional or national importance only if it would: involve the interests of national security or foreign Governments; contribute to the provision of national public services or infrastructure, such as prisons or border infrastructure; support a response to international, national or regional civil emergencies; or otherwise have significant economic, social or environmental effects and strong public interest. The applicant will have to set out, as part of a statement accompanying the application, evidence demonstrating that at least one of those principles has been met.
The noble Lord, Lord Shipley, asked how “urgency” is defined. The applicant will be required to provide a statement to accompany the application setting out why they consider that the development is both nationally important and needed as a matter of urgency. The Secretary of State will accept applications through the urgent development route only where the applicant can demonstrate that the proposed development is both of national importance and needed urgently. The applicant will need to demonstrate that the proposed development needs to be made operational in an accelerated timeframe and that it is unlikely to be feasible using other application routes, including the Crown development route, and will need to evidence the likely consequences of not securing a decision within the accelerated timeframe. I hope that that is helpful.
The noble Baroness, Lady Thornhill, asked me about mayoral powers and strategic planning. I share her pain, as any local councillor will, over the planning process. I will never get back the hours that I have spent in discussion about great crested newts and rare species of bats and insects, so I feel her pain on that. However, these reforms are for national and very urgent issues only.
On mayoral or strategic powers, the Crown reforms will affect the ability of combined or mayoral authorities to call in applications of potential strategic importance. The relevant combined authority will instead be consulted for development coming forward through the Crown development route, so it will be done at that strategic level.
In response to all noble Lords’ questions about how further information on this will be provided, we will publish updated planning practice guidance to reflect the new routes coming into force. We intend to publish the amended guidance closer to the implementation of the routes.
The noble Baroness, Lady Thornhill, asked about transparency. As I said, applicants need to demonstrate that the application is of national and urgent importance, and the Secretary of State can accept that application only if she considers that that is the case.
When a decision is made to accept an application, as I set out in my opening speech, a letter will be written to the MP whose constituency the development falls in and will be deposited in the Libraries of both Houses. Application documents will be available and applications to both routes will be determined on planning merits, with the reasons behind whether to grant or refuse set out in the inspector’s report or the Secretary of State’s decision letter. I hope that that is helpful.
In my opening speech, I set out in some detail how community engagement will work; the noble Lords, Lord Shipley and Lord Jamieson, raised it again. Of course, community engagement is very important. Any comments made during the consultation and publicity period that raise material planning matters will be taken into account as part of the decision-making process. The local planning authority will also have a role to play. It will need to place the application and documents on its planning register and, as PINS does not have a local presence, the local planning authority will be required to affix site notices during the mandatory publicity period and notify owners or occupiers who adjoin the site. So, for that purpose, it will work just the same as the local planning process.
Regarding urgent Crown development community engagement, as I said, we would encourage consultation with local communities, where possible. If it is possible to do meaningful engagement in a timeframe, we would encourage that. Where it is not possible, the Secretary of State should use alternative methods to make sure that community views can be taken into account.
The noble Lord, Lord Jamieson, talked about fixing the planning system; we hope we will be able to do that. Working very quickly, we have already managed a major consultation on the NPPF and published a revised version in December. Yesterday, the other House had a long debate on the Planning and Infrastructure Bill, which will come to this House shortly. My belief is that there will always be a need for an urgency procedure for decision-making in councils. There will always be a need for some kind of urgent process and for the Secretary of State to be able to make a decision on national grounds. I hope that that has answered all noble Lords’ questions.
Lord Young of Cookham (Con)
The Minister has been enormously helpful in answering the questions, but she did not touch on the question of whether a decision to use this route would be justiciable. She may not be able to answer that, but I assume that it would be.
The Minister mentioned the case of Covid and the mortuaries. As I understand it, this system can be used only where the Crown owns the land, so if it does not own the land, it will have to buy it before it can use this SI. If something is urgent but the Crown does not own the land on which the building is needed, I wonder whether the CPO will hold things up, or whether that can be part of a streamlined process.
Baroness Taylor of Stevenage (Lab)
I was assuming that it would be an application made on land already owned, but I will write to the noble Lord and set that out in further detail.
On his other point, my understanding is that all things are, technically, judicially reviewable, but I will find out the detail of that and set it out. Obviously, if we are going to put an urgent and national process in place, we want it to be able to speed through as quickly as possible, but, in the planning world, it would be most unusual for there to be no process of review should that be needed. I will get our planning team to check that for the noble Lord, and I will write to him with the exact details.
Lord Jamieson (Con)
I have a question; it is not dissimilar to the one from my noble friend Lord Young. As I understand it, from what the Minister has laid out, it will in essence be up to the Minister or Secretary of State to determine whether this is urgent, nationally significant and so on. My real question is: what constraints will there be on him or her in determining that? Where is the opportunity to challenge, review or assess? I know that the Minister is going to come back on the issue of judicial review. Clearly, we do not want to have an urgent process be bogged down by it for two or three years; however, we would want some constraint on it. So what process is in place to ensure that the Minister is not in a position to determine all of this by himself or herself?
Baroness Taylor of Stevenage (Lab)
I am grateful to the noble Lord for reiterating those points. I set out that there is a set of criteria deeming whether an application is of national importance. The applicant will need to say which of those criteria they are using to say that it is of national importance. The same applies to the urgent procedure: the applicant will need to demonstrate one of those criteria for it being urgent, and the Secretary of State will decide whether or not that is the case. Out of the criteria I set out, the applicant will need to demonstrate that at least one applies. That is how it is going to work. I will have to come back to noble Lords on whether it will be reviewable.
In conclusion, the two new routes for planning permission that we are seeking to implement are necessary and timely; all noble Lords agree with that, I think. These regulations represent a crucial step to their delivery. I hope that the Committee will welcome the regulations, which address this critical requirement for a proportionate planning procedure for nationally important Crown developments.