English Devolution and Community Empowerment Bill

Lord Banner Excerpts

Report stage
Monday 13th April 2026 Lords Chamber

Moved by

[Lord Banner]

248: After Clause 63, insert the following new Clause—
“ChapterLand disposed of by local councilsDischarge of statutory trusts
Secretary of State to have power to discharge statutory trusts(1) LGA 1972 is amended in accordance with this section.(2) After section 128 (consents to land transactions by local authorities and protection of purchasers) insert—“Discharge of statutory trusts
128A Statutory trust discharge orders(1) The Secretary of State may make an order under this section in relation to land in England (a “statutory trust discharge order”). (2) The Secretary of State may not make a statutory trust discharge order in relation to land unless—(a) a person has applied to the Secretary of State for the statutory trust discharge order to be made in relation to the land, and(b) the Secretary of State is satisfied that the qualifying conditions are met (see section 128D).(3) The effect of an order being made in relation to land is that the land is freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with—(a) section 164 of the Public Health Act 1875 (pleasure grounds), or(b) section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds).(4) The order has that effect in relation to that land generally (and so its effect is not limited to that land as freehold or leasehold land as held by the applicant for the order).(5) The Secretary of State may, by regulations, make provision as to the making and determination of any application for a statutory trust discharge order.(6) Regulations under subsection (5) may in particular make provision as to—(a) the steps to be taken by a person before making an application;(b) the form of an application;(c) the information or evidence to be supplied with an application;(d) the publication of an application;(e) the holding of an inquiry before determination of an application;(f) the evidence to be taken into account in making a determination and the weight to be given to any evidence.(7) Regulations under subsection (5) may include provision for the Secretary of State to appoint a person to discharge any or all of the Secretary of State’s functions in relation to an application for a statutory trust discharge order.(8) The power under subsection (5) to make regulations includes power to make—(a) different provision for different cases;(b) incidental, supplementary or consequential provision;(c) transitional or saving provision.(9) A statutory instrument containing regulations under subsection (5) is subject to annulment in pursuance of a resolution of either House of Parliament.(10) Section 128G contains further provision about the making of statutory trust discharge orders.128B Applications for statutory trust discharge orders(1) A person making an application must have regard to any guidance issued by the Secretary of State (whether relating to how the application is made or to its form or content).(2) Qualifying condition B (see section 128D(3)) limits which kind of person is able to make a successful application.(3) An application may be varied after it has been made (and section 128A, this section, and sections 128D to 128G then apply to the application as varied). (4) The Secretary of State may require a person making an application to pay a fee before the Secretary of State considers the application (the “application fee”).(5) The application fee is to be of an amount specified in, or determined in accordance with, regulations made under section 128A(5).(6) The determination of an application for a statutory trust discharge order which relates to particular land does not prevent a further application from being made subsequently in relation to the same land.(7) But the Secretary of State may reject a further application if the Secretary of State considers that there has not been a material change in the circumstances relevant to the qualifying conditions.(8) If a further application is rejected, the Secretary of State must publish notice of the rejection in the manner which the Secretary of State considers appropriate.128C Applications where land has been divided up(1) This section applies where—(a) a principal council, parish council or parish meeting appropriated or disposed of land, and(b) the freehold or leasehold title to that land has subsequently been divided.(2) An application may be made in relation to the land comprised in any of the relevant titles.(3) A single joint application may be made in relation to the land comprised in two or more of the relevant titles, and, in the case of such an application, the question of whether the qualifying conditions are met must be decided separately in relation to the land comprised in each title.(4) For the purposes of this section—(a) a freehold title is “divided” if either or both of the following occurs—(i) the title is divided into two or more different freehold titles;(ii) a lease (including a sublease) is granted over some or all of the land comprised in the freehold title;(b) a leasehold title is “divided” if—(i) the title is divided into two or more different leasehold titles (for example by an assignment of part);(ii) a sublease (including a sublease that is not immediately inferior to the leasehold title) is granted over some or all of the land comprised in the leasehold title.(5) In this section “relevant title” means—(a) the freehold title to the whole or a part of the land appropriated or disposed of;(b) the title to a long lease of the whole or a part of the land appropriated or disposed of.128D The qualifying conditions(1) This section sets out the “qualifying conditions” (referred to in section 128A(2)(b)).(2) Qualifying condition A: the application for the statutory trust discharge order identifies land in England in relation to which the order is being sought.(3) Qualifying condition B: the applicant for the order is—(a) the freehold owner of the relevant land, or(b) the tenant of the relevant land under a long lease, whether granted before or after commencement,at the time of the application (whether or not by virtue of the previous appropriation or disposal). (4) Qualifying condition C: a principal council, parish council or parish meeting—(a) appropriated, or(b) disposed of,the relevant land at a time before the application for the statutory trust discharge order is made (the “previous appropriation or disposal”).(5) It does not matter whether the previous appropriation or disposal occurred before or after commencement.(6) Qualifying condition D: the previous advertisement procedure was not complied with in relation to the previous appropriation or disposal.(7) For the purposes of determining whether qualifying condition D is met—(a) it is sufficient that the previous advertisement procedure was not complied with;(b) accordingly, it is irrelevant—(i) whether the previous advertisement procedure in fact had to be complied with, or(ii) whether the land was in fact land held in trust for enjoyment by the public in accordance with a trust of the kind mentioned in section 128A(3).(8) Section 128F includes provision for presuming that the previous advertisement procedure was not complied with; and qualifying condition D must be taken to be met if that presumption is made.(9) Qualifying condition E: the new publicity requirements have been complied with.(10) Qualifying condition F: it is in the public interest for the relevant land to be freed from the trusts by virtue of the order.(11) The reference in subsection (10) to the public interest includes the public interest in—(a) nature conservation;(b) the conservation of the landscape;(c) the protection of public rights of access to the relevant land;(d) the protection of archaeological remains and features of historic interest;(e) development proposals relating to the relevant land;(f) economic, environmental or social benefits which the order would facilitate if made.128E The new publicity requirements(1) This section sets out the “new publicity requirements” (referred to in qualifying condition E in section 128D(9)).(2) The applicant must publish a notice of the application in four consecutive weeks—(a) in a local newspaper, and, if there are two or more local newspapers, it must be the main local newspaper;(b) if there is no local newspaper, either—(i) in a national newspaper, or(ii) on a website with a readership in the local area that is comparable to the readership of a local newspaper.(3) If—(a) a newspaper is published in print and on a website, and(b) it is possible to publish notices of the kind required by subsection (2) in both versions,a requirement under subsection (2) to publish a notice in the newspaper can only be complied with by publication of the notice in both versions. (4) If the applicant is a principal council, a parish council or parish trustees, they must also publish a notice of the application for a period of 28 days on their website (if they have one).(5) The applicant must display a notice of the application for a period of 28 days at the point of entry, or at the main points of entry, to the relevant land.(6) The Secretary of State must publish a notice of the application for a period of 28 days on the website, or main website, containing information about the Secretary of State’s department.(7) A notice under this section must identify the relevant land.(8) A notice under this section must—(a) state that a person who wishes to make representations about whether or not the order should be made may notify the Secretary of State of the representations, and(b) state the manner in which, and date by which, representations must be notified; and that date must be later than the last day of the period of 56 days beginning with the day when that notice is first published or displayed.(9) When publishing or displaying a notice under this section, the applicant must have regard to any guidance issued by the Secretary of State (whether relating to its publication or display or its form or content).(10) In this section—“local area” means area in which the relevant land is situated;“local newspaper” means a newspaper circulating in the local area.128F Previous advertisement procedure: co-operation by councils etc and presumption(1) This section applies if an application has been made to the Secretary of State for a statutory trust discharge order.(2) The Secretary of State must notify the relevant council or parish trustees of—(a) the application,(b) the relevant land, and(c) the information about the previous appropriation or disposal which the Secretary of State has as a result of the application.(3) Within the response period, the relevant council or parish trustees must give the Secretary of State—(a) notice which—(i) confirms that the previous advertisement procedure was complied with in relation to the previous appropriation or disposal,(ii) confirms that the previous advertisement procedure was not complied with in relation to the previous appropriation or disposal, or(iii) states that the relevant council or parish trustees are not able to confirm either of those things, and(b) any information relating to compliance, or non-compliance, with the previous advertisement procedure which the relevant council or parish trustees have.(4) If the relevant council or parish trustees—(a) give the Secretary of State a notice under subsection (3)(a)(iii) within the response period, or(b) do not give the Secretary of State any notice under subsection (3)(a) within the response period, the Secretary of State must presume that the previous advertisement procedure was not complied with in relation to the previous appropriation or disposal, unless the Secretary of State is satisfied that the procedure was complied with.(5) In this section— “relevant council or parish trustees” means—(a) in a case where a principal council undertook the previous appropriation or disposal, the principal council for the area where the relevant land is situated;(b) in a case where a parish council undertook the previous appropriation or disposal—(i) the parish council or parish trustees for the area where the relevant land is situated, or(ii) if the relevant land is no longer in the area of a parish, the principal council for the area where the relevant land is situated;(c) in a case where a parish meeting undertook the previous appropriation or disposal—(i) the parish trustees or parish council for the area where the relevant land is situated, or(ii) if the relevant land is no longer in the area of a parish, the principal council for the area where the relevant land is situated;“response period” , in relation to a notification given by the Secretary of State under subsection (2), means the period of 28 days beginning with the day on which the notice is received by the relevant council or parish trustees.128G Making statutory trust discharge orders(1) In deciding whether to make a statutory trust discharge order, the Secretary of State must take into account all matters that are relevant, including these matters—(a) whether, and how, the person making the application has had regard to the guidance issued by the Secretary of State under section 128B(1) and section 128E(9);(b) any representations about whether or not the order should be made that are notified to the Secretary of State (including any representations made by persons who are freehold owners, or tenants, of land comprised in the previous appropriation or disposal but who are not applying for the order).(2) A statutory trust discharge order may relate to only some of the relevant land specified in the application.(3) A statutory trust discharge order takes effect—(a) on the day after the day on which the order is made, or(b) if the order specifies a later day on which it is to take effect, on that day.(4) In relation to each application for a statutory trust discharge order, the Secretary of State—(a) must publish notice of the decision whether or not to make the order, and(b) if the order is made, must publish the order.(5) That notice, or the order, is to be published in the manner which the Secretary of State considers appropriate.128H Sections 128A to 128G: interpretation and application to the Crown(1) In sections 128A to 128G and this section—“application” means an application for a statutory trust discharge order;“commencement” means the coming into force of section (Secretary of State to have power to discharge statutory trusts) of the English Devolution and Community Empowerment Act 2025; “long lease” means a lease which was granted for a term of 20 years or longer;“new publicity requirements” has the meaning given in section 128E(1);“previous advertisement procedure” means whichever of the following applied to the previous appropriation or disposal—(a) the requirement to advertise notice of the intention to make the appropriation in accordance with—(i) section 122(2A) in the case of an appropriation by a principal council;(ii) section 126(4A) in the case of an appropriation by a parish council or parish meeting;(b) the requirement to advertise notice of the intention to make the disposal in accordance with—(i) section 123(2A) in the case of a disposal by a principal council;(ii) section 123(2A) as applied by section 127(2) in the case of a disposal by a parish council or parish meeting;“previous appropriation or disposal” has the meaning given in section 128D(4);“qualifying conditions” has the meaning given in section 128D(1);“relevant land” means the land identified in the application for a statutory trust discharge order as the land relation to which the order is being sought;“statutory trust discharge order” has the meaning given in section 128A(1).(2) A reference in sections 128A to 128G to the freehold owner, or the tenant under a long lease, is a reference to—(a) the Crown Estate Commissioners, if the freehold or long lease belongs to His Majesty in right of the Crown and forms part of the Crown Estate;(b) the government department having the management of the freehold or long lease, if it belongs to His Majesty in right of the Crown but does not form part of the Crown estate;(c) the government department concerned, if the freehold or long lease belongs to a government department or is held in trust for His Majesty for the purposes of a government department;(d) a person appointed by His Majesty in writing under the Royal Sign Manual, or if no such appointment is made the Secretary of State, if the freehold or long lease belongs to His Majesty in right of His private estates (which must be construed in accordance with section 1 of the Crown Private Estates Act 1862);(e) the Chancellor of the Duchy of Lancaster, if the freehold or long lease belongs to His Majesty in right of the Duchy of Lancaster;(f) a person appointed by the Duke of Cornwall, or the possessor for the time being of the Duchy of Cornwall, if the freehold or long lease belongs to the Duchy of Cornwall.”(3) In section 266(1) (orders which are to be made by statutory instrument), for “other than section 261 above” substitute “other than section 128A(1)”.”Member's explanatory statement
This amendment seeks to enable the Secretary of State to make an order in relation to land previously appropriated or disposed of by a council. The order would discharge the land from statutory trusts relating to open land that arise under section 164 of the Public Health Act 1875 or section 10 of the Open Spaces Act 1906.

--- Later in debate ---

[Lord Banner (Con)]

My Lords, Amendment 248 is in my name and in the names of the noble Lords, Lord Grabiner and Lord Pannick. Veterans of the early debates on this Bill and on the Planning and Infrastructure Bill last year will be more than familiar with the problem that this amendment seeks to address, but given the prospect of Divisions later and in light of the considerable misapprehensions that have been disseminated by opponents of the amendment, I need briefly to outline what it involves.

Open spaces held by a local authority under the Public Health Act 1875 or the Open Spaces Act 1906 are subject to a statutory trust in favour of the public being given the right to go on to that land for the purpose of recreation. The Local Government Act 1972 provides at Section 123(2A) that the local authority may not dispose of any such land until it advertises its intention to do so in a local newspaper for two weeks and considers any objections received in response to the advertisement. Where that process has been followed, Section 123(2B) provides that the sale of the land post-advertisement then proceeds free of the statutory trust. That is the existing law and there is no controversy about that.

Where the advertising requirements have not been followed, however, the effect of the Supreme Court’s judgment in a case called Day is that the statutory trust continues to exist after the land has been transferred, no matter how long ago that was and notwithstanding the absence of any challenge to the decision to dispose of the land, even if the purchaser was in good faith and was completely oblivious to the issue. Given that the advertising cannot currently be done retrospectively, the land is then permanently blighted by the trust and cannot be repurposed, no matter how strong the public interest in doing so. This issue is causing damaging uncertainty in relation to land purchased from local authorities in good faith, sometimes decades ago, even where the advertising may actually have been done, because in some cases the sale happened so long ago that the evidence about whether the land in question was properly advertised prior to the sale may no longer be readily available. This is holding up many developments across the country that already have planning permission.

The amendment has been wrongly characterised as being only about the high-profile Wimbledon case. That is untrue. Indeed, the All England Lawn Tennis Club recently won its High Court case concerning whether a statutory trust ever existed in the first place over land on which it has planning permission to expand. So, as things currently stand, the amendment is in fact academic for that case. It is, however, of real importance more widely.

The amendment would fill the gap in the current law in relation to any procedure to remedy the situation where the former open-space land has been disposed of without advertisement, and then is permanently blighted by a statutory trust, without there being any corrective mechanism available in the law. It would do so with the necessary safeguards to ensure that, before former open-space land could be released from such a trust, there was an open process in which the public could participate.

In summary, the freehold or leasehold owner of the land in question must apply for a statutory trust discharge order. The application would then be subject to publicity requirements, including site notice and advertising in the local newspaper for four consecutive weeks—double the existing provision for advertisement—which, if complied with at the time of the sale, would mean under the current law that the trust was already extinguished. That would remedy the original failure to advertise, meaning that there was no consultation deficit.

The four-week period having been followed, there would then be a public law decision as to whether or not it was in the public interest to discharge the trust, having regard to all comments received from members of the public, and indeed from any local authority in question that may respond to the consultation. There is provision for regulations that may provide for additional procedural safeguards, including the potential for a public inquiry in some cases if that was judged to be appropriate.

The safeguards would not simply be procedural; they would also be substantive. In deciding whether the public interest test was met, the Secretary of State must have regard to the following: nature conservation, the conservation of the landscape, the protection of public rights of access to the relevant land, the protection of archaeological remains and features of historic interests, development proposals relating to relevant land, and economic, environmental or social benefits that the order would facilitate if made. Only if, having had regard to all those considerations, the Secretary of State was rationally satisfied that it would be in the public interest to discharge any statutory trust may he legally do so. These safeguards would ensure that those statutory trusts that are otiose and serve to frustrate the public interest would no longer blight the land in question following the due process while maintaining any such trusts where there are justified social, environmental or other considerations.

Importantly, the amendment would leave untouched the substantive protections provided for by statutory open-space trusts. All it would do is provide a procedural mechanism for remedying a failure to advertise the disposal of such land.

It is also important to stress that the amendment would leave untouched the planning policy protections for open space. They are set out in paragraph 104 of the National Planning Policy Statement and I outlined them in Committee. It is very difficult to get planning permission under that policy for open-space land, even if it is currently disused and even if it is in private ownership.

Other substantive protections would also be unaffected, such as the law relating to national parks, commons and greens, and public access rights. Given that the substance of this range of protections would be unaffected by the amendment, there is no need for its coming into force or its operation to await or be affected by the promised review of open-space protections.

There are various amendments to my amendments. In the interests of politeness, I am not going to comment on any of them. I beg to move.

Amendments 248A to 248C (to Amendment 248) had been withdrawn from the Marshalled List.

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Amendment 250YW (to Amendment 248) not moved.

[Lord Banner (Con)]

My Lords, I agree with and endorse the comments of the noble Lords, Lord Grabiner, Lord Pannick and Lord O’Donnell, my noble friend Lord Fuller and the Minister in their responses to the various speeches opposing Amendment 248 or advancing amendments to it. I am very conscious of the hour but I have three short points in response to the noble Baroness, Lady Pinnock, who suggested that the advertising process may not be appropriate.

First, the principle of advertising is already enshrined in the existing law, as I outlined. It is sufficient to discharge trust if done at the time. There is no basis for criticising the principle of it. Secondly, it is not retrospective—that is wrong—as the statutory trust discharge order would be prospective. Thirdly, the noble Baroness asked what the consequences are. There is one consequence, which is to serve the public interest, for that is the test posed by the amendment.

I can reassure my noble friend Lord Lucas that I shall buy every single strawberry that I consume for the rest of my life. With all that in mind and for the reasons I have already given, I wish to test the opinion of the House on Amendment 248.

English Devolution and Community Empowerment Bill

Lord Banner Excerpts

Committee stage
Thursday 5th March 2026 Grand Committee

Moved by

[Lord Banner]

222C: After Clause 63, insert the following new Clause—
“Chapter 2ALand disposed of by local councilsDischarge of statutory trusts
Secretary of State to have power to discharge statutory trusts(1) LGA 1972 is amended in accordance with this section.(2) After section 128 insert—“Discharge of statutory trusts
128A Statutory trust discharge orders(1) The Secretary of State may make an order under this section in relation to land in England (a “statutory trust discharge order”).(2) The Secretary of State may not make a statutory trust discharge order in relation to land unless— (a) a person has applied to the Secretary of State for the statutory trust discharge order to be made in relation to the land, and(b) the Secretary of State is satisfied that the qualifying conditions are met (see section 128D).(3) The effect of an order being made in relation to land is that the land is freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with—(a) section 164 of the Public Health Act 1875 (pleasure grounds), or(b) section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds).(4) The order has that effect in relation to that land generally (and so its effect is not limited to that land as freehold or leasehold land as held by the applicant for the order).(5) The Secretary of State may, by regulations, make provision as to the making and determination of any application for a statutory trust discharge order.(6) Regulations under subsection (5) may in particular make provision as to—(a) the steps to be taken by a person before making an application;(b) the form of an application;(c) the information or evidence to be supplied with an application;(d) the publication of an application;(e) the holding of an inquiry before determination of an application;(f) the evidence to be taken into account in making a determination and the weight to be given to any evidence.(7) Regulations under subsection (5) may include provision for the Secretary of State to appoint a person to discharge any or all of the Secretary of State’s functions in relation to an application for a statutory trust discharge order.(8) The power under subsection (5) to make regulations includes power to make—(a) different provision for different cases;(b) incidental, supplementary or consequential provision;(c) transitional or saving provision.(9) A statutory instrument containing regulations under subsection (5) is subject to annulment in pursuance of a resolution of either House of Parliament.(10) Section 128G contains further provision about the making of statutory trust discharge orders.128B Applications for statutory trust discharge orders(1) A person making an application must have regard to any guidance issued by the Secretary of State (whether relating to how the application is made or to its form or content).(2) Qualifying condition B (see section 128D(3)) limits which kind of person is able to make a successful application.(3) An application may be varied after it has been made (and section 128A, this section, and sections 128D to 128G then apply to the application as varied).(4) The Secretary of State may require a person making an application to pay a fee before the Secretary of State considers the application (the “application fee”). (5) The application fee is to be of an amount specified in, or determined in accordance with, regulations made under section 128A(5).(6) The determination of an application for a statutory trust discharge order which relates to particular land does not prevent a further application from being made subsequently in relation to the same land.(7) But the Secretary of State may reject a further application if the Secretary of State considers that there has not been a material change in the circumstances relevant to the qualifying conditions.(8) If a further application is rejected, the Secretary of State must publish notice of the rejection in the manner which the Secretary of State considers appropriate.128C Applications where land has been divided up(1) This section applies where—(a) a principal council, parish council or parish meeting appropriated or disposed of land, and(b) the freehold or leasehold title to that land has subsequently been divided.(2) An application may be made in relation to the land comprised in any of the relevant titles.(3) A single joint application may be made in relation to the land comprised in two or more of the relevant titles; and, in the case of such an application, the question of whether the qualifying conditions are met must be decided separately in relation to the land comprised in each title.(4) For the purposes of this section—(a) a freehold title is “divided” if either or both of the following occurs—(i) the title is divided into two or more different freehold titles;(ii) a lease (including a sublease) is granted over some or all of the land comprised in the freehold title;(b) a leasehold title is “divided” if—(i) the title is divided into two or more different leasehold titles (for example by an assignment of part);(ii) a sublease (including a sublease that is not immediately inferior to the leasehold title) is granted over some or all of the land comprised in the leasehold title.(5) In this section “relevant title” means—(a) the freehold title to the whole or a part of the land appropriated or disposed of;(b) the title to a long lease of the whole or a part of the land appropriated or disposed of.128D The qualifying conditions(1) This section sets out the “qualifying conditions” (referred to in section 128A(2)(b)).(2) Qualifying condition A: the application for the statutory trust discharge order identifies land in England in relation to which the order is being sought.(3) Qualifying condition B: the applicant for the order is—(a) the freehold owner of the relevant land, or(b) the tenant of the relevant land under a long lease, whether granted before or after commencement,at the time of the application (whether or not by virtue of the previous appropriation or disposal).(4) Qualifying condition C: a principal council, parish council or parish meeting—(a) appropriated, or (b) disposed of,the relevant land at a time before the application for the statutory trust discharge order is made (the “previous appropriation or disposal”).(5) It does not matter whether the previous appropriation or disposal occurred before or after commencement.(6) Qualifying condition D: the previous advertisement procedure was not complied with in relation to the previous appropriation or disposal.(7) For the purposes of determining whether qualifying condition D is met—(a) it is sufficient that the previous advertisement procedure was not complied with;(b) accordingly, it is irrelevant—(i) whether the previous advertisement procedure in fact had to be complied with, or(ii) whether the land was in fact land held in trust for enjoyment by the public in accordance with a trust of the kind mentioned in section 128A(3).(8) Section 128F includes provision for presuming that the previous advertisement procedure was not complied with; and qualifying condition D must be taken to be met if that presumption is made.(9) Qualifying condition E: the new publicity requirements have been complied with.(10) Qualifying condition F: it is in the public interest for the relevant land to be freed from the trusts by virtue of the order.(11) The reference in subsection (10) to the public interest includes the public interest in—(a) nature conservation;(b) the conservation of the landscape;(c) the protection of public rights of access to the relevant land;(d) the protection of archaeological remains and features of historic interest;(e) development proposals relating to the relevant land;(f) economic, environmental or social benefits which the order would facilitate if made.128E The new publicity requirements(1) This section sets out the “new publicity requirements” (referred to in qualifying condition E in section 128D(9)).(2) The applicant must publish a notice of the application in four consecutive weeks—(a) in a local newspaper — and, if there are two or more local newspapers, it must be the main local newspaper;(b) if there is no local newspaper, either—(i) in a national newspaper, or(ii) on a website with a readership in the local area that is comparable to the readership of a local newspaper.(3) If—(a) a newspaper is published in print and on a website, and(b) it is possible to publish notices of the kind required by subsection (2) in both versions,a requirement under subsection (2) to publish a notice in the newspaper can only be complied with by publication of the notice in both versions.(4) If the applicant is a principal council, a parish council or parish trustees, they must also publish a notice of the application for a period of 28 days on their website (if they have one). (5) The applicant must display a notice of the application for a period of 28 days at the point of entry, or at the main points of entry, to the relevant land.(6) The Secretary of State must publish a notice of the application for a period of 28 days on the website, or main website, containing information about the Secretary of State’s department.(7) A notice under this section must identify the relevant land.(8) A notice under this section must—(a) state that a person who wishes to make representations about whether or not the order should be made may notify the Secretary of State of the representations, and(b) state the manner in which, and date by which, representations must be notified;and that date must be later than the last day of the period of 56 days beginning with the day when that notice is first published or displayed.(9) When publishing or displaying a notice under this section, the applicant must have regard to any guidance issued by the Secretary of State (whether relating to its publication or display or its form or content).(10) In this section—“local area” means area in which the relevant land is situated;“local newspaper” means a newspaper circulating in the local area.128F Previous advertisement procedure: co-operation by councils etc and presumption(1) This section applies if an application has been made to the Secretary of State for a statutory trust discharge order.(2) The Secretary of State must notify the relevant council or parish trustees of—(a) the application,(b) the relevant land, and(c) the information about the previous appropriation or disposal which the Secretary of State has as a result of the application.(3) Within the response period, the relevant council or parish trustees must give the Secretary of State—(a) notice which—(i) confirms that the previous advertisement procedure was complied with in relation to the previous appropriation or disposal,(ii) confirms that the previous advertisement procedure was not complied with in relation to the previous appropriation or disposal, or(iii) states that the relevant council or parish trustees are not able to confirm either of those things, and(b) any information relating to compliance, or non-compliance, with the previous advertisement procedure which the relevant council or parish trustees have.(4) If the relevant council or parish trustees—(a) give the Secretary of State a notice under subsection (3)(a)(iii) within the response period, or(b) do not give the Secretary of State any notice under subsection (3)(a) within the response period,the Secretary of State must presume that the previous advertisement procedure was not complied with in relation to the previous appropriation or disposal, unless the Secretary of State is satisfied that the procedure was complied with. (5) In this section—“relevant council or parish trustees” means—(a) in a case where a principal council undertook the previous appropriation or disposal, the principal council for the area where the relevant land is situated;(b) in a case where a parish council undertook the previous appropriation or disposal—(i) the parish council or parish trustees for the area where the relevant land is situated, or(ii) if the relevant land is no longer in the area of a parish, the principal council for the area where the relevant land is situated;(c) in a case where a parish meeting undertook the previous appropriation or disposal—(i) the parish trustees or parish council for the area where the relevant land is situated, or(ii) if the relevant land is no longer in the area of a parish, the principal council for the area where the relevant land is situated;“response period”, in relation to a notification given by the Secretary of State under subsection (2), means the period of 28 days beginning with the day on which the notice is received by the relevant council or parish trustees.128G Making statutory trust discharge orders(1) In deciding whether to make a statutory trust discharge order, the Secretary of State must take into account all matters that are relevant, including these matters—(a) whether, and how, the person making the application has had regard to the guidance issued by the Secretary of State under section 128B(1) and section 128E(9);(b) any representations about whether or not the order should be made that are notified to the Secretary of State (including any representations made by persons who are freehold owners, or tenants, of land comprised in the previous appropriation or disposal but who are not applying for the order).(2) A statutory trust discharge order may relate to only some of the relevant land specified in the application.(3) A statutory trust discharge order takes effect—(a) on the day after the day on which the order is made, or(b) if the order specifies a later day on which it is to take effect, on that day.(4) In relation to each application for a statutory trust discharge order, the Secretary of State—(a) must publish notice of the decision whether or not to make the order, and(b) if the order is made, must publish the order.(5) That notice, or the order, is to be published in the manner which the Secretary of State considers appropriate.128H Sections 128A to 128G: interpretation and application to the Crown(1) In sections 128A to 128G and this section—“application” means an application for a statutory trust discharge order;“commencement” means the coming into force of section (Secretary of State to have power to discharge statutory trusts) of the English Devolution and Community Empowerment Act 2025;“long lease” means a lease which was granted for a term of 20 years or longer; “new publicity requirements” has the meaning given in section 128E(1);“previous advertisement procedure” means whichever of the following applied to the previous appropriation or disposal—(a) the requirement to advertise notice of the intention to make the appropriation in accordance with—(i) section 122(2A) in the case of an appropriation by a principal council;(ii) section 126(4A) in the case of an appropriation by a parish council or parish meeting;(b) the requirement to advertise notice of the intention to make the disposal in accordance with—(i) section 123(2A) in the case of a disposal by a principal council;(ii) section 123(2A) as applied by section 127(2) in the case of a disposal by a parish council or parish meeting;“previous appropriation or disposal” has the meaning given in section 128D(4);“qualifying conditions” has the meaning given in section 128D(1);“relevant land” means the land identified in the application for a statutory trust discharge order as the land relation to which the order is being sought;“statutory trust discharge order” has the meaning given in section 128A(1).(2) A reference in sections 128A to 128G to the freehold owner, or the tenant under a long lease, is a reference to—(a) the Crown Estate Commissioners, if the freehold or long lease belongs to His Majesty in right of the Crown and forms part of the Crown Estate;(b) the government department having the management of the freehold or long lease, if it belongs to His Majesty in right of the Crown but does not form part of the Crown Estate;(c) the government department concerned, if the freehold or long lease belongs to a government department or is held in trust for His Majesty for the purposes of a government department;(d) a person appointed by His Majesty in writing under the Royal Sign Manual, or if no such appointment is made the Secretary of State, if the freehold or long lease belongs to His Majesty in right of His private estates (which must be construed in accordance with section 1 of the Crown Private Estates Act 1862);(e) the Chancellor of the Duchy of Lancaster, if the freehold or long lease belongs to His Majesty in right of the Duchy of Lancaster;(f) a person appointed by the Duke of Cornwall, or the possessor for the time being of the Duchy of Cornwall, if the freehold or long lease belongs to the Duchy of Cornwall.”(3) In section 266(1) (orders which are to be made by statutory instrument), for “other than section 261 above” substitute “other than section 128A”.”Member’s explanatory statement
This would enable the Secretary of State to make an order in relation to land previously appropriated or disposed of by a council. The order would discharge the land from statutory trusts relating to open land that arise under section 164 of the Public Health Act 1875 or section 10 of the Open Spaces Act 1906.

[Lord Banner (Con)]

My Lords, Amendment 222C is in my name and those of the noble Lords, Lord Grabiner and Lord Pannick. Noble Lords who participated in the House’s recent consideration of what was then the Planning and Infrastructure Bill will recall that we proposed an amendment to that Bill with a view to addressing the wide-reaching consequences for persons who acquire former public open-space land in light of a Supreme Court decision known as Day: R (on the application of Day) v Shropshire Council [2023] UKSC 8.

To recap, open spaces held by the local authority under the Public Health Act 1875 or the Open Spaces Act 1906 are subject to a statutory trust in favour of the public being given the right to go on to that land for the purpose of recreation. Section 123(2A) of the Local Government Act 1972 provides that the local authority may not dispose of any land consisting or forming part of an open space unless, before it does so, it advertises its intention to sell the land in the local newspaper for two weeks and then considers any objections received in response. Section 123(2B) provides that the sale of the land post-advertisement proceeds free of the statutory trust.

In the Day case, the Supreme Court held that, even when the decision to dispose of open-space land has not been challenged, and even when it was made many years or even decades in the past, a historic failure to comply with the advertisement requirements means that the statutory trust continues to exist and therefore continues to frustrate the beneficial repurposing or redevelopment of the land in question. Crucially, that is the case even if the land was sold in good faith by the local authority to a bona fide purchaser who was completely unaware of any procedural irregularity, even if there remains no dispute that the land was surplus to requirements when it was sold.

That is highly problematic; it means that the land that has been sold on the basis of an unchallenged decision that it is in the public interest to dispose of it—land that now has planning permission for beneficial reuse—is none the less permanently banned by the statutory trust and cannot be put to its intended beneficial use for which planning permission has been granted. Given that the advertising cannot be done retrospectively, the land may be blighted for ever.

This is causing considerable uncertainty in relation to land purchased in good faith from local authorities, sometimes decades ago. The evidence about whether the land in question had or had not been properly advertised prior to sale may no longer be readily available, particularly in historic cases. Land that may very well have been properly advertised is brought within the blight because of this issue, and this is holding up many developments across the country that already have planning permission.

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[Lord Lucas (Con)]

My Lords, I had not realised that the noble Baroness was so much in favour of this amendment. The noble Lord, Lord Grabiner, made reference to consultation. The provision for consultation in the amendment is exceptionally thin and ill-defined. There is nothing here that I would recognise as getting in among the community and finding out what they care about and want. There is no provision for that kind of depth of research, particularly in the context of the issue we are talking about in Wimbledon, where the interests of those who actually live there, as opposed to the neighbouring borough, seem to be ignored entirely. There is nothing in the wording of this amendment to suggest that that will not continue to be the case. If this is an amendment which is to be proceeded with on Report, we will have a large number of amendments to it and a long debate.

[Lord Banner (Con)]

My Lords, I am thankful for the comments and to all the contributors to this debate. I emphatically endorse the comments of the noble Lord, Lord Grabiner, that the issue this amendment presents is separate to the wider protections of parks and open spaces that are to be the subject of the review mentioned. The substantive content of the trusts in question, the protections they place on development spaces when the trusts are in force, are unaffected. The law in relation to registered parks and gardens, national parks et cetera are unaffected. Planning policy in relation to open spaces is unaffected. All those matters may be the subject of the future review.

This amendment concerns one issue alone, which is that the Local Government Act 1972 already allows for the relevant trusts to come to an end upon the sale of the land if there is advertisement of two weeks, which is half the level of advertisement that this amendment proposes for the context that we are dealing with. All that we are dealing with here is what happens either when the original sale was not advertised or the evidence is unclear as to whether it was. How do you rectify the situation? The answer is that you double the advertisement later. What possible complaint can there be that there is insufficient consultation of advertisement, when you get twice what the law already provides for to discharge the trust at the time?

[Lord Lucas (Con)]

I am sure my noble friend’s imagination is broader than that.

[Lord Banner (Con)]

Can I also clarify that this amendment is not just about Wimbledon, nor was the previous one? They were both fully ranging in relation to all such trusts in question. In light of that, while welcoming the Minister’s support in principle for the amendment, given that there is a degree of contention, I withdraw it now but will bring it back on Report.

Amendment 222C (in substitution for Amendment 221A) withdrawn.

Planning and Infrastructure Bill

Lord Banner Excerpts

Consideration of Commons amendments and / or reasons
Monday 24th November 2025 Lords Chamber

[Baroness Coffey (Con)]

My Lords, I thank the Minister for her comments on Motion G and assets of community value. I am conscious of the new Bill that will arrive here. I am also very grateful for the remarks of Minister Matthew Pennycook, as they recognise that this is an issue. I was elated when your Lordships voted for the amendment at the time, but I am conscious that some of these things can be done through secondary regulations. As a consequence, I shall not try to test anything further, but I look forward to the consultation coming forward shortly—genuinely shortly—as well, I hope, as some draft regulations at the same time. They are so easy that I have written them for the Government already through my first amendment. I hope that we can make progress so that I do not have to revisit this with a further amendment to the Bill that we will look forward to examining.

[Lord Banner (Con)]

My Lords, I, too, endorse Motion F. The national scheme of delegation has to strike the right balance between going far enough and not too far, which is not without difficulty. I urge the Minister and her officials to bear in mind the imperative of avoiding a proliferation of different thresholds. We have the national scheme of delegation thresholds; we have the 150 dwelling threshold announced a few days ago in relation to the exercise of potential haul-in powers to prevent refusals; and we also have coming down the line potential thresholds in relation to standardised Section 106. What I have been hearing from developers in the last few days is that the potential range and proliferation of thresholds—because we also have the EIA thresholds—make decision-making quite difficult in how to calibrate their developments, so the simpler it is, the better.

The Minister also mentioned the forthcoming NPPF consultation. Is she able to indicate when the final version of the new NPPF will be published? I appreciate that she cannot give a precise indication. There is anecdotal evidence that during the consultation on the last NPPF some applications were put on hold because applicants wanted to wait to see the final version. Indeed, there is some evidence that during the passage of this Bill some infrastructure projects have been put on hold so as to benefit from some of the streamlining, so the greater the clarity that can be provided as to how long—we hope that it will be fairly quickly—the post-consultation process will take to produce the new NPPF, the better.

[Baroness Pinnock (LD)]

My Lords, I thank the Minister for the positive engagement we have had during the Bill, where compromise has been reached on a number of very important issues. It shows that all the hours we have spent discussing and scrutinising the Bill have not been in vain. I am particularly grateful that the Government have seen the light over the requirement of the noble Lord, Lord Lansley, for an affirmative procedure on the national scheme of delegation. It is an issue on which we on these Benches supported the noble Lord, but we also tabled our own amendments, because we thought it was very important that the first iteration of the national scheme of delegation should be properly and fully scrutinised. We are really pleased that the Government have conceded on that issue.

Planning and Infrastructure Bill

Lord Banner Excerpts

Report stage
Monday 3rd November 2025 Lords Chamber

[Lord Roborough (Con)]

My Lords, Amendments 242 and 243 are in my name. The purpose of these amendments is simply to eliminate the ability of the Government to ignore hope value when assessing value on compulsory purchase orders. The Minister has kindly laid out in writing that this will happen only in limited circumstances and, by implication, that it is of little concern. That is wrong. In Committee, the noble Lord, Lord Cromwell, put it far more simply and elegantly than I when he said that hope value is actually market value. He is right. Other government departments accept this. When land is valued for inheritance tax or capital gains tax on non-financial transfers, hope value is explicit. Tax is paid on that hope value, so why should another government department be entitled to disregard it?

Under this Government’s family farm death tax, greater inheritance tax will be paid based on this hope value of land that might lift it, in certain circumstances, from around £10,000 per acre to as much as £50,000 per acre. What happens if the Government then turn around two years later and compulsorily purchase that land at £10,000 per acre because they want to disregard hope value? This is surely absurd; that hope value has not disappeared. The Government should pay for it.

This is a power of confiscation and, as my noble friend Lord Sandhurst is probing with Amendment 251, and as I raised at Second Reading and again in Committee, it is in breach of the European Convention on Human Rights. The Minister’s previous responses that the ECHR allows for CPOs is right, but it does not allow them at less than market value. His Majesty’s Government appear to put the ECHR on a pedestal; I am curious whether that is only when it suits them. CPO powers are, of course, essential to a modern Government carrying out their duties, but this cannot be a tyranny of the majority. The rights of the individual have to be respected.

Can the Minister assure us that, should she reject my amendments, CPO valuations will include all elements of market value attributed to that land under historic valuation parameters, as I believe the Red Book valuations already incorporate? I refer the House to my declaration of interests as a landowner, among other things.

[Lord Banner (Con)]

My Lords, Amendment 250 is in my name and those of the noble Lords, Lord Pannick and Lord Grabiner, who are unable to be here this evening but who continue to support it, and the noble Lord, Lord O’Donnell. This amendment would address the wide-reaching consequences for persons who acquire former open-space land in light of a Supreme Court decision in 2023, R (on the application of Day) v Shropshire Council [2023] UKSC 8. Given that this amendment has been misunderstood by some and mischaracterised by others, I need to explain what it is and is not about.

Open spaces held by a local authority under the Public Health Act 1875 or the Open Spaces Act 1906 are subject to a statutory trust in favour of the public being given the right to go on to that land for the purpose of recreation. Section 123(2A) of the Local Government Act 1972 provides that the local authority may not dispose of

“any land consisting or forming part of an open space”

unless before it does so it advertises its intention in a local newspaper for two weeks and considers any objections received in response to that advertisement. Section 123(2B) provides that the sale of the land post advertisement then proceeds free of the statutory trust.

If a local resident or community group considers that the disposal of land is unlawful for any reason, including but not limited to a failure to comply with the requirement to advertise, they have a remedy: they can bring a claim for judicial review of the local authority’s decision in the High Court. If they have good reason for bringing the claim late—for example, if they were not aware of the decision at the time it was made—they can draw the court’s attention to that in support of an application for a discretionary extension of time.

In public law, the normal position is that, if a public body’s decision has not been successfully challenged by way of judicial review, that decision is treated as having all the effects in law of a valid decision. However, in Day, the Supreme Court held that, even when the decision to dispose of open-space land has not been challenged, and even if it was made many years or even decades in the past, a historic failure to comply with the advertising requirements means that the statutory trust continues to exist, and therefore continues to frustrate the beneficial repurposing or redevelopment of the land in question.

Crucially, that is the case even if the land was sold in good faith by the authority to a bona fide purchaser who was completely unaware of any procedural irregularity, and even if there remains no dispute that the land was surplus to requirements when it was sold.

Planning and Infrastructure Bill

Lord Banner Excerpts

Report stage
Wednesday 29th October 2025 Lords Chamber

Moved by

[Lord Banner]

163A: Clause 66, page 101, line 39, leave out “, at any time before development commences,”
Member’s explanatory statement
This amendment would enable developers to use an EDP after development commences, for example, in cases of applications for alteration of planning conditions, planning applications for developments already carried out or applications for changes to a planning permission.

Planning and Infrastructure Bill

Lord Banner Excerpts

Report stage
Monday 27th October 2025 Lords Chamber

Moved by

[Lord Banner]

103: After Clause 52, insert the following new Clause—
“Principle of proportionality in planning(1) The principle of proportionality in planning shall apply to—(a) applications for any permission, consent, or other approval within the scope of the Planning Acts, including the supporting evidence base,(b) environmental impact assessment and habitats assessment,(c) the exercise of any functions within the scope of the Planning Acts, including but not limited to procedural and substantive decision-making (by local planning authorities, the Planning Inspectorate and the Secretary of State), and the preparation and provision of consultation responses (by statutory and non-statutory consultees), and(d) the determination by the Courts of claims for judicial and statutory review.(2) Applications for any permission, consent or other approval within the scope of the Planning Acts, and appeals against the refusal or non-determination of such applications, must be determined in accordance with the principle of proportionality in planning.(3) So far as it is possible to do so, the Planning Acts and any secondary legislation enacted pursuant to them must be read and given effect in a way which is compatible with the principle of proportionality in planning.(4) The principle of proportionality in planning means that the nature and extent of information and evidence required to inform the determination of any permission, consent, or other approval within the scope of the Planning Acts shall be proportionate to the issues requiring determination, having regard to decisions already made (whether in the plan-making or development control context) and the extent to which those issues will or can be made subject to future regulation (whether by way of planning conditions and obligations, or other regulation whether or not pursuant to the Planning Acts).(5) The Secretary of State may publish guidance on how the principle of proportionality in planning is to be applied.(6) The principle of proportionality in planning must not be interpreted as affecting existing requirements for local planning authorities to justify the refusal or withholding of planning permission.(7) In this section the term “Planning Acts” includes—(a) all primary legislation relating to planning prevailing at the time of the relevant application, decision or exercise of functions; and(b) any secondary legislation relating to planning, environmental impact assessment or habitats assessment.”Member's explanatory statement
This amendment introduces a principle of proportionality in planning to give decision-makers, applicants, consultees and the Courts confidence that less can be more, so as to facilitate more focused decision-making and more effective public participation.

[Lord Banner (Con)]

My Lords, Amendment 103 concerns the principle of proportionality in planning. It was debated last week, and I have considered carefully the Minister’s comments. Notwithstanding those, I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Banner]

105: After Clause 52, insert the following new Clause—
“Relationship between overlapping permissionsAfter section 73A of the Town and Country Planning Act 1990 (planning permission for development already carried out), insert—“73AA Relationship between overlapping permissions(1) Where there is more than one planning permission which relates to some or all of the same land, the lawfulness of both past and future development carried out pursuant to one of those planning permissions shall be unaffected by the carrying out of development pursuant to another of those planning permissions, except to the extent expressly stated in any of those permissions or in any obligation under section 106 of this Act (planning obligations) related to any of those permissions.(2) Subsection (1) applies only where one of the relevant planning permissions was granted after the day on which the Planning and Infrastructure Act 2025 is passed.(3) In this section “planning permission” means—(a) a planning permission under Part 3 of this Act, and(b) a planning permission granted by article 3 (permitted development) of the Town and Country Planning (General Permitted Development) Order 2015 (S.I. 2015/596).””Member's explanatory statement
This amendment addresses the potentially deleterious implications of the Supreme Court’s judgment in the Hillside Parks case.

[Lord Banner (Con)]

My Lords, as I said in Committee, there is a compelling and universally acknowledged need for a legislative solution to address the difficulties that large, multi-phase development projects face in the light of the Supreme Court’s judgment in the Hillside Parks case. This is a technical issue of such fundamental importance that—dare I say it?—it should not be being debated at this time of the evening. The Supreme Court held in Hillside that where there were one or more overlapping permissions relating to the same site, the implementation of the later permission could jeopardise the ability to rely on the earlier permission, even when the later permission was designed and granted on the basis that it would operate in conjunction with the earlier permission. I make no criticism of the Supreme Court’s analysis of the existing legal position, but it is a deeply unsatisfactory position that is recognised as such by everybody in the development sector.

Large multi-stage developments almost always evolve during their build-out, which typically takes several years and sometimes decades. For example, in a large urban regeneration scheme the site-wide permission might envisage offices coming forward on one of the later phases, only for there to be no demand for new offices by the time we get to that phase because of a change in working patterns due, say, to Covid. Reapplying for planning permission for the whole development is impractical for a variety of reasons, such as the need to re-appraise the whole scheme—even the bits that are already built and the bits that are not proposed to be changed—new ecological surveys, new environmental assessment, reassessment of Section 106 contributions, et cetera. This is all incredibly cumbersome and can take years.

It has therefore long been industry practice for developers in this situation to make a localised application, typically called a standalone or drop-in planning permission, seeking the local planning authority’s consent to change one aspect of development—for example, in the illustration that I gave, swapping out the offices for a hotel. The hotel would then come forward under the drop-in permission and the rest of the development would continue to be built out under the original site-wide permission.

The effect of the Supreme Court’s judgment is to introduce very considerable risk and uncertainty in such circumstances because it can mean that implementing the drop-in on the focused area where it is intended to take effect can invalidate the site-wide permission, even though the drop-in has been granted on the basis that it would operate as an amendment to the original scheme. As I explained in Committee, this issue affects huge numbers of developments across the country. While there are sometimes workarounds, they are incomplete, risky, costly, time-consuming and cumbersome.

I know from what was said in Committee and from discussions that the Government accept the principle of a legislative solution to Hillside. It is a no-brainer. They have indicated that officials have expressed some concern with the wording of my original Amendment 105, although they have not articulated what that concern is. This is despite the amendment being drafted largely by Catherine Howard, a partner at Herbert Smith Freehills Kramer who is now the Chancellor’s planning adviser. As a result, I tabled a new amendment, Amendment 113, which seeks to confer an enabling power on the Secretary of State to bring forward regulations to deal with this issue. The regulations would be subject to the affirmative procedure to avoid any concerns about lack of parliamentary scrutiny over the final form of words. It would enshrine the principle, which everybody accepts, and leave the wording to be worked out later with parliamentary scrutiny. What is not to like about that? The two have been packaged together, so one vote will resolve the two.

There has been ongoing engagement with the Minister and her colleagues on this issue, but the Government’s stance has been to say that they will work towards a future legislative solution and in the meantime bring into effect Section 73B of the Town and Country Planning Act 1990 under the last Government’s Levelling-up and Regeneration Act. That is simply not good enough. Addressing Hillside is the single most pressing unresolved issue that the development sector would like to see resolved by this Bill. Speaking as somebody who works day to day in the planning and development sector, this is the amendment everybody is watching. There are people here in this Chamber tonight watching, and people watching online. This is the one that matters.

Section 73B is no panacea; it is far from that. It would allow only quite limited amendments to planning permissions. Its scope is narrow, and it would assist in no more than a third of cases currently affected by Hillside. More is needed. In saying that it will be looked at in a future legislative solution—whenever that would be—beyond Section 73B, the Government clearly accept that further legislation beyond Section 73B is required; otherwise, they would stop at that. No, we are told that it will be looked at in the future—but just not now. An enabling provision would allow for the detailed drafting to be worked up. Therefore, any concerns about the drafting of Amendment 105 do not affect the principle of these amendments.

This is the second piece of planning legislation since the Supreme Court’s judgment in 2022. There was LURA in 2023, and my noble friend Lord Lansley, whose name is also on this amendment, sought to persuade the House on that occasion that a fuller amendment to deal with Hillside should be brought forward. The industry expects Parliament to step up on this second time of asking and not kick the can down the road again. The industry also expects proper consideration of this amendment. It is a late hour, and about 15% of the House is here right now. I respectfully invite the Minister to provide an assurance that we can bring this back at Third Reading as an alternative to a Division at this late hour, when many people who have a legitimate interest in this matter are not able to be here. Mañana is not an option: we need to do much better than that. Unless I have the assurance that I request, I am inclined to test the opinion of the House, despite this late hour.

I beg to move.

[Lord Wigley (PC)]

My Lords, I will speak very briefly on this, because the Hillside case arose in Merioneth in 1967, where I happened to be the parliamentary candidate in the 1970 election. I remember the considerable controversy there was about the application for 400 houses to be built in the vicinity of Aberdyfi, a scheme that was totally out of proportion to the nature of the community and the village there. It is not surprising that the thing did not go ahead, and it should not have gone ahead.

I assume that what the noble Lord who moved this amendment is seeking is clarity for the sake of the development industry for the future, not any revisiting of the Hillside case itself. In fact, what happened there was that some 41 houses were built, but the rest of the 400 houses were not pursued. The 41 houses that were built were built to planning specifications different to those that had been in the original case. In other words, there were all sorts of complications arising in the Hillside case.

There is also the fact that the Welsh Senedd has powers over planning and has its own rules in the 2015 legislation that it brought through, which brings another dimension in. Therefore, all I seek tonight is to know that, in moving this amendment, the intention is not to be revisiting the Aberdyfi case, which would cause an outrage, but rather to get clarity in the light of the court case, which, of course, I perfectly well understand.

--- Later in debate ---

[Baroness Taylor of Stevenage (Lab)]

My Lords, I hesitate to step into this very knotty lawyer’s wrangle, but it is necessary to do so because our common aim across the House is to sort out Hillside. We all know why we need to do that. As the noble Lord, Lord Banner, said, it is symbolic of all the issues that we are trying to get out of the way so that we can get on with the development that this country needs.

I thank the noble Lord, Lord Banner, for tabling Amendment 105—a repeat of his amendment from Committee that seeks to overturn the Hillside judgment—and for his new Amendment 113, which responds to some very constructive discussions we have had since Committee.

As I said in Committee, we recognise that the Hillside judgment, which confirmed long-established planning case law, has caused real issues with the development industry. In particular, it has cast doubt on the informal practice of using “drop in” permissions to deal with change to large-scale developments that could build out over quite long periods—10 to 20 years.

We have listened carefully to views across the House on this matter, and I appreciate the thoughts of all noble Lords who have spoken in this useful debate. One seasoned planning law commentator—I do not think it was the noble Lord, Lord Banner, or the noble Lord, Lord Carlile—called Hillside a “gnarly issue”, and it has attracted a lot of legal attention. It is very important that we tread carefully but also that we move as quickly as we can on this.

Therefore, in response to the concerns, the Government propose a two-step approach to dealing with Hillside. First, we will implement the provisions from the Levelling-up and Regeneration Act for a new, more comprehensive route to vary planning permissions—Section 73B. In practice, we want this new route to replace Section 73 as the key means for varying permissions, given that Section 73 has its own limitations, which case law has also highlighted. The use of Section 73B will provide an alternative mechanism to drop-in permissions for many large-scale developments—although we recognise not all.

Secondly, we will explore with the sector the merits of putting drop-in permissions on a statutory footing to provide a further alternative. This approach will enable provision to be made to make lawful the continued carrying out of development under the original permission for the large development, addressing the Hillside issue. It will also enable some of the other legal issues with drop-in permissions to be resolved.

In implementing Section 73B and exploring a statutory role for drop-in permissions to deal with change to large-scale developments, I emphasise that we do not want these routes to be used to water down important public benefits from large-scale development, such as the level of affordable housing agreed at the time of the original planning permission. They are about dealing with legitimate variations in a pragmatic way in response to changing circumstances over time.

Amendment 113 seeks to provide an enabling power to address Hillside through affirmative secondary legislation. I recognise that this provision is intended to enable the Government to have continued discussions with the sector and then work up a feasible legislative solution through the regulations. As with all enabling powers, the key issue is whether the provisions are broad enough to deal with the issues likely to emerge from these discussions, as hinted at by the noble Lord, Lord Lansley.

Based on the current drafting, this enabling power would not do that. For instance, there have been calls to deal with Hillside in relation to NSIP projects. That would require a wider scope, so we cannot accept the amendment without significant modifications. That is why we think it is best to explore putting drop-in permissions on a statutory footing first and then drawing up the legislation. This will give Parliament time to scrutinise.

To conclude, I hope that the approach I have set out addresses many of the concerns expressed in this debate. I ask the noble Lord not to press his amendments.

[Lord Banner (Con)]

My Lords, in response to the noble Lords, Lord Wigley and Lord Carlile, I will start by clarifying that this is not about the facts of Hillside. That case is dead; fought and lost. This is about the principle.

I am pleased to hear the Minister reiterate the point that it is the common aim of the Government and those of us on this side of the House to resolve Hillside. However, in light of that common aim, I find it baffling that the Government do not take what, as the noble Lord, Lord Carlile indicated, is on the silver tray: the enabling power to deal with this.

Dealing with the two-step approach, Section 73B is extremely limited. It is not going to resolve anything like the lion’s share of cases that have Hillside issues. In relation to the suggestion that future statutory provision may be brought forward to deal with Hillside, well, by which Bill? There are all sorts of briefings and counter-rumours and rumours about the planning Act. One even suggested that I was going to write it. If I were, Hillside would be in it, but I have not been commissioned to write it. Clearly, in the absence of any certainty on the timescale, once again we are kicking the can down the road. The kinds of detailed legal points, such as whether NSIPs should apply, are precisely the kind of things that could be resolved between now and Third Reading. The Prime Minister said that the Government’s aim was to back the builders and not the blockers. I would like to see which Members of this House back the builders and which back the blockers, so I would like to test the opinion of this House.

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Report stage
Monday 27th October 2025 Lords Chamber

[Baroness Coffey (Con)]

My Lords, this amendment is about consideration of an EDP by a local council. As I referred to on a previous group of amendments including an amendment in my name, because we have not gone to the full consideration of an EDP, it is not my intention to press this amendment later. This is effectively giving substance to what the chief executive of Natural England said to the Commons Committee considering this Bill, which was that if a council was not content with how an EDP was delivering, it would not have to give planning permission, but that is not expressed anywhere else in the Bill. That said, as we are yet to get properly to Part 3, I will reserve my judgment about whether to return to this another time. I beg to move.

[Lord Banner (Con)]

I shall speak to Amendments 163A and 163B, tabled in my name. These seek to ensure that the nature restoration fund is properly aligned with the planning process and, in particular, that it is capable of supporting the larger and more complex developments. It is my view that the current drafting of Clause 66 risks preventing some of the larger, more complicated schemes from using an environmental delivery plan. These kinds of larger, more complicated developments often evolve after the development has started. We will hear more about this on Hillside, at whatever ungodly hour we get to it. For example, outline permission may be granted, but a developer may subsequently seek to change the planning conditions attached to the permission. There may be amendments to other aspects of the development under Section 96A or otherwise. It may also be the case that larger developments need to apply for retrospective planning permission after development has commenced to regularise the development when it has been built differently to the permission.

In its current form, Clause 66 allows developers to request to use an EDP only before development has commenced—a single snapshot in time. While I can understand why it was drafted in that way, inadvertently, it seems to me, it risks limiting the NRF by failing to accommodate the possibility of ever-evolving development schemes. If the Government are going to deliver their growth and housing targets, I assume that they would want to ensure that the NRF could support the full range of development projects, particularly given that the larger ones tend to have the greatest tendency to evolve during their often decades-long and certainly years-long lifetimes.

Amendment 163A would not require Natural England to accept such a development but would allow the design of EDPs to accommodate these scenarios where appropriate. Amendment 163B similarly does not require Natural England to accept a request from a promoter of such development to pay the levy, but it makes clear that deciding whether to accept it is guided by the Secretary of State’s policy on the matter. I encourage the Government to consider this amendment in the spirit in which it is tabled, to ensure the proper functioning of legislation and help the nature restoration fund to navigate the complexities of the planning system.

[Earl Russell (LD)]

My Lords, in this group of amendments on the EDP consultation process, we are broadly in support of Amendment 87, tabled by the noble Baroness, Lady Coffey. We appreciate Amendments 163 and 163B, tabled by the noble Lord, Lord Banner, but we have rather more care in relation to these and will ask some questions about them.

Amendment 87 strikes us as a sensible and necessary clarification, seeking to require local planning authorities to have regard to an EDP relevant to the land in question. It closes an important procedural loop between the Bill’s new environmental mechanisms and the Town and Country Planning Act. I will move on to the other amendments, as I do not think that Amendment 87 will be pushed to a vote.

With Amendment 163A, we are entering more complex territory. Having listened to the noble Lord’s speech, I know that his amendment is intended in relation only to large developments. However, this amendment seeks to allow developers to use an EDP after development has commenced. This is a fundamental change to how the Bill was originally drafted. Although this amendment and the next one are short, they would have profound impacts on the nature of the Bill and the reasoning behind it. Given the late stage that we find ourselves in, it is worth treating these amendments with a degree of cautious scepticism. I have a number of questions on these amendments, particularly as I understand that the Minister might be intending to support them to some extent.

I understand the reasoning behind them. Projects evolve, impacts manifest late in the process and developers may wish to regularise matters through this pathway. Indeed, in principle, a degree of flexibility can be helpful for all concerned in the planning process. This could also help to speed things up, which is one of the core intentions of the Bill. However, flexibility, if poorly secured and accounted for, risks turning things instead into loopholes and could give the Government much more direct power and say over matters of importance. EDPs were created precisely to ensure that environmental protection is front-loaded, assessed, integrated and approved before the first spade hits the ground. If we are now to permit post-commencement plans, we are blurring that critical line. The Government clearly set that out in the original drafting of the Bill, so this is a very fundamental change.

Might this invite retrospective justification of impacts that should have been avoided or evaluated in advance, and what is the mechanism that will stop deliberate misuse of this new clause should a developer be so minded to do that? How will post-commencement EDPs preserve the same environmental rigour as those agreed at the outset of the drafting of this Bill? What safeguards will ensure that the flexibility serves better compliance, not convenient regularisation after the fact? How will this affect the deterrent from starting work without proper authorisation? The credibility of EDPs and public trust depend on certainty that environmental obligations cannot be adjusted once the bulldozers roll in. This could increase uncertainty for developers themselves. For all the talk of streamlining, shifting assessments mid-project can introduce delay, legal risk and even greater reputational exposure.

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Report stage
Wednesday 22nd October 2025 Lords Chamber

The final question for the noble Baroness, Lady Scott —I apologise that there have been four in a row—is this. If, as seems likely under these proposals, hotels are not given a change of use permission, where will asylum seekers be housed? The real possibility is that they will be in competition with other very vulnerable groups, as we discussed in the last group of amendments. Then, many will find that their situation has further deteriorated. The noble Baroness, Lady Scott, and her group, have provided no solution. Meanwhile, Amendment 87E provides a workable way forward.

[Lord Banner (Con)]

My Lords, there is a danger that this subject tends to generate more heat than light, as I think we have heard just now, so I thought I would—from the perspective of a planning silk—explain what these amendments would and would not do, so that we are all clear about that.

These amendments are not about the principle of asylum hotels, nor are they about the principle of small boats. They are about providing clarity and certainty to the planning regime, which needs clarity and certainty in order to operate effectively. Currently, the position in law under Section 55 of the Town and Country Planning Act is that a change of use of premises requires planning permission only if that change of use is material. There is case law—most recently the Epping judgment, but there are other judgments over the last few years, including cases in Great Yarmouth—to the effect of whether a change of use is material is an evaluative judgment on the facts of the case.

In the context of asylum hotels, that can be a very difficult and unpredictable evaluative judgment, made even more difficult by the mission creep of some of these hotels. They can start off with families, then the nature of their use can change. That uncertainty is disadvantageous to all participants in the planning system. It is disadvantageous to the commercial hotel operators, because they are being asked to invest money to fit out the hotel for asylum seekers, without knowing whether that investment may come back to bite them if it later turns out they needed planning permission and did not have it, and they are enforced against. It creates uncertainty for communities, because they do not know whether particular operations in their neighbourhood require planning permission and are something to which they should be given a right to participate in the decision-making on.

Fundamentally, it creates uncertainty for local planning authorities, which are on the horns of a dilemma. They have to choose whether to turn a blind eye and let a potential breach of planning control continue, or to bring enforcement proceedings, which, if brought in court, can cost hundreds of thousands—sometimes millions—of pounds, putting them and the local taxpayer at risk of significant adverse costs. It is very hard to tell in advance what the prospects of success in such proceedings will be, given the very delicate, nuanced nature of the decision, and the evaluative judgment on whether a particular change of use is material or not.

Fundamentally, the clue is in the name. Planning is meant to be predictable in all forms and all manifestations of the regime. If you cannot plan, the system does not work. Therefore, this amendment would make it very straightforward and provide a clear line in the sand that any change of use to an asylum hotel or an HMO would be deemed a material change of use. Every protagonist in the planning system would then know where they stand: that this needs planning permission.

These amendments do not constrain the decision whether to grant planning permission, and nor do they in any way affect the merits or prospects of an application for planning permission. All they do is let everybody know where they stand. I urge the House, and particularly the Liberal Democrats: let us focus on the real issue that these amendments put into play and cut the rhetoric.

[Lord Blencathra (Con)]

My Lords, I will comment briefly on these amendments. The Government may say that if you stop these conversions of hotels, where will we put the people? The noble Baroness, Lady Pinnock, asked the same question. That is a fair question. The answer is to use all spare military accommodation, recently used by servicemen and women. From what I read, the Government want to do that, and they must have the guts to stick to it, because they will have public support, even though left-wing immigration lawyers will mount judicial reviews against it.

So, His Majesty’s Government, do not be terrified into closing RAF Wethersfield, but increase numbers there to the maximum possible and reopen Napier barracks. I stayed there 50 years ago, and it is 100 times better now than it was then. Many noble Lords will have experience of military accommodation in the past, including officer accommodation, and it was not up to the standards now available for illegal migrants.

It was deplorable that some lawyers and immigration groups took action to close Napier, which was used only for single men. How did these single men get here? They walked hundreds, perhaps thousands, of miles through Afghanistan, Iraq, Turkey, Greece, Romania and other European countries, and lived in appalling conditions near the beach at Calais, before crowding into a little boat. Others have come from Eritrea, Somalia and up through Egypt, Libya, Italy and on to Calais. I am sure they had premium accommodation en route.

How dare anyone suggest that the accommodation in any of our former military bases is not good enough for single men of fighting age, when it was good enough for British men and women of fighting age? If they had to stay in Barry Buddon, stuck out in the coast in Fife next to Carnoustie, where 30 of us were in a nissen hut with one big cast iron potbelly stove, they might have something to complain about, but not in the current accommodation. So, His Majesty’s Government, please do not back down on the use of former military accommodation, or any other spare government accommodation, and that can take the pressure off unsuitable hotels.

On Amendment 87E, I do not trust any Government to use this power anywhere in the country, and put up temporary accommodation all around the land, but if some of the military bases are not big enough, or are regarded as not having quality accommodation, then move in temporary accommodation—caravans, chalets, portable homes, portakabins—and put them on these bases or other military land. That is a better solution and answers some of the question, “If you close these hotels, where will you put them?”. I have suggested it in my comments tonight.

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Report stage
Wednesday 22nd October 2025 Lords Chamber

[The Earl of Clancarty (CB)]

My Lords, I rise briefly in support of the outlier Amendment 87D from the noble Baroness, Lady Coffey. I have Amendment 102, likely to be heard on Monday, which seeks to extend the current assets of community value scheme to include cultural assets, so I have a particular interest in how the scheme as it stands at present does and should work.

The noble Baroness’s amendment and mine were considered in the same group in Committee; she pointed out that, as she said just now, some if not all cultural buildings had already been added to the Town and Country Planning (General Permitted Development) (England) Order 2015. This has been a move in the right direction, but I certainly agree that assets of community value should be added. Strangely, we have a situation where, through the 2015 order, certain cultural venues such as concert halls and theatres are protected but community assets as such are not, which feels incredibly inconsistent, certainly in relation to the community asset scheme as it stands now.

I find what the noble Baroness, Lady Coffey, has described today, and in considerable detail in Committee —about how a new owner can ride roughshod over a community—not just wrong but, frankly, outrageous. Legislation is not always the right thing, as the Minister points out quite a lot, but I think this is a perfect instance of where a gap in the law ought to be plugged and ought to be addressed in the community’s interest. I will certainly vote for Amendment 87D if the noble Baroness, Lady Coffey, takes it to a vote.

[Lord Banner (Con)]

My Lords, Amendment 64 has been packaged in the media, and even in the Marshalled List, as augmenting the Secretary of State’s power to call in an application, but, as the Minister made clear in opening, in fact it does not do that. It leaves Section 77 of the Town and Country Planning Act 1990, which is the call-in power, unchanged. What it actually does is augment the holding power, under Section 74 of the 1990 Act, so that the Secretary of State can issue restrictions on the refusal of planning permission to facilitate consideration of the call-in power. In that context, I seek some clarification from the Minister as to what is intended procedurally, were this amendment to become law.

Currently, there are procedural safeguards in place in relation to called-in planning applications: there is a statutory safeguard in Section 77(5), which gives either the applicant or the local planning authority the right to be heard before an inspector appointed by the Secretary of State. That, plainly, will not be changed, because there is no proposal to amend Section 77, but the obligation for the Secretary of State to cause a hearing to be heard is also the subject of a policy that exists in the Planning Inspectorate’s guidance on call-in proceedings. The policy in the Planning Inspectorate guidance is that the right of a local authority or an applicant to be heard under Section 77(5) is to be exercised by means of the inquiry procedure. The public inquiry procedure, of course, allows for greater scrutiny of the evidence and greater public participation than a mere one-day informal hearing.

Is the Minister prepared to offer a commitment on behalf of the Government that there will be no dilution of the procedural safeguard in the Planning Inspectorate’s published policy and that the right of a local planning authority to insist on an inquiry and to exercise its statutory right to be heard through the inquiry procedure, as opposed to a lesser procedure, will not be diluted and will remain?

[Baroness Young of Old Scone (Lab)]

My Lords, the Government’s Amendment 64 was billed by the Minister, in the letter that she wrote to all Peers laying it out, as seeking to address a minor gap. I am not sure about that. I think other noble Lords have also expressed different concerns from mine. I take this opportunity to seek reassurances from the Minister. I am grateful for the way in which she presented the circumstances in which call-in takes place, and the safeguards, in her introduction to the amendment, but the amendment could be read as a considerable change in tone on the Government’s intentions and role in the planning system.

I am probably caricaturing it but, under the current arrangements, the Government used to be regarded almost as a knight on a white horse. They would come in at the last minute on planning decisions where the local authority was getting it wrong in granting permission, often in cases which were going to be to the detriment of the environment. That was a rather fine thing, in my view.

--- Later in debate ---

In response to the noble Lord, Lord Banner, I should say that this amendment will not change the procedures for dealing with called-in applications. If the Government intended to change these, we would indeed inform the House.

[Lord Banner (Con)]

I appreciate that this amendment would not change the procedures, but the question I was seeking the Government’s clarification on is: will the Government commit to not diluting the policy commitment that the right to be heard in a call-in process is exercised through the rigorous public inquiry process, which allows for public participation, rather than the lesser process of a hearing? Will the Government commit not to diluting that policy requirement for an inquiry?

[Baroness Taylor of Stevenage (Lab)]

I thank the noble Lord for that clarification. Of course we keep the procedures under review in order to ensure they are fit for purpose. It is very important that we would inform the House in the proper way if we were to make any procedural changes in regard to the issues he raises.

Amendment 65, tabled by the noble Lord, Lord Lansley, as an amendment to government Amendment 64, seeks to incentivise local planning authorities getting up-to-date local plans in place and to allow them to determine applications subject to a holding direction where an up-to-date plan is in place and the proposal accords with this plan. I assure the noble Lord that we appreciate the sentiment behind his amendment. As I have often said, we too want to ensure that local planning authorities make positive decisions and grant planning permission for development which is in accordance with up-to-date local plans. However, we are not convinced that the noble Lord’s amendment is necessary. Under our amendment, the Secretary of State will be able to restrict refusal of planning permission or permission in principle. Where the Secretary of State has not also restricted the local planning authority from approving the application, they will be free to reconsider the application and grant it if they wish. We believe that this addresses the intent of the noble Lord’s amendment.

Amendment 87A, tabled by the noble Baroness, Lady Coffey, would amend secondary legislation to enact government Amendment 64. I assure the noble Baroness that this amendment is not needed, as we will bring forward the necessary changes to secondary legislation shortly following Royal Assent of the Bill.

Amendment 87D, tabled by the noble Baroness, Lady Coffey, seeks to remove assets of community value from the permitted development right which grants planning permission for the demolition of certain buildings. I am not responsible for the grouping of amendments, so I understand her issue about where this has been grouped, but we will debate it as it is in the group before us. I very much appreciate the sentiment behind this amendment, and I share the noble Baroness’s desire to ensure that local communities do not lose the community assets which are so important to them. We do not have many old houses in our town, because it is a new town, by its very nature. However, I have relayed before my story of a beautiful old farmhouse in my own ward of Symonds Green. An application came in for that property, and we tried very hard to get it listed before the application was considered. Unfortunately, the inside of the property had been amended; so much work had been done to it internally that we could not get a listing for it and, unfortunately, it was, sadly, demolished. The reason I am saying that is because there are a number of routes that local communities can take to protect properties, which I will come on to in a minute.

It is already the case that the demolition permitted development right excludes many types of buildings which are particularly valued by local communities. We know how important these buildings are, and Members across the House have stated this both this afternoon and in previous debates. These include pubs, concert halls, theatres, live music venues and many other buildings of local value.

Local planning authorities, as I have stated before and as I was reminded by the noble Lord, Lord Freyberg, can use Article 4 directions to remove permitted development rights in their area, where it is appropriate to do so. While I note the comments of the noble Lord, Lord Freyberg, about Article 4 and the possible complexities of dealing with that, it is possible for local authorities to apply for these in advance.

There is also another route that local authorities can go down, which is to set up a register of buildings of local community interest, which, while it does not carry the weight of statutory protection that Article 4 does, provides a checklist for communities and planners for buildings that cannot be listed, against which they can be checked, should proposed development come forward.

We believe that the current approach is the right one. However, I assure the noble Baroness that we continue to keep permitted development under review, and this and other matters related to that are always under review. With these assurances, I ask noble Lords not to press their amendments.

--- Later in debate ---

[Lord Banner (Con)]

My Lords, I speak to my Amendment 104 and the government Amendments 67 and 261, which would extend the time for commencing a planning commission which is subject to judicial review.

I start by saying to the Minister that the feelings are entirely reciprocated. I am very grateful to the Government for the continuous engagement on this issue over quite a long period recently. The Government’s amendments, although differently worded to mine, would have essentially the same effect and would make a significant difference, as would my amendment, to mitigating the prejudice to developers whose planning permissions are subject to challenge, and indeed land promoters and landowners too, and to reducing the incentive on claimants to bring and perpetuate meritless challenges. So I support the government amendments and I do not need to press mine.

However, this amendment was not the most impactful of my package of amendments. The planning world is watching what the Government will do on Hillside; it is going to be debated next week, and I reiterate my encouragement to the Minister and her colleagues to roll out the same level of engagement and co-operation as we have had in relation to “stop the clock” for JR to the Hillside amendment, because that is the one that will really make a massive difference.

In the interests of time, I do not want to say very much about the other amendments in relation to totally without merit judicial reviews for non-NSIP judicial reviews other than this. I supported the sentiment and principle of those amendments in Committee. The difficulty I have with them on reflection is that, given that to be workable and constitutionally appropriate, the striking out of any right of appeal for totally without merit cases would need a hearing, the problem with extending it to all planning judicial reviews is that it would eat up the very limited bandwidth of the planning court. The planning court simply does not have the resources to deal with the proliferation of hearings that apply the Clause 12 procedure to all planning judicial reviews as opposed to the NSIP judicial reviews, which are much narrower. There have been only about 40 NSIP judicial reviews ever, whereas in the planning context it is a lot greater. So reluctantly, I do not think those amendments are workable at present stage, but if there were to be a new planning Bill in future, it should be looked at.

[Baroness Bennett of Manor Castle (GP)]

My Lords, briefly, I have a simple question about government Amendment 67, which would allow an extension of time to implement a planning permission or a listed building consent where there has been a legal challenge. This returns to the ecological surveys which got such a discussion in the group before lunch. Ecological surveys are taken at a particular point in time, and, particularly in this era of the climate emergency, species are moving and appear and disappear. How are the Government planning to deal with the fact that the ecological survey may become profoundly out of date and so, if this goes on for a long period, the grounds on which the decision was made initially may need to be redone? Is there some plan to deal with that issue?

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Committee stage
Monday 15th September 2025 Lords Chamber

This amendment would not prevent land purchasing from occurring but would force better practices, bringing increased transparency and accountability to the process for such giant projects. It is only right and fair that landowners and the local communities potentially impacted have some sense of the scale of the project that is being proposed and how it might have a much bigger impact beyond their boundaries. I beg to move.

[Lord Banner (Con)]

My Lords, Amendment 227E, tabled in my name, among others, would address the wide-reaching consequences of a recent Supreme Court decision in a case called Day for persons who acquire former open-space land from local authorities. The context for this is that open spaces held by a local authority under the Public Health Act 1875 or the Open Spaces Act 1906 are subject to a statutory trust in favour of the public being given the right to go on to the land for the purpose of recreation. When a local authority wants to sell open-space land, typically because it is either surplus to requirements or part of a land swap to facilitate new, higher-quality open space elsewhere, its decision-making process is subject to various procedural and substantive safeguards, under both statute and common law.

One of the procedural requirements is Section 123(2A) of the Local Government Act 1972. This provides that the local authority may not dispose of any land consisting or forming part of an open space unless before doing so they advertise their intention to do so in a local newspaper for two weeks and consider any objections to the proposed disposal received in response to that advertisement. Under Section 123(2B) of the same Act, the sale of the land post-advertisement then proceeds free of the statutory trust. If a local resident or community group considers that any of the procedural substantive requirements regulating the disposal of land have been breached, they have a remedy: they can bring a claim for judicial review of the local authority’s decision.

In public law, the normal position is that if a public body’s decision is not challenged within the three-month time limit for bringing a judicial review claim, that decision is treated as having all the effects in law of a valid decision. However, in Day, the Supreme Court held that even when the decision to dispose of open-space land has not been challenged at the time of disposal, and may be many years and even decades in the past, a historic failure to comply with the advertisement requirement means the statutory trust persists, thus frustrating the repurposing or redevelopment of the land in question. That is the case, the court reasoned, even if the land was sold to a bona fide purchaser who was completely unaware of any procedural irregularity, and even if there remains no dispute that the land was surplus to requirements.

The effect of this is deeply unsatisfactory. It means that the land which has been sold on the basis of an unchallenged decision that it is in the public interest to dispose of it, which may have planning permission for beneficial redevelopment, is now bound by the statutory trust and cannot be put to its intended beneficial reuse. It sits uncomfortable with the public law principle that unchallenged public decisions should be treated as valid, and with the property law principle that a bona fide purchaser, without notice of equitable interests, takes land unencumbered by those interests. This is causing huge uncertainty in relation to land purchased many years ago—sometimes decades, as I mentioned. The evidence about whether land in question had been advertised prior to sale may no longer be readily available. This is holding up many developments across the country which already have planning permission.

A high-profile example of that is the current proposal to expand the All England Lawn Tennis Club’s internationally renowned facilities at Wimbledon to an adjacent former golf club site, the planning permission for which was recently upheld by the High Court. Claims that it is subject to a statutory trust in the light of the Day judgment are holding up the development and with it the substantial benefits to UK PLC that it would deliver.

Amendment 227E would deal with this issue by providing that bona fide purchasers of former open-space land and their successors in title are free from the burden of a statutory trust. This would not remove the local authority’s duty to advertise before disposing of open-space land, nor would it remove any of the other legal safeguards on the decision-making process relating to such disposal. It would not interfere with the public’s right to challenge a decision to dispose of such land within the usual three-month window for bringing a JR claim.

What it would do, however, is ensure that, where there has been no such challenge and the transaction was made in good faith, the purchase is not subject to the deleterious uncertainty and burdens that I have outlined. This would be consistent with the Government’s stated desire to streamline the planning system and deliver the growth this country needs. I respectfully urge the Minister to give it serious thought.

[Lord Grabiner (CB)]

My Lords, I support the noble Lord, Lord Banner, and have added my name to his amendment.

Every so often, we get a court decision which produces an unsatisfactory outcome. If, as is the position in relation to this amendment, it is a decision of the Supreme Court, there is no further appeal process. In that event, it is possible to have recourse to Parliament for the resulting problem to be put right. This is such a case.

Quite often, because of the demands made on parliamentary time, it is not practical to get a speedy solution. Fortunately, the Planning and Infrastructure Bill is in progress and is, I believe, tailor-made for the resolution of this problem. The mischief addressed by the amendment was, as you would expect, identified by Lady Rose, delivering the unanimous judgment of the five-judge Supreme Court in the case of R (Day) v Shropshire Council that we are concerned with. In paragraph 116, at the end of her judgment, Lady Rose said:

“I recognise that this leaves a rather messy situation”.


This is one of those situations where Parliament can and should step in to perform some corrective surgery.

I will not weary your Lordships with a detailed analysis of some arcane trust law or a lengthy exegesis of Section 164 of the Public Health Act 1875, Sections 123 and 128 of the Local Government Act 1972, and the provisions of the Open Spaces Act 1906—the noble Lord, Lord Banner, has already done that. I do not mean he has bored your Lordships; I mean he has accurately, if I may respectfully say so, summarised the import of that mixture of ancient legislation.

Where a local authority is proposing to dispose of land, it is technically obliged to advertise that fact for two successive weeks in the relevant local press—that is by virtue of Section 123 of the 1972 Act. This enables residents to register their objections in advance of the disposition. It is a consultation process. I describe the advertising requirement as technical because the 1972 Act specifically provides that any failure to advertise—for example, by mistake or oversight—will not impede or undermine the transaction. The buyer is fully protected and gets title to the land purchased—that is Section 128, as the noble Lord, Lord Banner, made reference to.

That provision says that the sale is not invalid for want of advertising and that the purchaser

“shall not be concerned to see or enquire”

whether the advertising requirement has been satisfied. Careful and complex historical investigation conducted by a potential purchaser may reveal that the land is subject to a public or statutory trust under the 1875 Act, entitling the public to go on to the land for recreational purposes. The effect of the Day case is far-reaching. It is accepted that the purchaser gets a good title, but the failure to advertise means that the public right to use the land remains in place. Moreover, that will continue to be the case for ever, because only the local authority has the power or duty to advertise under the 1972 Act, so it has a most profound and permanent effect.

Your Lordships will immediately appreciate the devastating impact of the Day decision. The land is blighted. The potential purchaser—for example, a developer—will walk away either because he does not know if the parcel of land, for historical reasons, is caught by the 1875 Act, or because he discovers it is caught, he can do nothing about it and his development plans would be frustrated. At a time when it is in the public interest to encourage housebuilding, it is important that unjustifiable impediments should not be allowed to undermine the furtherance of that crucial objective.

One can see that an objection to the amendment might be made along the lines that the public right to enjoy the land would be taken away. That is true, but there are two important countervailing arguments: first, there is an important public interest in doing whatever we can about the chronic housing shortage; secondly, it is obvious that, in the 1972 Act, Parliament was giving local authorities the power to sell the land and thereby to ensure that the public recreation rights would fall away for ever. The decision in Day makes it plain that if the advertising requirement had been satisfied, the public right would indeed have disappeared. When we take account of the fact that the purchaser gets a good title in any event, the intention of Parliament in 1972 is clear. That Act was designed to facilitate or ease the transfer of land.

The Day decision has produced an uncontemplated hurdle that can, and I respectfully suggest should, be set aside. I hope your Lordships, and indeed the Government in particular, agree with this analysis and will agree to the amendment.