Planning and Infrastructure Bill

Lord Banner Excerpts

Committee stage
Thursday 17th July 2025 Lords Chamber

I have not had an opportunity to sit down with the Minister. One of the things that worries me at the moment is that I can hear Wes Streeting, quite rightly, wanting to move large parts of the health service out of hospitals and into communities and get upstream in the prevention agenda. We have been leading that agenda for 30-odd years. We have 55,000 patients nowadays and we know quite a bit about it. That is the right direction of travel; they are in the right space. But it is one thing to want it and another thing to do it. That aspiration in the health service is not connected with this conversation we are having. I am trying to have a conversation with the Minister about this—we all need to have this conversation. There is a real opportunity to join the dots here, but can we please have the conversation?

[Lord Banner (Con)]

My Lords, I declare my interest as a practising Silk in planning and environmental law, with a range of clients affected by planning regulation in various ways. I am a non-executive director of SAV Group, a property developer, and of Crossman Special Projects, a land promoter. I am the author of the independent review into legal challenges against NSIPs, which I will speak more on later in these proceedings.

I like purpose clauses in legislation. They are helpful because, in time, the courts will have to interpret the provisions of what will become the Act in due course, and if we do not spell out what the purpose is then the courts will have to define that. Surely it is far better to have a degree of parliamentary control in specifying what the purposes are. If that is to be done—it is not essential, but it is certainly nice to have—I certainly cannot improve on the amendment from the noble Baroness, Lady Pinnock, as proposed to be amended by the noble Lord, Lord Hunt, and my noble friend Lady Scott.

I have a degree of nervousness, however, about the Bill having its own purpose without there being an overall statutory purpose of planning, as is advocated by the Royal Town Planning Institute and proposed in Amendment 132 from the noble Baroness, Lady Bennett. I do not agree with all the wording of that, but that is not the point for today’s purposes.

The Bill, once enacted, will be part of the wider framework of planning Acts, of which there are many. If it has its own stated purpose but the purpose of planning is not stated, there is a risk of a potential mismatch. That could be remedied by having an overall purpose of planning, which would have a number of advantages. For example, in the context of the increased role of planning officers, they would have that guiding beacon, which may avoid undue pressure being placed on planning officers by elected members—something that does happen, and there is a risk that it may happen to a greater extent if some of the other provisions of the Bill find their way into law. I would advocate consideration of the RTPI proposal, as outlined in Amendment 132.

I emphatically agree with the noble Lord, Lord Hunt, about the need for proportionality. We have to put an end to the days of environmental statements being delivered by vans. No one will read them apart from the people who paid huge fees to produce them and review them—I declare a kind of interest in that respect too, of course. The EIA process is largely intended to help the public understand the environmental effects—it is consultation and taking into account the fruits of the consultation. No member of the public is going to read a lorry full of documents; it is simply not going to happen. Proportionality would be hugely helpful in that respect. There are recent instances of DCO examining inspectors asking 2,000-plus questions. I am sure that was with the best of intentions, but if we aim for perfection, we will not achieve anything.

[Lord Hunt of Kings Heath (Lab)]

My Lords, from the noble Lord’s experience, does he think it possible to legislate for regulators to use their common sense?

[Lord Banner (Con)]

I tried with my proportionality clause, which we will come to later in the proceedings. That is the best I can do so far; I am toying with tweaking it so that if it were to find its way on to the statute book, the Secretary of State would have the ability to publish statutory guidance on how to give effect to it. But, to echo what the noble Lord said before, if proportionality was spelled out in neon lights in legislation, it would send a message to everybody—consultees, consultants, applicants, decision-makers, the courts and the public—that less can be more. To my mind, that is a fundamental way of furthering the objectives of the Bill.

[Lord Ravensdale (CB)]

My Lords, I declare my interest as a chief engineer working for AtkinsRéalis.

I support what the noble Baroness, Lady Pinnock, and the noble Lord, Lord Hunt, have set out around the purposes of the Bill, and in particular what the noble Lord, Lord Hunt, said about putting growth front and centre.

It is important to set out a bit of broader context here, because this goes all the way back to 2008. In the decades before 2008, we had that consistent 2.3% labour productivity growth over many years, but since then, that productivity growth has fallen off a cliff, with only around 0.5% per annum growth since then. That then feeds through into flat real wages. Again, there was a 2% growth in real wages for decades, but they have been flat since 2008, which has led to all those problems with debt, tax take, the NHS, and even the political problems—the frustrations of those who have been left behind.

Of course, growth is a complex picture, as are the reasons behind that slowdown in growth, but our inability to build enough productive infrastructure to invest in that is very high up on that list, whether that is new infrastructure to bring down the price of electricity; new transport infrastructure, with all the agglomeration benefits that come with that; or new digital infrastructure.

We can contrast what is going on elsewhere in the world—to expand on what the noble Lord, Lord Hunt, said—with electricity. China has gone from 6,000 to 10,000 terawatt hours of electricity generation in the past 10 years, whereas our electricity generation has been flat or even declining slightly, at only around 300 terawatt hours. That of course has many other implications: the cost of our electricity, which is around four times that of the United States; the knock-on effects of that to inward investment; and circling back to growth as well. Even if we look at the Government’s targets, such as the 2030 target for clean electricity generation, the amount of electricity infrastructure that we need to build to hit that target is far below what we need to hit to get to 2030, and of course that will have effects on net zero and on energy security as well.

The planning system is at the heart of this, with the key issues of judicial review and environmental regulation, which are being addressed to some extent in the Bill. But, circling back to growth, that needs to be front and centre. It is vital that the Bill delivers for critical infrastructure as well as houses, so that purpose clause which sets that out front and centre in the Bill is vital, with all the benefits it will bring for net zero, the environment, and energy security, and resolving those broader issues of net debt, government spending and quality of life.

Planning and Infrastructure Bill

Lord Banner Excerpts

Committee stage
Thursday 17th July 2025 Lords Chamber

[Lord Mawson (CB)]

My Lords, I wish to say something about the housing regulator, because it is absolutely as the noble Lord, Lord Hunt, is saying. As I explained earlier, in our practical experience, we have built a very successful housing company with local residents, which is trying to join the dots between housing, education, health and placemaking. We find that the housing regulator is constantly getting in the way of the innovation that we, with local residents, need to do, which has local support and a serious track record.

This particular regulator—and I have seen it in other areas as well—is a real problem. There needs to be real thought and reflection about whether these regulators are helping us innovate and find new ways of working—or are they just getting in the way? Of course, they need to ask challenging questions on using the money right, I get all of that. We need to address these issues, as the noble Lord, Lord Hunt, is telling us. It is stopping us in east London doing what we now need to do to take our work to the next stage.

[Lord Banner (Con)]

I want to say something about what the noble Lord, Lord Hunt, said about the default risk aversion, and how there is a significant risk of that with regulators. There is a lot of merit in those comments. Largely, that stems from the application of the precautionary principle in much of the field of law that we are discussing now. Materially diluting the precautionary principle in a substantial way would have all sorts of troublesome consequences, but, in my judgment, some kind of counterbalance, which is what the proportionality principle is seeking to do, would help temper the effects of that. There is a later amendment in the noble Lord’s name which would seek to modify the precautionary principle in quite a sensible way. But I agree that something needs to be done to ensure that that over-precautionism does not infect the application of these provisions.

[Baroness Coffey (Con)]

My Lords, my Amendments 10 to 16 are in this group. These are more about Clause 2, so the officials decided to group them together.

On Amendment 8, I respect the former Minister’s experience, and probably frustrations, but, candidly, having represented a part of the country where there are probably more NSIPs than in any other constituency, I am very concerned that trying to make sure that there are enough resources and even officials to sufficiently go through these combinations of NSIPs, which, of course, are all considered separately, is really quite a stretch. I am also conscious of what was mentioned earlier, about the tens of thousands or hundreds of thousands of pieces of paper that were generated to go with a variety of planning applications.

I remind the Committee that it is Parliament that has agreed to a lot of this legislation. Parliament has agreed for Natural England, for example, to be the regulator and, in effect, the decision-maker on a number of these matters. It is also usually Ministers who have designated many parts of our country to have these special areas of conservation, or whatever variety of designations there are, which bring in the extra challenge. I completely understand the point about the reasonableness test and proportionality—I completely get that—and that is why the last Administration tried to make some changes, particularly to unlock about 160,000 homes, but also placed various duties in terms of thinking about economic growth. So, as I say, I understand why there are concerns about timing but if we are going to adjust that, we need to make sure that the resourcing is there as well.

Clause 2 is all about the parliamentary scrutiny of national policy statements. I expect that certain elements of the process could be speeded up, but there are key points in here which actually remove accountability to Parliament by the Executive. I had not realised this when I tabled Amendment 13 but I then checked some of the procedures in the Commons, and on Report there, the Liaison Committee—the chair of every single Select Committee in the House of Commons—co-signed Amendment 87 in the other place to remove this so that the Government would have to continue to give a response to Parliament on any resolutions they passed. I find it extraordinary that the Government want to remove that. It is quite a simple thing to lay a Statement, or whatever it is.

The assessment of Minister Pennycook was, “Well, we have a variety of debates; we might ask the Select Committee to look at something”—by the way, he did not refer to the Select Committee in the Lords—“and, yeah, we have these sorts of Statements”. Statements are quite different at the other end, but still, they are not proper debates—they are not proper consideration—and I am concerned about that.

One of my other amendments in this group follows on from something that happened with the first national policy statement on nuclear that I was engaged in. There was a debate in the other House, and I suspect there may have been a debate at this end too. Along the way, something changed in the process. It relied entirely on the Liaison Committee getting a Select Committee to look at something and send it back, so that the Government would then respond to say that, as a consequence of that, they were making all these changes, but it then never came back to the House. There was a process where you could do something once the Secretary of State had laid it, but for Back-Benchers there was no mechanism to get a debate on the final national policy statement—it was impossible. It could have been done in the name of the Government, but it was not done—they were a Conservative Government, so do not worry; I had a pop at them at the time.

I do not understand why, given that the impact of national policy statements is so huge, the Government are going further in removing a key part of parliamentary scrutiny. I genuinely hope that the Government will think again. I would have no problem if the Government had other ways of dealing with the timing but we have to remember—we see it more in this House, where we have a wider range of not just parties but Cross-Benchers, and until this Parliament that has not been the same at the other end—that it is not fair on minority parties, particularly those representing constituencies where such NSIPs are being proposed, to remove their opportunity to stand up and represent their communities on what the future impact might be of a number of national policy statements.

My other amendments are somewhat technical, regarding not wanting the effects to be retrospective and so on. I will not cover every minutia, but that is what they intend to do, and to get some clarity from the Government on what they are planning to do with the timing.

On the wider point, Amendment 16 is where I am trying to pull together some of the threads of what this Bill should be about: improving nature, improving the speed of infrastructure and increasing the number of homes. In its recent report, the Office for Environmental Protection said that it would like the Government to make it standard practice that, when dealing with new policies, they routinely produce, publish and consider assessments within departments. That is necessary, because every Minister is legally required to consider the correlation between their policies and those in the environmental principles policy statement. That is in law. There is no way in this House to do that, apart from through trust, to see how it works together. It matters that we work together on making this happen.

There are frustrations that people might have. I appreciate that there is a legal case at the moment about whether what is in the Bill is compliant and whether it will reduce the impact of environmental law. I am not getting into that. However, one thing Ministers can experience is external bodies issuing legal action. They start off with a pre-action protocol letter. Under that, there is a duty of candour on the Government to release lots of information that the Minister will have considered on whether they were being compliant with the law in how they addressed the matter. That is not available to Parliament. I want to make it available to Parliament. I had a debate with the clerks about whether we should use the words “duty of candour” or similar. In essence, when we are trying to scrutinise not only the role of the Executive but how legislation is being applied, it is fair to this House and the other House to have a basis of information so that if, for whatever reason, the Minister decides, “We’re not going to worry about that bit, but we’re doing that consciously because we believe there’s a greater good under various articles”, we can accept that but be transparent about it.

This comes up in a similar principle later, under planning applications—based, by the way, on something that the chief executive of Natural England said in evidence to the Environmental Audit Committee in the other place. What I am trying to do is get the cards on the table. Let us make sure the Environment Act 2021 and the targets in primary legislation are not all of a sudden ditched because of the rush to do X, Y and Z without this House or the other House knowing about it, so it can be challenged and potentially revised, and, if necessary, we can come forward with other amendments to legislation to make the Government comply with the law without waiting until whatever deadline it is, only for them to say, sorry, but they have not managed to do it.

--- Later in debate ---

Transparency must be at the forefront of this legislation, especially in the planning system, where significant public and private interests intersect. This amendment aligns with the broader aim of fostering trust between developers, regulators and communities. I therefore look forward to the Minister’s assurance that transparency in this process is being taken seriously and that unnecessary layers of bureaucracy will not hinder timely and fair decision-making. I beg to move.

[Lord Banner (Con)]

My Lords, I shall say a few words in support of this amendment. I can see it reducing the risk of judicial review. Quite often, not just in the planning context but in other contexts, where there is no duty to give reasons for a decision that is judicially reviewable, judicial review is the only way of teasing out the reasoning, at least in the pre-action process. Quite often, when judicial review is then commenced, the disclosure generates release of the ministerial submission, or whatever the advice may have been, on which the decision was based. If there were a duty to publish the reasons for non-acceptance of an application, it would enable the aggrieved would-be applicant to understand and take advice on the reasons without litigating. I can see that additional advantage to this proposed amendment, alongside the advantages that my noble friend Lady Scott just outlined.

[Baroness Pinnock (LD)]

My Lords, this is a very interesting amendment. In domestic planning applications, and commercial planning applications that are outside the infrastructure process, applications that are refused get a decision notice with a list of the reasons for refusal, which gives the developer the opportunity to review those and resubmit with relevant changes. This goes to the heart of the way the infrastructure application process works, in that we are now going to have a reduction in the pre-application process, and restricted examination in public; consequently, as the noble Lord, Lord Banner, says, the only resort will be to judicial review. The whole process for infrastructure applications needs a real rethink, in my view, because the pre-application stage will throw up some of the problems that the noble Baroness, Lady Scott, referenced, in terms of what might be the causes of refusal. She is quite right that for big infrastructure applications, reasons ought to be given for a rejection of the proposals.

Again, everyone here is anxious that critical infrastructure gets the go-ahead, but it must be given the go-ahead within the right framework of openness, consultation and listening to communities. At the minute, it seems that some of that framework is being removed and is going to be in the hands of the developers, come what may. I hope the Minister will give us some clues that the Government are going to change the process.

--- Later in debate ---

[Lord Berkeley (Lab)]

My Lords, my noble friend spent a lot of time complaining about the A303. The simple solution is to go by train.

My noble friend is quite right that the planning process takes a very long time. I spent many years trying to do it in relation to building the Channel Tunnel. It is a long time ago now, but we still had to go through the hybrid Bill process, which took quite a long time. My French opposite number kept asking me, “Why the hell are you taking so long to get permission?” I said that we had to go through Parliament and have several debates, Select Committees and things like that. I asked him how they did it so quickly in France, where they were taking six weeks and we were taking three years. He said, “Well, it’s quite simple. It’s a bit like Canada. If you want to go quickly, you don’t consult the frogs if you are draining the pond”. That sums it up.

My worry about these amendments is that the hybrid Bill process needs reviewing. There is a lot of work to be done to make sure that, whatever goes in its place, including my noble friend’s excellent amendments, achieves what it is trying to do, which is to balance the needs of not just the Government and industry but the public who they serve. We need much more information about how that would work before we can form a view.

Something that has not been mentioned much so far in this debate is the question of a business case and viability. It is fine pushing ahead with all these things, such as Sizewell B—or is it C?—because the Government have said they are a good idea, but they have not actually said they are going to fund them. The same could have applied to HS2, but that has gone further and got into a bigger mess. A proper business case needs to be produced for any of these projects, alongside the planning regime, so that we can all form a view about whether it is likely that these projects will go ahead or whether they will fall flat on their face, which would be the worst of all worlds.

I will be interested to hear what my noble friend the Minister says. Maybe there is something in these amendments that is worth looking at, but we have to accept that there are many people in this country who do not like change and who want to do JRs or some other way of opposing what is planned, and we have to respect them as well. I look forward to my noble friend’s comments.

[Lord Banner (Con)]

My Lords, it will probably already be apparent that in many respects the noble Lord, Lord Hunt, and I are in agreement about how the Bill can be made more effective, but on this group we are not yet quite aligned. I have a lot of sympathy with the intention behind Amendments 52 and 65 in particular, and I have immense respect for those behind the drafting. I myself wanted to go further when I was undertaking the review of legal challenges to M6, and I think it is important that I explain why I felt I could not, while I still need some convincing that it would be possible or sensible to go further.

When I did the review, I concluded that the evidence demonstrated that the overwhelming majority of judicial reviews of the M6 failed. It follows from this that the problem is not with the law, nor is it about “activist judges”, the term often used by some people about judges. It is about the time it takes for bad JRs to meet their doom. That is the problem, and to my mind the remedy for it is to shorten the judicial review process as much as possible. That is what my recommendations focused on, and I am told that Clause 12 in conjunction with the CPR changes—I have not been checking my emails so I still have not seen them—gives effect to those recommendations. That is what the changes would do.

To my mind, therefore, removing judicial review altogether, as things currently stand, would not achieve much more than a truncated JR process. For the really big stuff, the Heathrows and HS2s of this world, the system already allows for the JR process to be fast-tracked. The HS2 and Heathrow cases, both of which I was involved in, went from ground zero to the Supreme Court far quicker than normal cases—not much more than a year, in the HS2 case in particular.

The question then is: what are the downsides of going further, and does the relatively marginal benefit outweigh those downsides? In my view, the answer is no. There is a difficulty with ousters, whether done expressly through an ouster clause, which hardly ever works, or done in a more intelligent fashion than an express ouster, as the amendment from the noble Lord, Lord Hunt, does, essentially asking Parliament to endorse a DCO and thus giving it the benefit of parliamentary sovereignty. Most DCOs involve the compulsory purchase of land and/or the acquisition of individual rights. There is a real danger, if that approach is undertaken, that there will come a point—whether because someone was denied a hearing because there was a mistake or because someone involved in the decision-making process inadvertently failed to disclose an interest—where something goes wrong in a CPO context. A person whose land, maybe their home, is to be acquired—or there is to be some other fundamental interference with their rights—is, it is said, denied any possibility of correcting an obvious legal error.

In that scenario, there is a real danger that the untested working assumption that Parliament is sovereign—for there is no written tablet of stone saying that the Supreme Court cannot quash legislation—will be tested, and we will not get the right answer. Pandora’s box would be opened and the Supreme Court would quash the legislation in question, and once opened you would never be able to put it back in the box. The lessons from the USA Supreme Court tell us that it would not stop there. This building would no longer be the most important on Parliament Square; it would be the Supreme Court building. That would clearly be a fundamental constitutional change, and most people would regard it as unwelcome to our democracy.

I also have a degree of discomfort about what is fundamentally an executive process being essentially laundered by Parliament, as opposed to it being a legislative process from start to finish, as the HS2 and Crossrail hybrid Bill processes were. I do not want to rain on the noble Lord’s parade, and that of those behind this. As I said, I see a lot of merit in trying to go further, but once you realise that the adverse delaying effects of JR can be cut down very substantially, the question is: does going further risk the constitutional crisis that it may very well facilitate, bearing in mind the very severe consequences and implications of that?

On Amendment 47, I recommended that the single shot for cases totally without merit be an oral hearing—as opposed to a written procedure, which is what Amendment 47 covers—because we are dealing with something that interferes with people’s property rights and can take away someone’s home. To my mind, given that degree of interference in fundamental rights, the individuals in question ought to have the right to at least one hearing, even if it is a 30-minute JR permission hearing that declares a case to be totally without merit. There ought to be at least one day in court—otherwise, fundamental constitutional principles and the legitimacy of the process could be undermined. There is no doubt that we need to sharpen up planning and infrastructure, but, if at all humanly possible, we need to do it in a way that carries people with us as opposed to alienating people; that is the way to make the system work.

I am yet to be convinced, but I am willing to be convinced. Ultimately, it is not me that the noble Lord needs to convince but the Minister and her colleagues. For the reasons I have given, I have a degree of nervousness about these amendments.

[Lord Ravensdale (CB)]

My Lords, I do not have a huge amount to add to the comprehensive introduction provided by the noble Lord, Lord Hunt of Kings Heath, but I want to pick up on a few things related to the nuclear industry.

The noble Lord, Lord Hunt, mentioned the eight years from application to consent for Sizewell C. The Government, of course, have big ambitions for the nuclear rollout. Tomorrow I am chairing a board meeting of Midlands Nuclear—a partnership organisation for nuclear across the Midlands region. We are looking at where we can site nuclear power stations within the Midlands, and at small modular reactors and advanced reactors, all in coherence with the Government’s plans through EN-7—the new national policy statement for a more flexible siting approach for nuclear.

There are big ambitions for nuclear and for the industry, but, given the experience we have had with Hinkley, Sizewell and other large infrastructure, we have to be radical. We have to think of new ideas that are going to help speed infrastructure through the system. That is why the Government should take these suggestions from the noble Lord, Hunt of Kings Heath, very seriously. I note that a lot of the principles in Amendment 52—the noble Lord mentioned the tried and tested process within that—and Amendment 65 are similar to those in a law that is being rolled out in Canada. The Government should consider these amendments very seriously.

Planning and Infrastructure Bill

Lord Banner Excerpts

2nd reading
Wednesday 25th June 2025 Lords Chamber

[Lord Banner (Con)]

My Lords, I declare three interests: first, as a practising planning silk with a range of clients affected by planning and infrastructure law in different ways; secondly, as chair of the advisory committee of SAV, a developer, and director of Crossman Special Projects, a land promotion company; thirdly, Clause 12 of the Bill proposes to give legal effect to the recommendations of my independent review of legal challenges to nationally significant infrastructure projects that require primary legislation.

There is much to be welcomed in the Bill, particularly in Parts 1 and 2, and on the whole it is a step in the right direction. However, there are some missed opportunities. I hope the Government will listen to constructive proposals to improve it, and thereby further help its purpose of making the planning regime more efficient to deliver the housing and growth this country desperately needs.

I endorse the streamlining of the NSIP regime, in particular, unsurprisingly, Clause 12’s streamlining of the procedure for judicial review of NSIPs to cut down on delays caused by legal challenges. That is the only recommendation of my independent review that requires primary legislation to implement. The other recommendations require changes to the civil procedure rules, which are governed by the Civil Procedure Rule Committee. I would welcome clarification from the Minister of the anticipated timescale for implementing those other changes. My recommendations were put forward as one overall package, and it would be helpful to know when the rest of that package will be delivered. I would also welcome clarification of whether the changes to the CPR will be made in relation only to infrastructure judicial reviews or to judicial and statutory reviews in planning generally. My report looked only at infrastructure, but I do see merit—as do many others—in rolling out the reforms to cover planning reviews generally.

The reintroduction of strategic planning is a positive step. Previous experiments with extreme localism failed to appreciate that, at least in the world of planning, reliance on carrots alone without any stick is and always will be ineffective. Strategic direction is essential to make a dent in the massive nationwide shortfall in both market and affordable housing. I do not share the view of some on this side of the House that rural areas should be exempt from their fair share of delivering growth. In fact, my experience of planning inquiries promoting and indeed opposing housing in rural areas is that, when done well, it can provide a necessary and welcome boost to the local economy—the pubs, post offices, schools and so on. Without that boost, they wither away and die.

In the limited time I have, I turn to the improvements to the Bill that I would most like to see. First, an express general principle of proportionality in planning would give decision-makers, applicants, consultants and the courts reassurance that less can be more. It would also put an end to the days of environmental statements being delivered in lorries and DCO-examining inspectors asking over 2,000 written questions about a single project, both of which are real examples of the current default to prolixity that only clogs up the system and causes delay and additional cost.

The second improvement concerns the basic conditions for neighbourhood plans. Currently, neighbourhood plans do not have to conform with national policy: they must have regard to it, but, having done that, they do not need to conform with it. This presents a significant loophole in the drive for greater strategic direction. Well-resourced parish councils in the areas of greatest unaffordability can, contrary to national policy, unilaterally pull up the ladder by, for example, deeming there to be no grey belt in their area or restricting development in their area to less than is required by national policy. Mark my words, this is what will happen if the basic conditions stay as they are. A single-sentence amendment to the basic conditions would put paid to this by requiring neighbourhood plans to conform to the framework, thus putting them in their proper place within the hierarchy of plan-making.

The third improvement concerns providing a legislative solution to the difficulties presented by the Hillside judgment on the relationship between overlapping planning permissions on the same site, where later permissions are sought to modify a large multi-phase development. This is a technical point, and I cannot possibly do it justice in a short speech. I know the Minister is aware of this issue, because we have discussed it. It is a huge issue for multi-phase projects; it adds massively to their risk profile, their finance costs and their attractiveness to inward investment.

I echo the comments of noble Lord, Lord Lansley: there are a number of tools in the Levelling-up and Regeneration Act that have not yet been exercised. LURA inserted new Section 73B into the Town and Country Planning Act 1990, which went a modest way to addressing this issue by allowing for limited material amendments to planning permissions. Section 73B does not go far enough, but even that has not been commenced. I do not understand why, or why the Bill before the House could not go further and deal completely with the Hillside problems. It would make a real difference.

Fourthly, we have heard a lot about local authority resources but not very much about the Planning Inspectorate. The Planning Inspectorate is the keeper of the keys in relation to DCOs, local plans, spatial development strategies—when they come forward—and planning appeals. It is currently massively under-resourced. The inspectors are not paid enough, which is an issue in attracting the widest possible pool of people to that role. I have raised the issue of charging for planning appeals to raise money for PINS before, and I understand the block to it. There is a power to charge for appeals, but the block is that there is no ring-fencing, so if appeal fees were charged, they would go into the blob. The Bill includes ring-fencing for local authority fees, so why not put ring-fencing for the Planning Inspectorate in the Bill?

Lastly, I agree with the noble Lord, Lord Shipley, that the RTPI’s ask of statutory chief planning officers and a statutory purpose of planning would help buttress the national scheme of delegation by ensuring that officers are not unduly lent on. I support the scheme of delegation, provided that it is done properly. I appreciate that the consultation is live, but I suggest that we should see the detail before the Bill goes through. I urge the Government to consider these proposals with an open mind in Committee.

Housing: Modern Methods of Construction

Lord Banner Excerpts

Thursday 5th September 2024 Lords Chamber

[Lord Banner (Con)]

My Lords, I declare my interest as a King’s Counsel practising in planning law. I have many clients in the housebuilding and construction sector. I am also chair of the advisory group at the property developer SAV.

There is widespread recognition that MMC have a range of important benefits, including, in particular, faster and greener construction of the new homes this country desperately needs. It is therefore both curious and regrettable that this widespread recognition has not yet translated into widespread uptake. I draw attention to the role that the planning system could play in stimulating the critical mass of pipeline and demand necessary for the MMC market to flourish.

By that I do not mean greater planning regulation; there is arguably enough of that already. Instead, I encourage the Government to look to how the planning regime has encouraged greater uptake of custom and self-build housing in recent years, through a combination of legislative targets for local authorities to deliver specific levels of custom and self-build housing; a favourable planning policy climate for that kind of housing; and relief from the community infrastructure levy and VAT for those who develop them. Those measures are generally judged to have been successful in stimulating greater uptake of custom and self-build housing over the past decade. A similar package could help do the same for MMC.

There are also good reasons for inferring that variations between local authority development plans in relation to the standards required of new housing development are having a repressive effect on MMC, the business model of which requires greater consistency. National standards, for example, through national development management policies, may be a solution to this. Such ideas would need to be worked and consulted on thoroughly. The committee’s letter has flagged that there are significant gaps in the understanding of the MMC market, meaning that rushed solutions risk unintended consequences. But there is, in my view, undoubtedly a case to answer for the planning system playing a role, and I encourage the Government to consider it.

Impact of Environmental Regulations on Development (Built Environment Committee Report)

Lord Banner Excerpts

Friday 19th April 2024 Lords Chamber

[Lord Banner (Con) (Maiden Speech)]

My Lords, I am humbled to speak for the first time in the House today. I thank all the wonderful staff and noble friends who have, in time-honoured fashion, facilitated the process of settling me in. I want to mention in particular the doorkeepers for all the assistance they have given me so far, as well as my noble friends Lord Blencathra and Lord Wolfson of Tredegar for supporting me at my introduction.

This is not my first job in this House. In 2005, before embarking on private practice at the Bar, I spent 12 months here seconded as a judicial assistant to the Law Lords, as they then were, before the creation of the UK Supreme Court. I had the immense privilege of working for Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood. Both remained close friends and mentors of mine until their passing—in the case of Lord Brown, only last year. I am sure this House misses them greatly, as do I. An independent and respected judiciary, applying the rule of law, is fundamental to the operation of our democracy. That is the lesson I took from my first stint in this building, and one which I shall apply in my second.

Like my noble friend Lord Moylan, whose Motion this debate concerns, I am a Brummie, who ended up in west London. I grew up near Barnt Green, a charming village on the outskirts of Birmingham, where my mother still lives. I am proud to have Barnt Green as the territorial designation on my Letters Patent, although I must confess it was not a difficult choice between that and the other nearby village, Lickey End.

There is one other introductory matter that it would be remiss of me not to mention, and that is Ukraine. I am lucky enough to have a Ukrainian wife, Tetyana, who is here today and to whom I owe so much, and we are the proud parents of our two British-Ukrainian children. Our close family and friends include Ukrainian women and children, who are routinely bombarded in their homes and in their daily lives, and heroes risking their lives to defend their country. To them and all Ukrainians, I say this: I hope with all my heart that the UK, Europe and the United States will continue to support you tooth and nail against Russia’s repugnant war of aggression. Slava Ukraini.

I now turn to the subject matter of today’s debate. I have had some difficult briefs in my time at the Bar, but few have been as challenging as maintaining the convention that maiden speeches must be uncontroversial while also offering a meaningful contribution to a debate about the impact of environmental regulations on development.

I start with the easy bit: declaring an interest. As a King’s Counsel specialising in planning and environmental law, it will not surprise your Lordships to hear that I have acted and continue to act for many clients in relation to the impact of environmental regulations on development, including in relation to nutrient neutrality, which will be the focus of my observations today.

Most of those clients are developers and land promoters who have felt that the current level of environmental regulation of development is disproportionate and ineffective. That is not, however, my only perspective. Until last month, I was for six years a board member, and latterly interim chair, of the Joint Nature Conservation Committee, or JNCC, the UK-wide statutory nature conservation advisory body. Although work on nutrient neutrality is currently led by the statutory nature conservation bodies of the four component countries of the UK rather than by JNCC at a UK-wide level, my engagement in that role with Natural England’s leadership and that of the other statutory conservation bodies has helped me see things from their standpoints too.

It is with that rounded perspective that I seek to cut the Gordian knot of meaningfully contributing to a controversial subject in a speech that cannot itself be controversial. I propose to highlight five areas of apparent common ground which, if considered carefully by all stakeholders, might help provide some focus on how to solve the current stalemate.

First, everyone seems to agree that the status quo in relation to nutrient neutrality cannot continue. In the middle of a housing crisis, the building of new homes is subject to an effective moratorium in many parts of the country because of currently unachievable requirements for them to be nutrient neutral. In the middle of a nature crisis, the main causes of the nutrient pollution of river habitats—farming practices and water companies’ underinvestment in their infrastructure—continue to damage the environment.

Secondly, requiring developers to pay farmers to take land out of beneficial agricultural production, thus offsetting the nutrient generation of new development, is not the solution. It is unsustainable in every sense of the word to take productive agricultural land out of use. Moreover, a fundamental tenet of environmental law is “the polluter pays”, yet in this situation the polluter gets paid.

Thirdly, the long-term solutions plainly lie in improving agricultural practices and upgrading water infrastructure, but that will take time. The key question then is what can be done in the meantime to allow the much-needed housing to go ahead before the farming and water industries get their acts together. What quick wins can be achieved in the meantime to reduce phosphate levels in rivers and provide headroom for new development? An answer to this question must urgently be found.

Fourthly, as the committee’s excellent report makes clear, a joined-up approach across government is essential in finding a way to reconcile these considerations, which straddle the departmental responsibilities of DLUHC and Defra, as well as others. I suggest that there may be lessons that can be learned from previous Governments in which responsibility for both planning and environmental matters fell under the same departmental roof.

Finally, one of the most important things for the development industry is predictability. Land use regulation is called “planning” for a reason—the clue is in the name. Unplanned and sudden changes to rules and requirements undermine market and investor confidence. There appears to be broad consensus that the impact of nutrient neutrality requirements on the development sector has been significantly exacerbated by the lack of advance warning or consultation. Lessons can surely be learned about the need for fair notice of future environmental regulation of development.

There is not much more I can say within the limitations of this maiden speech, but I hope to make further contributions to the House’s consideration of these important issues in future.