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

[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.

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.

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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.

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[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.

Planning and Infrastructure Bill

Lord Banner Excerpts

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.

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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.

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[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?

Planning and Infrastructure Bill

Lord Banner Excerpts

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.

Planning and Infrastructure Bill

Lord Banner Excerpts

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.

Planning and Infrastructure Bill

Lord Banner Excerpts

Committee stage
Thursday 11th September 2025 Lords Chamber

My final point is on Section 98(3) which, if brought into force, would also assist with the point that my noble friend Lord Banner will move on to discuss—the consistency of neighbourhood development plan-making with national policy. That subsection provides that neighbourhood development plans must be consistent with national development management policies, which, as the Minister kindly told us, are expected to be published for consultation before the end of this year.

[Lord Banner (Con)]

My Lords, I will speak on Amendment 167, which stands in my name. It would require future neighbourhood plans to be consistent with national planning policy, in particular the National Planning Policy Framework. Neighbourhood plans, once made, form part of the statutory development plan in accordance with which planning decisions must be made, unless there are other material considerations indicating to the contrary.

Typically, for their first five years, neighbourhood plans attract the protection of paragraph 14 of the NPPF. Even if the tilted balance in paragraph 11(d)(ii) applies, the proposed development is consistent with the NPPF and there is a lack of a five-year housing land supply, a development that conflicts with the neighbourhood plan will fail to get permission, so they carry real force in the plan-making and development control system. The problem with this is that, under the so-called basic conditions against which new neighbourhood plans are examined, a neighbourhood plan has only to have regard to national policy, not be consistent with it. There is a world of difference between the two. I am sure that the Minister will have regard to everything that we say in this debate, but I dare say that not everything in her response will be consistent with it. There is a world of difference.

Neighbourhood plans of course have a role to play in what my noble friend Lord Jamieson called the “pyramid” of planning policy, in giving effect to national and district policy, but they should not be able to undermine it—yet that can happen currently. From my experience at the coalface of planning decision-making, as an advocate in planning proceedings, I know that happens with real regularity. For example, a neighbourhood plan can have regard to NPPF policies on greenfield development but then impose more restrictive criteria, making it harder than national policy envisages for developers to get permission on greenfield sites. Neighbourhood plans can self-impose a housing requirement for their area that is not consistent with the NPPF’s standard method for assessing local housing need, thereby downplaying local needs within their area and stifling necessary growth.

With the greater direction on planning policy from central government under this Government—something with which I have more sympathy than perhaps some other colleagues on this side of the House—the risk of neighbourhood plans undermining national policy is even greater. This tends, in my experience, to be particularly prevalent in those areas where parish councils or other neighbourhood planning authorities are well resourced: areas which are wealthy, where the affordability gap is perhaps greatest and where the need for new affordable homes is particularly severe. It is in those kinds of areas where neighbourhood plans tend to have the most deleterious effect on delivering necessary growth.

My Amendment 167 would eliminate this issue by putting neighbourhood plans in their proper place in the hierarchy of planning policy—not letting the tail wag the dog, as so often happens. I agree with my noble friend Lord Lansley that bringing Section 98(3) of LURA into effect would also help in relation to national development management policies, but that would still leave a lacuna in relation to the NPPF. I urge the Government to consider this proposal very carefully. I also endorse the comments of my noble friend Lord Jamieson on his Amendments 150ZA and 150ZB.

[Baroness Pinnock (LD)]

My Lords, I have Amendment 185M, which proposes a vital duty to ensure due consideration of neighbourhood plans. I am delighted that, in discussions on the Bill, we are spending time considering the importance of neighbourhood plans, because they represent the heart and soul of local communities’ aspirations for their areas. They are often painstakingly developed by local people, often without much in the way of expert advice, and the plans reflect the needs, the character and the priorities they want for their areas. However, without adequate statutory backing, these plans risk being marginalised by larger-scale development decisions.

If adopted, Amendment 185M would achieve two important outcomes. The first would be that a planning authority, including the Secretary of State, would have to give due consideration to any neighbourhood plan or, indeed, any draft neighbourhood plan when making a decision on an application for planning consent. If that happens, the voices of local residents, as expressed through their neighbourhood plans, will not just be there but be factored into major development decisions. Maybe that is where I differ from the noble Lord, Lord Banner, and others in this group of amendments.

The other outcome of the amendment would be that the Secretary of State would permit a variation to a neighbourhood plan only if the variation were clearly justifiable and unlikely to compromise the overall intention of the neighbourhood plan that has been proposed in a clear manner. The amendment would safeguard the integrity of neighbourhood plans, preventing arbitrary or poorly considered alterations that could undermine their community-driven objectives.

I suppose that, in the end, it depends how we look at planning. We have had two analogies today: a planning hierarchy from the noble Lord, Lord Banner, and a pyramid from the noble Lord, Lord Jamieson, and I wonder whether using those images makes us think that the important bit is the apex. I would use a different analogy: our road system. The big NPPF, strategic plans and local plans are like major roads and motorways, but what gets us from one place to another are local lanes and byways—and that is the neighbourhood plans. Those are the ones that matter to people. Once we start thinking of pyramids and hierarchies, I think we tend to think that the top of the pyramid is the important bit, but actually it is the foundations. I have probably said what I need to say about that.

I am in broad agreement with the amendments in the name of the noble Lord, Lord Lansley. We went through all of them during the passage of the Levelling-up and Whatever Bill, now an Act. It is important that public bodies are made to assist with plan-making. If you do not, where does that end? The issue that the noble Lord, Lord Lansley, is trying to get us to think about is that frequently, in my experience, local people engage in planning only when it comes to a practical application on the table for a planning decision on a housing site, a commercial development or whatever it is.

Unfortunately, my starting point is that as a local councillor I often have to say to people that a housing site is already in the local plan and therefore the principle of development has been determined. Often, they will say, “Well, where was our say in this?” I will go through what I and others tried to engage with them and let them know what the proposals were. The difficulty that people often find is that this is a theoretical plan at a strategic level with great big sort of proposals for transport infrastructure, commercial development or housing. It is theoretical, as is local planning, even when it is allocation of sites. People often struggle to engage at that level. In this era of thinking about the creation of strategic planning and local authority local plans, we need to think very carefully about how that information is transmitted to the public.

Amendments in an earlier group on this Bill, probably two or three days ago, were about digital modelling. I think that would bring to life for people land-use planning and the allocation of sites. So that is my only difficulty with the argument made by the noble Lord, Lord Lansley.

The collective impact of all these amendments would create a more integrated and responsive planning system. If we want to put local communities at the heart of engaging with and taking part in responsible decision-making about what happens where they live, neighbourhood planning must be at the heart of that, because it enables proper democratic participation in making decisions about their area for their future. I hope that the Minister will give that a positive nod.

--- Later in debate ---

[Lord Banner (Con)]

I invite the Minister and her government colleagues to consider, if in my Amendment 167 a requirement for consistency with the NPPF is considered to be too onerous in relation to neighbourhood plans, a middle ground of general conformity. That language was used back in the days of regional spatial strategies; local development plans had to be in “general conformity” with RSSs. It is an established formula that has been considered by the courts already, and it is a stronger direction than “have regard to” but with at least a degree of more minor flex.

I fear that the Minister and her government colleagues overestimate the rigour of the neighbourhood plan examination process. This is not done by independent planning inspectors; it tends to be done by consultants who are in the business of examining neighbourhood plans, so they have a degree of incentive to sign them off. It tends not to involve an oral hearing, being done on paper, and tends to give neighbourhood planning authorities a very wide margin of appreciation in practice. It is a lot easier for neighbourhood plans to depart from national policy in practice than it may appear to be on paper. That is my experience, and I encourage the Government to consider that midway ground between now and Report.

[Baroness Taylor of Stevenage (Lab)]

I am grateful to the noble Lord for that suggestion. I will take it back and reply to him in writing.

--- Later in debate ---

Moved by

[Lord Banner]

166: 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 all primary legislation relating to planning prevailing at the time of the relevant application, decision or exercise of functions, including—(a) the Town and Country Planning Act 1990,(b) the Planning (Listed Buildings and Conservation Areas) Act 1990,(c) the Planning and Compulsory Purchase Act 2004,(d) the Planning Act 2008,(e) the Localism Act 2011,(f) the Housing and Planning Act 2016,(g) the Levelling Up and Regeneration Act 2023,(h) the Planning and Infrastructure Act 2025,(i) any secondary legislation relating to environmental impact assessment or habitats assessment, and(j) any other legislation relating to planning prevailing at the time of the relevant application, decision or exercise of functions.”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, this amendment stands alone and is tabled in my name. It seeks to introduce a principle of proportionality in planning, in accordance with which all planning functions would need to be exercised and all planning laws would need to be interpreted.

Although the basic structures of the planning environmental impact assessment and habitat assessment processes have remained broadly the same for a long time, their application has, over the years, become increasingly and unnecessarily disproportionate. For example, there is now in widespread areas of the planning system an overprecautionary approach to the precautionary principle which, in practice, is treated by many in the system as requiring zero risk even though the case law does not require that. Environmental statements, which in the early years of the EIA regime were reasonably concise, are now frequently delivered in vans and take up a whole room in offices, which is unhelpful to everybody concerned in the system. There is a recent instance of a DCO examining inspector asking 2,000 questions in relation to a DCO application. Again, it is not outside the norm.

Statutory consultees insist on planning applications providing a level of detail wholly disproportionate to the stage of decision-making in question. For example, in the context of an application for outline planning permission simply to confirm the principle of development for an allocated site, the principle of which is baked into the allocation, the developers can routinely be required to retest points that are already baked into the allocation or descend into matters of very granular detailed design that are far more suitable for reserved matters and discharge at condition stage. We frequently see consultants producing voluminous reports, often out of caution because of fear of being tripped up and being subject to a professional negligence claim, with considerable liability later.

These are not exceptions that prove a contrary rule; they are all too commonplace. The tendency for prolixity and disproportionality does not make decision-making any better; it just clogs up and slows down the system. This amendment is designed to give all stakeholders in the planning process the confidence that less can, and indeed should, be more, to deter them from delving into unnecessary detail and duplication. It would leave the precautionary principle untouched, so it would not amount to environmental regression, but it would, importantly, anchor it in reality and pragmatism.

There is provision in the drafting of this amendment for the Secretary of State to make and update statutory guidance on how the principle of proportionality is to be applied, which would ensure that the principle is adequately flexible and future-proof.

The proposal for the principle of proportionality has received widespread support in the development sector, including an emphatic endorsement from the Land, Planning and Development Federation, a leading representative body. Moreover, it is entirely consistent with the recently published findings of the Nuclear Regulatory Taskforce, whose interim report was published last month. I commend that report to the Minister, if she has not had the opportunity to see it; it strays into other areas, and other ministerial responsibilities in other departments, but chapter 6 has a whole section on disproportionality in the planning context, specifically but not exclusively looking at the nuclear context. I shall quote from the summary of the findings, where it says:

“The preliminary view of the Taskforce is that problems with proportionate decision-making are interrelated and systemic. Various incentives drive more costly and time-consuming standards with no substantive safety or environmental benefits”.


There we have it in clear back and white letters from the regulatory task force that a principle of proportionality would add a huge amount of value to the planning system but at no environmental cost. I beg to move.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

My Lords, as I have said on several occasions, we need to cut down on the bureaucracy of planning and the excessive application of policy on habitats. Even the Prime Minister has criticised the HS2 £100 million bat tunnel.

In my experience, we have an over-precautionary approach in planning, so I am attracted by the principle of proportionality, especially as it is promoted by a well-known planning KC, who has already contributed very positively to this Committee. My only question, either to him or to the Minister, is whether there is a risk of rising legal costs rather than the reverse, which I think is the intention behind the provision. Indeed, could this unintentionally hurt smaller builders?

[Lord Banner (Con)]

No, in my assessment. Whenever the law changes, there will be an adaptation period. That is axiomatic, but it will be the case anyway because we will have new legislation. The intention behind it, if anything, is to streamline and therefore reduce costs, including legal costs.

[Baroness Andrews (Lab)]

My Lords, I am intrigued by this exchange, because the thought had occurred to me that, by introducing a principle of proportionality into the legislation, we would then open the floodgates to contention about what is proportional. The question of JR seems to be immediately rearing its head. Therefore, I cannot see how, rather than simplifying the system, it would not add a layer of complication.

The argument about the CIL in relation to small developments is a different one. There is some merit in that because of the flexibility one needs for small builders. However, that is only part of an ancillary argument to the broader and slightly dangerous argument brought forward by the noble Lord, Lord Banner, in favour of over-complicating the planning system in the way he suggests.

--- Later in debate ---

The noble Baroness, Lady Andrews, made the point that proportionality depends on who you are and whether something seems proportionate. If the noble Lord, Lord Banner, could give us a clear definition of proportionality—the Royal Town Planning Institute has one in its documents—there would be merit in it, but just saying “Let’s be proportionate” has less merit.

[Lord Banner (Con)]

There is a definition in proposed new subsection (4) of the amendment:

“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 … and the extent to which those issues will or can be made subject to future regulation”.


Proposed new subsection (5) then says:

“The Secretary of State may publish guidance”.


It is spelled out and would be eminently capable of being applied.

[Baroness Pinnock (LD)]

My Lords, it is about “having regard to”. We have had that debate on other groups.

[Baroness Taylor of Stevenage (Lab)]

My Lords, I turn to Amendment 166, regarding proportionality in the planning system, ably moved by the noble Lord, Lord Banner. I thank him for bringing it forward. It seeks

“to give decision-makers, applicants, consultees and the Courts confidence that”

in the planning system

“less can be more”.

We agree with this sentiment. If we are to meet the 1.5 million homes target, as the noble Baroness, Lady Scott, has just outlined, the planning system needs to operate more effectively and with greater certainty. Of course, the problem here is that although the noble Lord described it as reality and pragmatism, unfortunately one man or woman’s reality and pragmatism will be somebody else’s dystopian nightmare, so we have to be a bit careful about how we move forward.

We all know that planning has got much more complex and litigious, which has led many local planning authorities to take a precautionary approach when preparing local plans and dealing with planning applications. This is why we too want to see a more proportionate approach to planning. However—and this is where, unfortunately, we disagree with the noble Lord—we feel that introducing a new statutory principle of proportionality across all of planning is not the way to achieve this. This itself would introduce a new legal test, which risks more opportunities for legal challenge and grounds for disagreements—points made by the noble Baroness, Lady Neville-Rolfe, and my noble friend Lady Andrews. Instead, we believe it is better to promote proportionality through national planning policy and by looking at specific opportunities to streamline procedures through regulatory reform.

The Bill already includes important reforms to achieve this, including the nationally significant infrastructure projects reforms and the creation of the nature restoration fund. In response to the noble Baroness, Lady Neville-Rolfe, issues concerning SME builders and how to support them are under very serious consideration, including the large package of financial support that the Government have already announced, and we will continue to consider what more might be done in that regard. We are also doing much more alongside the Bill—for example, scaling back the role of statutory consultees through our review of those bodies, and examining whether there should be a new medium development category where policy and regulatory requirements would be more proportionate, as we recently set out in our site thresholds working paper. For all the reasons I have set out, I hope the noble Lord will agree to withdraw his amendment.

[Lord Banner (Con)]

I thank the Minister for her comments. It is encouraging that we share the overall objective of proportionate, streamlined decision-making, even if we part company, for now, on how to achieve it.

I would like to come back on a couple of points. On legal risk, the first point made by the Minister and the noble Baronesses, Lady Andrews and Lady Pinnock, was about the definition—would there be ambiguity regarding what the principle means? I suggest not. It is set out in terms in subparagraph (5), with the ability of the Secretary of State to promote statutory guidance. It may be that the language can be improved, but I encourage the Government to continue the helpful discussions we have had outside this Chamber on whether that risk might be reduced.

In any case, given that the interpretive duty in the principle of proportionality is to interpret all planning laws in a proportionate, pragmatic way, the overall net effect of this amendment would in fact be to reduce legal risk. Because in any judicial review context, if somebody came along arguing for a particularly restrictive, over-precautionary interpretation, the court would have, in neon lights, messaging from Parliament that the court should take a less onerous, less prescriptive approach, which is bound to reduce the overall success rate of judicial reviews in the planning context. So, I suggest that, overall, this would reduce rather than increase legal risk. The stress test of that is the LPDF, which represents SMEs—those developers who would be particularly affected by increased legal costs were they to arise. Its emphatic view—in fact, this is the amendment, of all those before the Committee, it is most emphatic on—is that the amendment would be helpful. So, I will pursue it on Report, but for now, I beg leave to withdraw the amendment.

Amendment 166 withdrawn.

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Moved by

[Lord Banner]

169: 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, Amendment 169 seeks to mitigate the effect of the Supreme Court’s judgment in a case called Hillside. I should at the outset declare an interest, in that I was leading counsel in Hillside, albeit I am no longer retained by the party in question. It is a highly technical amendment but really important, and I will do my best for the record to summarise the problem. The Minister and I have had discussions, and I know she is aware of the issue.

Large developments—the most important ones for the growth this country needs—such as urban regeneration schemes, new settlements, large urban extensions, infrastructure and the like can take many years, and quite often decades, to build out. Over that time, it is almost inevitable that some of the details of the later phases will need, by the time they get built out, to change and adapt to evolving needs, to things that have changed in the economy or in our ways of life since the original planning permission was granted.

To put a bit of flesh on that, for example, a mixed-use urban extension might have offices in the later phases that can no longer be filled due to the post-Covid shift to working from home, which could not have been foreseen at the time the original outline permission was granted. Therefore, it may be proposed to swap out those offices, which would simply be a white elephant, for last mile logistics, as the need for that sector has increased. A hotel planned for a later phase may no longer be viable because of changing tourism patterns, but there may be a greater need for a care home instead.

A very well-known example is the largest outline permission in this country, Liverpool Waters. The planning permission for the regeneration of Liverpool Docklands was granted in 2011. The city council is on the record as indicating that would be a three-decade planning permission to build out. During the currency of that development, an opportunity was identified to relocate Everton Football Club into its amazing new stadium, which opened only a few weeks ago. Therefore, the development had to be rejigged to accommodate the stadium.

For various reasons, applying for a new site-wide planning permission in circumstances where there has been a need to adapt and change in relation to evolving circumstances is not practical. It is too onerous in terms of the evidence base, because you need a new site-wide EIA, for example. It is too expensive for that reason, and due to the cost of planning fees for site-wide permissions and large-scale developments. Importantly, it is too slow, because everything would have to be reappraised. You would have to redo the surveys, which can take place only at certain times of the year, even in relation to those elements that are not changing, because the site-wide second permission would apply to the whole.

Therefore, a widespread practice has developed in the planning field in what is often called drop-in or stand-alone permissions, where the planning application red line is drawn not around the whole site area, but around the area it is going to change. In one of the examples I gave earlier, you would draw the line around the area earmarked for offices, not around the whole development. You would then apply to swap the particular development within that stand-alone planning permission area. The local authority would consider the planning merits of the change going on in that stand-alone area without having to re-appraise everything.

The developer would obviously have to make a good case for the change and if it did not, it would not be allowed. But if it did, and this routinely has happened, a change would be authorised. If permission was granted, the change would take effect pursuant to the stand-alone permission, so the area for the offices would become logistics in the example I gave, and the remainder of the wider development would proceed unchanged under the original site-wide permission.

The Supreme Court in the Hillside case has drastically affected this practice. The legal principle that the Supreme Court has enshrined is that if implementing a later stand-alone permission has the effect that it is now physically impossible in a material way to build out the site-wide permission in its entirety, the site-wide permission can no longer be relied on for any future development that is authorised by it but no longer built, so the residual site-wide permission is essentially lost, with very profound consequences.

There are sometimes workarounds, but they are incomplete and, even when they do exist, they can be uncertain, risky, cumbersome, slow and costly. To give a sense of the magnitude of this problem, since the Hillside judgment was given in late 2022, I estimate that I have written between 300 and 400 opinions on how to work around Hillside—so the one person who will lose out because of this amendment is me. This amendment would clear up the uncertainty and provide a clear route through.

I am not wedded to the precise drafting, if the Minister and her officials consider it could be improved. I expect the Minister will say that the Government recognise the difficulty presented by Hillside but that finding a solution to it is a complex matter which requires detailed consideration—and so it is. However, with respect, it is the job of the Government and Parliament to grapple with those complexities and come up with a workable solution, rather than kick the can down the road.

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[Baroness Taylor of Stevenage (Lab)]

My Lords, one of the great benefits of being in your Lordships’ House is that every day is a school day and you learn something new. I had no idea there was anything like a reverse declaration of interests, which I think the noble Lord, Lord Banner, just made, in saying that he is going to lose out if this amendment is taken into account.

This is a highly technical amendment. I am grateful to the noble Lord, as the noble Baroness, Lady Scott, said, for his explanations of the background to the case and for setting it in a context which made it a little easier to understand. I am grateful for the amendments around the Hillside Supreme Court judgment.

Amendments 169 and 185SB are technical but important amendments about overlapping consents. Amendment 169 seeks to address the implications of the Hillside judgment in relation to overlapping planning permissions. It seeks in particular to enable the carrying out of a development under an initial permission when an overlapping permission has been implemented, making it physically impossible for the first permission to be carried out.

Amendment 185SB, tabled by my noble friend Lord Hunt, focuses on overlapping planning permissions and development consent orders. The Government recognise that the Hillside judgment and subsequent court decisions have caused concerns across the development sector, and the noble Lord was kind enough to send me some of the articles that have been written since, setting out which problems they are causing. It has made it more challenging to use the practice of drop-in permissions to deal with changes in development proposals for plots on large-scale residential and commercial development in response to changing circumstances. There have been concerns about the implications for the implementation of development consent orders for nationally significant infrastructure projects when planning permissions have been used to deal with minor variations.

We want to ensure that large-scale developments, where they need to change, can secure the necessary consents to deal with these changes effectively and proportionately. Unfortunately, we are not persuaded that Amendment 169 is the solution to Hillside for overlapping planning permissions. It is too broad in scope, and we must be absolutely sure that it would not undermine the integrity of the planning system. The long-standing principle that Hillside endorsed—that it is unlawful to carry out a development when another permission makes it physically impossible to carry it out—is a sound one. Decisions are made on the merits of the entire development proposal, and this amendment would allow developers to pick and choose what parts of an approved development they wanted to implement when they had a choice.

Similarly, we need to consider carefully the implications of legislating to deal with overlapping planning permissions and development consent orders in general terms. While I understand the desire for certainty, there is more flexibility through a development consent order to deal with the overlap with planning permissions.

That said, I emphasise again that, as a Government committed to ensuring that the planning system supports growth, we are keen to ensure that the right development can be consented and implemented quickly. We want to ensure that there is sufficient flexibility to deal with change to large-scale developments. Clause 11 already provides a framework for a more streamlined and proportionate process to change development consent orders, but we also want to look at how the framework can be improved for planning permissions. We would welcome further discussions with your Lordships and the wider sector on this matter. I am grateful to the noble Lord, Lord Lansley, for pointing out issues around Section 110 of the Levelling-up and Regeneration Act. I need to revisit our correspondence to refresh my mind on what we said about that, but his point about restoring the law to the Pilkington principle is noted and I am sure we will come back to this.

I thank my noble friend Lord Hunt for tabling Amendment 227F and for his continued commitment to energy security and net-zero objectives. This amendment seeks to create a statutory timeframe of 10 weeks for decisions to be made on compulsory purchase orders made under the Electricity Act 1989. The Government are fully committed to achieving clean power by 2030 and it is clear that rapid expansion of the electricity network is essential to delivering that mission. We recognise the importance of providing all parties with a clear understanding of likely timelines to support project planning and investment decisions but do not consider the imposition of statutory deadlines for processing applications to be the best way to achieve this.

The process required for a CPO varies depending on the features of each case, which means that different types of case require different timescales. Guidance from MHCLG already includes indicative timings for the determination of CPOs in England. These range from four to 24 weeks, depending on the case and the process required. Using shorter deadlines to speed up a process is like passing a law that outlaws any delay in your journey up the motorway. That might sound appealing—especially if, like me, you have to travel on the M25 quite regularly—but, if something needs to be done more quickly, one must first find out what things are causing it to take the time that it takes and then address those issues. Otherwise, one is simply legislating in a way that says: “Do it faster”.

I know that, as a former Minister in DESNZ responsible for planning decisions, my noble friend will recognise that what is really needed are system reforms and simplifications, a more efficient digital case handling system and more capacity. I am delighted to confirm that the Government are already delivering on all three of these things. We are treating the disease, not just the symptom.

I have listened carefully to all the arguments put forward today and can assure noble Lords that we share the aim of ensuring that all processes for CPOs proceed as expeditiously as possible. I hope, for these reasons, that noble Lords will not press their amendments.

[Lord Banner (Con)]

I am grateful to the Minister for her comments. I am relieved to know that, if I get hit by a bus on the way home today—which is very unlikely, given the strikes—my legacy to this House will be the concept of a reverse declaration of interest.

It seems that there is unanimity across the Committee that the Hillside judgment generates a cause for a legislative solution. It also appears to be common ground that new Section 73B, if and when it is enacted pursuant to the Levelling-up and Regeneration Act, would not be a panacea. It may help in some cases—probably about one-third, but no more than that, so there is a need to go further.

Where we part is on the drafting and what the right-worded solution is. I am very much not wedded to the wording of my amendment; it is really there as a challenge in the hope that, collectively, we can come up with something that carries the overall consent of this House. I look forward to working with the Minister and my noble friend Lady Scott to find a form of words that will achieve the solution that we need. I beg leave to withdraw the amendment.

Amendment 169 withdrawn.

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[Lord St John of Bletso (CB)]

My Lords, I rise briefly in support of Amendment 184 from the noble Baroness, Lady Thornhill, on stepping-stone accommodation. This worthwhile amendment promotes transitional housing solutions for those at risk of homelessness, as well as creating incentives for young people to stay at work with financial independence and living in quality, affordable accommodation.

I have been a long-term supporter of the charity Centrepoint, which has done incredible work in providing solutions for those who have been unfortunate enough to be homeless. The stepping-stone homes initiative has delivered self-contained, high-quality homes for young people, with the rent capped, as the noble Baroness mentioned, at one-third of their income. Like the noble Baroness, I have been to see the Reuben homes in Peckham, and I was enormously moved. This cost-effective transitional housing solution has the advantage of not just supporting financial independence and reducing reliance on benefits but, most importantly, helping young people to build a stable future. It provides not just a roof but services, such as helping residents to get over the problems of unemployment, as well as education and other life skills.

The noble Baroness, Lady Thornhill, covered the obstacles to scaling this model nationally and the inflexible application of the national described space standards, the NDSS—there are all these abbreviations—which currently block these smart schemes from expanding. She mentioned the limitation of 34 square metres. These pods, as I would call them, are 24 square metres, but none of the young people complained about a lack of space. This amendment provides checks and balances for a limited and carefully designed exemption for accredited stepping-stone accommodation for young people while ensuring—I stress this—that there are still robust safeguards around design quality.

A transitional solution for two to five years, helping young people to settle into work, live independently and save money makes a massive difference to them moving on with their careers. The limited tenure of two to five years provides the push factor that makes stepping-stone homes a sustainable source of affordable housing. It is not just Centrepoint: several other charities are trying similar initiatives. For this reason, I warmly support this amendment, which effectively provides a crucial piece of the puzzle of tackling homelessness.

[Lord Banner (Con)]

My Lords, I support Amendment 184, to which I have lent my name. There is not much I can add to the eloquent and compelling case for it that has just been outlined by the noble Baroness, Lady Thornhill, and the noble Lord, Lord St John.

As I see it, the key point is about scaling up with necessary speed. While space standards can in principle be departed from, that requires negotiation and time, and there are concerns about the threat of judicial review, et cetera. The amendment would provide clarity and certainty that, for this specific kind of invaluable accommodation, the space standards do not apply. Bearing in mind that the space standards were not designed with this kind of accommodation in mind, because it has come afterwards, to my mind that would be a considerable advantage of this kind of accommodation.

I have looked at the draft and it seems to me to be watertight. There is no scope for other kinds of developers and developments to piggyback on to it and seek to avoid space standards for the kinds of developments that should be subject to them. So I urge the Minister to consider this amendment very carefully. I also emphatically endorse the comments of my noble friend Lord Gascoigne in relation to his amendment.

Planning and Infrastructure Bill

Lord Banner Excerpts

Committee stage
Tuesday 9th September 2025 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I shall speak to Amendment 185SA. I have put my name to a number of other amendments; I support those and welcome the speech made by my noble friend Lord Crisp. He referred to this as the amendment of the noble Baroness, Lady Levitt, and I should say of my noble kinswoman that 48 hours and about 31 minutes ago, she was asked to go on the Government Front Bench and by the time we got here yesterday morning, it was too late to remove her name from the amendment in the conventional way. But what I have learned in those 48 hours and now 32 minutes is that if at home you say, “Yes, Minister” often enough, you can get your own way much more than you used to.

My intellectual inspiration for this amendment comes in fact from a man, a wonderful friend, David Levitt OBE, who is also my father-in-law. He is a very distinguished architect who, recently, in his 90th year, was given a lifetime award by the Architects’ Journal for his service to social housing, and I pay tribute to his work. I know from my time as a barrister and part-time judge and as an MP how inadequate housing—the lack of a decent home in which to live—blights the lives of all too many of our fellow citizens, and all too frequently plays a large part in their coming before the courts, so to me, decent housing is essential to the reduction of crime, especially among adults. In four words: “Good housing brings justice”, and this amendment is designed to achieve that on a large scale.

What is striking about this otherwise inspiring Bill is that it says little about the design—the architectural design—of the 1.5 million homes that the Government are going to build. I think we all agree that nobody wants to build badly. National planning policy already makes it clear that poor-quality design should not be allowed. Yet the general quality and design standard of much volume housebuilding in this country continues to be poor. I spoke earlier about financial irregularities, but it is not just that; it is the way in which the thinking about building takes place that leads to poor design. Not only does that affect the people inhabiting the houses, it contributes to local dissatisfaction with local government and opposition to further development. So, while there is widespread support for streamlining our slow and expensive planning processes—words I use cautiously with the noble Lord, Lord Banner, in the Chamber—there are legitimate concerns about the quality of new development if existing checks and standards are weakened.

There is widespread disquiet about whether the housebuilding industry has the ability or the incentives to make the change needed to deliver both the quantity and the quality of homes that are required. If it does have the ability, is it willing to make that change? The problem lies not with national planning policy, which is pretty clear. The fact that the guidance is currently under revision demonstrates ongoing commitment by the Government to achieving good design. In my view, the difficulty lies at local level. As a result of the erosion of skills over time, inadequate training, which has been discussed earlier, and pressure on budgets, few planning authorities have sufficiently strong policies and processes to allow them to require effective change confident in the knowledge that they will be able successfully to resist planning appeals.

Without enforceable design standards, local authorities have no firm policy footing to reject inadequate schemes, so such developments are frequently approved on the basis that they meet housing needs. Thus, an all too familiar scenario is that outline planning permission is sought and granted on the basis of some attractive early visual impressions, but where all the important design matters are reserved and thus the images produced in fact have no contractual force. Because of national housing targets, councils feel under pressure to approve outline permission. The site is typically then sold to a housebuilder and later the reserved matters submission proposes a generic design based on standard house types on a typology that has nothing to do with local circumstances and places too much emphasis on roads and cars and too little on people and their needs.

What we are trying to achieve is that if somebody lives in new-built social housing, they will say in the years to come, “I come from such and such a place”, and they will try to live there for as much of their life as is economically possible. When the final scheme looks nothing like what was promised, many residents and councillors feel misled, and this leads to a built-in resistance to future applications. To allow this situation to continue would, I suggest, be a betrayal of the excellent vision which has led to the promotion of the Bill.

The good news, as this amendment reveals, is that no radical change is needed. The tools already exist within the existing planning system. All we are proposing is basically a tweak, an adaptation which will set the threshold for good-quality design and will give the already excellent national standards more traction at local level. Doing this will embed consistency and predictability, which will help local authorities, the community, developers and landowners. Consistency and predictability will simplify and thus speed up the planning process and reduce the need for appeals. Thus, the quid pro quo for housebuilders is that those which comply will get their planning permission much more quickly and will therefore be able to maximise their profits by building well within the permitted period.

Simply, what this amendment proposes is a code of practice which requires a set of templates incorporating core design standards. If these are given greater weight through the National Planning Policy Framework, that will make it easy for local authorities to apply the principles at local level. This amendment has been developed with a team of leading architects and planners whose publication, Placemaking Not Plotting, will probably be published tomorrow—I have actually seen a draft of it during the debate.

Once these core quality standards are embedded at local level, local authorities should require compliance with them at the earliest practical stage in the planning process and ensure that they are not left to the reserved matters stage. Clear, predictable and measurable design requirements would enable officers to sign off significant components of planning applications, leaving much-streamlined areas which would then be the subject of proper democratic debate and decision-making in the council chamber—proper local accountability but much more quickly and efficiently. That is exactly what the noble Lord, Lord Fuller, would love in his council chamber in south Norfolk, and he would have good cause to speak of it proudly in this Committee if so he wished.

So enacting a code of practice would allow applications which demonstrate compliance with the standards to be processed speedily within the current system. The promise of speedy approvals will provide an incentive for housebuilders to incorporate these measurable standards in their application.

The aim of this amendment is to find a practical way to use the best of architecture to provide the best in housing design quickly and efficiently. I hope that this approach will appeal to the Minister, who has such long experience of local government and the planning process and has demonstrated extraordinary understanding of it to us in the Chamber in recent days. I observe that this amendment is one of several related to design and quality, and I urge Ministers at least to include the basis of our amendment as part of the planning procedures at local government level to follow this Bill.

[Lord Banner (Con)]

My Lords, I will say a few words in support of Amendment 132 in the name of the noble Baroness, Lady Bennett of Manor Castle, concerning the purpose of planning. To my mind, there would be some advantage in following the precedent in Scotland, where a similar purpose clause exists in its planning legislation. It would provide a guiding light to remind everybody involved in the planning system what planning is for and why we are doing all this.

There are two advantages in practice to this. First, it would remind those responsible for planning decision-making that that is not only about those who shout loudest, who very often tend to be the vocal minority as opposed to the silent majority who may wish to live in an area, and work in the area, but cannot find or afford a home there. It would provide a daily reminder that planning is about long-term public interest and not short-term expediency. For reasons I outlined in a previous debate, it would—in combination with the proposal for a statutory chief planning officer that was discussed in the debate on my noble friend Lord Lansley’s amendment—buttress the independence of professional planning officers from undue influence. That would be all the more important in the world where the national scheme of delegation exists, to give full effect to that scheme and for it not to be undermined by undue pressure from members or officers. I have a few quibbles with the drafting—that is not for today, but maybe something we can take up later. I urge the Government to consider this amendment very carefully.

[Lord Young of Cookham (Con)]

My Lords, the noble Baroness, Lady Levitt, would have been proud of the speech delivered on her behalf by the noble Lord, Lord Carlile. I support the noble Lord, Lord Crisp, and commend him for continuing a campaign that he has promoted for some time, through a Private Member’s Bill and amendments to then Levelling-up and Regeneration Bill promoting healthy homes, but the challenge that faces him is that health and homes are in two different government departments. Successive attempts to bring them together have so far failed. Paradoxically, 100 years ago, the Ministry of Health was responsible for housing and health, and between the two World Wars, that led to a more integrated approach to both health and housing. Indeed, my great uncle, Sir Hilton Young MP, was Minister for Health in the 1930s, and as Health Minister he introduced the Housing Act 1935, which set down standards for accommodation—something which the noble Lord’s amendments seek to build on.

Winding forward, the importance of bringing health and housing together was central to the Black report, published in 1980, about inequalities and health outcomes. It said:

“The consequences, and importance, of housing policies for other areas of social policy, including health policies, have received increasing recognition in recent years—as have the problems of co-ordination deriving in part from the location of responsibilities for housing and personal social services … and Health services”.


Then we had the Acheson report. What I found compelling was the Resolution Foundation’s recent report which said that poor-quality housing doubles the likelihood of someone experiencing poor general health.

I looked at the debate in the other place on this amendment—it was for new Clause 9. There were two Back-Bench speakers, and it was all over in under a quarter of an hour—I see a smile on the face of the noble Lord on the Government Bench—including two other new clauses. That underlines the importance of this House in scrutinising legislation. The Minister there dismissed the need for a new duty to promote health because he said existing policy was adequate. There may be a copy of what he said in the folder in the Minister’s possession.

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[Baroness Taylor of Stevenage (Lab)]

I will.

[Lord Banner (Con)]

It appeared from what the Minister said that a key factor weighing in the Government’s mind against the purpose of planning is the risk of legal challenges. For my part, I think that that fear is probably overblown. The purpose would only be something that would have to be taken into account. Once it was taken into account, any decision that was rational would not be liable for judicial review. I invite the Government to reflect on that. Obviously, I am very happy to help in any way I can on that issue.

[Baroness Taylor of Stevenage (Lab)]

I thank the noble Lord and am happy to reflect on any issues raised in Committee. If he wants further discussions on it, I am happy to have those.

Planning and Infrastructure Bill

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Committee stage
Tuesday 9th September 2025 Lords Chamber

These are, in my view, very sensible probing amendments, just trying to see whether the Government are prepared to go a little further and perhaps to consider this between now and Report. Having said that, I beg to move.

[Lord Banner (Con)]

My Lords, I start by speaking in support of Amendments 129 and 130 from the noble Lord, Lord Hunt—and, indeed, of his Amendment 135D, which would extrapolate those amendments to the hazardous substances Act.

The background, in brief, is that Clause 12 of the Bill, following the recommendations of my independent review on legal challenges to NSIPs, removes the right of appeal to the Court of Appeal in relation to judicial review permission applications which are totally without merit. My independent review did not opine on whether that should be rolled out to other kinds of planning proceedings, as that was outside the remit of my review, but it is, of course, within the remit of this House and this Bill. I agree with everything that the noble Lord, Lord Hunt, has said in relation to rolling it out to other kinds of planning proceedings. To my mind, there is no meaningful distinction of context between a nationally significant infrastructure project and, for example, the granting of planning permission for 2,000 homes. Both are of fundamental importance to the objectives of the planning system.

So I firmly support those amendments. I also support the other amendments associated with those two. The one exception, as the noble Lord, Lord Hunt, has foreshadowed, is Amendment 128. I thought long and hard in the independent review about whether the time limits for judicial review should be shortened. My starting point was that they should be, but, on reflection, having taken soundings from a wide range of stakeholders, I concluded that that may end up being counterproductive. If there is too little time, claimants and their advisers might feel that it is better as a precaution to bring a judicial review claim and then review it and repent at leisure. In this context, I felt that the old adage, “I would have said less, but I did not have the time”, was applicable. It was a finely balanced conclusion, however. As the noble Lord, Lord Hunt, has said, it would indeed be interesting to hear the Government’s view.

I next speak to Amendment 168 in my name. That amendment would stop the clock on the deadline for implementing a planning permission while a judicial review was under way. Sections 91 and 92 of the Town and Country Planning Act have the effect that, for a full planning permission, one ordinarily has three years to commence development from the date of permission; for outline, it is the same period—three years—to bring forward an application for reserved matters.

Currently, however, it can take the best part of three years for a judicial review to run its course in cases that go to the Supreme Court, certainly, and even to the Court of Appeal. The delays in the planning court are such that even to get a permission decision in judicial review can take the best part of half a year. During that time, no rational developer, funder or land promoter would spend money, when a planning permission was at risk. That has real consequences for the status of planning permissions. I am aware of a number of planning permissions which have been put at risk because they have, in essence, been timed out. There was one well-known Supreme Court planning case a few years ago where the land promoter had to do a dummy reserved matters application just to keep the permission alive. Such applications can cost hundreds of thousands of pounds and sometimes more—wasted money which could be better used; for example, in providing a high amount of affordable housing contributions.

It is also an incentive to claimants to bring a judicial review, because claimants and their well-honed lawyers know that you can cause stress and distress to commercial parties by bringing a judicial review, threatening to tire them out and then seeking to extract undue concessions. I urge the Government seriously to consider this amendment. I do not understand what political capital, or any kind of capital, could be lost by accepting it. There are not really any downsides and there are an awful lot of upsides.

[Viscount Hanworth (Lab)]

My Lords, I want to speak in support of Amendment 128. I am uncertain of the provenance of this amendment, but it is certainly well aligned with the Government’s agenda. It seeks to extend the provisions of Clause 12 of the Bill, which apply to nationally important infrastructure projects and other projects, notably those sponsored by local authorities. It seeks to limit the time available to make pleas against planning orders, reducing it from six weeks or 42 days to 21 days. I support this part of the amendment, which is entirely reasonable. More significantly, it proposes that an appeal to the High Court under Section 289 of the Town and Country Planning Act 1990 may not be made without leave of the court.

At an earlier stage of Committee, I spoke in favour of Amendment 52, which sought to limit the scope of judicial reviews that are liable to frustrate nationally important infrastructure projects. The proposal of that amendment is to bring the development orders for nationally significant infrastructure projects into Parliament. After a proposal has passed parliamentary scrutiny, then, by dint of an Act of Parliament, it should become legally incontestable and therefore it should not be subject to the hazards of a judicial review. Parliament must not be overburdened by such legislation; nevertheless, local development orders require greater protection against frivolous legal challenges.

I described the chicanery that obstructed the plans to eliminate a bottleneck on a major trunk road, the A303, where it passes close to Stonehenge on Salisbury Plain. The legal wrangling seemed almost interminable. The first grant of development consent for the bypass in 2020 was quashed by the High Court in July 2021. Then it was given a green light again by the DfT, which reissued the development consent two years later, in July 2023. The project was put on hold again because of another series of judicial reviews which were dismissed by the High Court in February 2024 and by the Court of Appeal in October 2024.

Undeterred by these two defeats, the claimants asked the Supreme Court whether they could appeal again, but on 29 January this year the Supreme Court refused permission to appeal on the grounds that the challenge did not raise any arguable points of law. However, this decision was immaterial, since within weeks of taking office last July, the Labour Government scrapped the plans for a two-mile tunnel which would bypass the monument on the grounds that the cost of the project had become unaffordable. The decision to cancel the project was made three and a half years after the development consent had been given and after a very full and detailed examination of all the issues. In this case, it might be said that the campaigners had won not by virtue of the strength of their cause but by dint of legal chicanery and delay. Moreover, the same recourse is available to many other parties who, for various reasons, wish to stand in the way of important development projects.

It is worth noting the circumstances that made the project unaffordable. They were attributable largely to the delays that had been caused by the appeals. Major work was being undertaken to improve the A303 but, by the time the legal issues had been settled, that work had been completed and the contractors had moved on. To call them back in order to complete the project would have entailed inordinate costs in re-establishing the project. Amendment 128 is wholly reasonable and, I think, long overdue, and I strongly commend it to your Lordships.

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[Lord Wilson of Sedgefield (Lab)]

I thank noble Lords for their thoughtful contributions on this group. I turn first to Amendment 128, tabled by my noble friend Lord Hunt of Kings Heath and spoken to by the noble Lord, Lord Banner, which seeks to reduce the time limit for bringing a legal challenge against planning decisions from six weeks to 21 days.

Judicial and statutory review of planning decisions are already subject to a compressed six-week window within which a claim may be brought, compared with the three-month time limit in most judicial reviews. It is the Government’s view that the current time limit strikes the right balance between providing certainty for developers in local communities and preserving access to justice. Further shortened, the time limit for bringing a claim would risk restricting the public’s ability to hold the Government and planning authorities to account on planning decisions.

A shorter time limit would also leave less time for meaningful engagement between the parties to potentially resolve matters out of court or to narrow the scope of any claim. Claimants who fear being timed out may also feel compelled to lodge protective claims just in case. This could inadvertently lead to greater delays due to a potential increase in the number of challenges.

The Government are taking forward a wider package of reforms to improve the efficiency of the planning system, including measures to speed up decisions and encourage early engagement. These changes will have a far greater impact than trimming a few weeks off the judicial review timetable. While I recognise my noble friend’s intention to reduce uncertainty in the planning system, I believe the three-week time saving from the shortened time limit is outweighed by the risk of restricting access to justice and the practical implications of such a change. Therefore, I respectfully invite my noble friend to withdraw his amendment.

I turn next to Amendments 129, 130 and 135D, also tabled by my noble friend, which seek to remove the right of appeal for certain planning judicial reviews if they are deemed totally without merit at the oral permission hearing in the High Court. The effect of these amendments largely reflects that of Clause 12, which makes provisions specifically for legal challenges concerning nationally significant infrastructure projects under the Planning Act 2008.

The measures in Clause 12 follow a robust independent review by the noble Lord, Lord Banner, and a subsequent government call for evidence that made clear the case for change regarding these major infrastructure projects. We currently do not have any evidence of an issue with legal challenges concerning other types of planning decision. We will therefore need to consider this matter further to determine whether the extension of the changes made to Clause 12 will be necessary or desirable in other planning regimes.

With regards to the amendment, which seeks to clarify that legal challenges are to be made to the High Court, this is not necessary, as the process is set out clearly in the relevant rules, practice directions and guidance documents. I thank my noble friend Lord Hunt of Kings Heath for his Amendments 357, 358 and 360 concerning the commencement of Clause 12 and the new judicial review provisions which he is proposing. The amendments seek to ensure that these provisions all come into force two months after Royal Assent. With regard to Clause 12, this requires changes to the relevant civil procedures, rules and practice directions. The current power, which allows this measure to be commenced by regulation, is designed to ensure that the necessary provisions are in place before the changes come into force. I reassure my noble friend that the Government intend to commence the measure by regulation as soon as practicable following Royal Assent. With regards to my noble friend’s amendment linked to his proposed new provisions, I think he would agree that this amendment is no longer required as the related provisions are now being withdrawn. For these reasons, I kindly ask that my noble friend withdraws his amendments.

I thank the noble Lord, Lord Banner, for Amendment 168, which would extend the time period to commence a planning permission if the permission was subject to judicial proceedings. The Government agree with the policy intention behind this amendment. The statutory commencement provisions under Sections 91 and 92 of the Town and Country Planning Act 1990 are an important and long-standing part of the legal framework for planning permissions to ensure that permissions are implemented in a timely manner, and lapsed if they have not begun within the prescribed time period.

However, we recognise that it would be unfair on the applicant if judicial proceedings—where the court has confirmed the lawfulness of the permission—led to delays that mean that the commencement period of the lawful permission is effectively curtailed. Legal challenges on the validity of the permission should not seek to time out the practical implementation of the permission. That is why Section 91(3A) to (3B) was introduced to automatically extend the commencement period for a formal planning permission by a further year if there were judicial proceedings questioning the validity of a planning permission. This extension of a year is sufficient to cover the typical period for a planning case at the High Court, so applicants, where their planning permission has been lawfully upheld, should not lose out from the delay caused by the legal challenge. In light of these points, I kindly ask that my noble friend does not press his amendments.

[Lord Banner (Con)]

I thank the Minister for those comments. Does he accept that if it is only one year to cover the typical period of High Court proceedings, that gives unsuccessful claimants in the High Court an incentive to perpetuate the proceedings by taking it to the Court of Appeal and potentially thereafter to the Supreme Court to drag out the threat to the implementation of the permission in the way that I described?

[Lord Wilson of Sedgefield (Lab)]

I am not a legal expert on these issues, but I am more than prepared to sit down with the noble Lord to discuss this specific point. We are extending it by a full year, but I think he was wanting to stop it; is that right?

[Lord Banner (Con)]

Yes.

[Lord Wilson of Sedgefield (Lab)]

That means it could go on and on anyway, but it is a point that perhaps we could discuss if the noble Lord wants to do so.

Planning and Infrastructure Bill

Lord Banner Excerpts

Committee stage
Thursday 4th September 2025 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, it is a pleasure to follow my noble friend Lady McIntosh of Pickering. Her Amendment 95 may be modest but it is very sensible, and I congratulate her on the way she outlined it. I also congratulate the noble Baroness, Lady Thornhill, on the way she outlined her amendment in this group. As well as speeding up the delivery of the provision of more houses, making it easier for small and medium-sized enterprises is a way of making sure we can deliver the sorts of smaller developments that are popular in local areas and that match the local vernacular rather than imposing a sort of identikit, sprawling housing estate on every part of the country with no reference to local design.

I have Amendments 96 and 97 in this group, and I am grateful to my noble friend Lord Harlech and the noble Lord, Lord Inglewood, who signed the second of these, as well as to my noble friend Lady Scott of Bybrook for the support that she outlined and her kind comments in her opening speech. Clause 48 would allow the Secretary of State to subdelegate the power to set fees for planning applications to local planning authorities, allowing them to set their own fees to reflect the actual costs that are incurred in dealing with applications and other relevant planning functions, and with that income ring-fenced so that it could be spent only on those specific functions. In many ways that is a welcome and sensible provision; I can understand why local authorities would welcome it. But for it to be truly welcomed, a great many people would like to see some further details and to hear some reassurance about this proposed change.

As is so often the case with legislation nowadays, those details and that reassurance are not in the Bill but are to follow. The Government have said that they intend to consult on the precise arrangements for localised fee setting later this year, and in Committee in another place the Minister stated that detailed processes would be set out in regulations. But it would be very helpful if the Minister could make clear today that this new provision will not include the potential for local authorities to introduce fees for listed building consent. That reassurance would bring great relief to organisations from across the heritage sector, and indeed to the very many ordinary people who happen to own listed properties and who are worried about the detrimental effect on our shared heritage and the potential financial penalties for the people who are the custodians of it.

Under current legislation, obtaining listed building consent is a cost-free process. Consent is required for works that affect the special architectural or historic interest of a listed building under the Planning (Listed Buildings and Conservation Areas) Act 1990, in addition to any planning permissions that might be required.

Listed status is a badge of honour—a mark of our collective appreciation for buildings of particular significance—but it brings with it burdens in the form of conservation and maintenance that are in the public interest, not just for those of us who are alive today but for future generations too, and owners of listed buildings cannot opt out of these obligations. This issue affects a very large number of home owners, not just the grandest stately homes but ordinary family homes in every part of the country. The UK has the oldest housing stock in Europe, as my noble friend Lady Scott said, with around two-fifths of homes built since the end of the Second World War and one-fifth since the end of the First World War. There are some half a million listed buildings across the United Kingdom, many of them owned by people of modest and increasingly stretched means. Ensuring that this service remains free of charge to the people we ask to look after these historic buildings for posterity is hugely important. I am not the owner of a listed building but should perhaps declare a non-financial interest in that I am a trustee of the Cambridge Union, which has its own grade 2* listed property. This issue affects many charitable and civil society organisations as well.

Adding a fee for listed building consent would strongly discourage desirable work to listed buildings, especially work such as decarbonisation and conservation repair, which are often financially unrewarding to the generations that carry them out. Imposing a new fee would also discourage compliance, increasing the already considerable amount of work that goes ahead without the proper consent, risking harm to our cherished buildings and headaches when they come to be sold.

It is also worth noting that a high proportion of listed building consent applications mirror corresponding full planning applications, which already incur a cost. The introduction of fees for listed building consent would in effect be a duplication of costs for applicants when the applications are handled as a pair by the local planning authority. Even in cases where planning application is not required, having to make an application for listed building consent already carries substantial costs in the forms of obtaining drawings, which would not otherwise have been required, professional fees for analysis of heritage significance and potential impacts, and the cost of often lengthy delays. That is why a huge array of organisations across the heritage sector—the Listed Property Owners’ Club, Historic Houses, the Heritage Alliance, the CLA and the Government’s own statutory advisers, Historic England—have said that the applications for listed building consent should remain free. If the Government agree with them and with all this, and do not want to see local planning authorities introducing new charges for listed building consent, they could put that beyond doubt by adopting my Amendment 97. I hope the Minister will say that they are minded to do so.

Separately, in addition to the above, it is important that the consultation and regulations to follow the Bill recognise that many local planning authorities obtain their archaeological and other heritage advice from another local authority under service level agreements. For instance, county councils often provide such services for the district councils and national parks in, and sometimes even beyond, their own administrative area.

My Amendment 96 would ensure that guidance which goes out to local planning authorities about assessing the correct level of charges includes a reminder or recommendation that inputs from other authorities should be included to ensure that external services are correctly funded in this way. I hope that the Minister will look favourably on this amendment.

[Lord Banner (Con)]

My Lords, I will speak to Amendments 98 and 99, tabled in my name, which would enhance the existing statutory power under Section 303ZA of the Town and Country Planning Act 1990 to charge fees for planning appeals to the Planning Inspectorate. That existing statutory power has never been used. There is currently no charge to submit an appeal to the Planning Inspectorate against the refusal or non-determination of a planning application. That contrasts with the position in relation to planning applications, where applicants for major developments pay application fees of tens of thousands of pounds, and sometimes more.

A huge amount has rightly been said in the context of this Bill and planning reform generally about the importance of ensuring local authorities are fully resourced to improve the speed and quality of planning decision-making at local level. That is of course right, but the same applies to the Planning Inspectorate, which performs a critical role in scrutinising local authority decision-making and plan-making. The inspectorate is already overworked and underresourced. This has consequences for its ability to deal as effectively as it would like with its existing case work, and for its ability to attract the widest possible range of candidates to become planning inspectors, including from the private sector. A couple of years ago, many inspectors went on strike due to what they said was unacceptable pay, which in most cases is significantly less than that of a First-tier Tribunal judge, which is, broadly speaking, the equivalent of a planning inspector in other aspects of the justice system.

With the expected uptick in planning appeals and local plan examinations resulting from the new National Planning Policy Framework, as well as the Government’s promised 150 development consent orders and a raft of new spatial development strategies which inspectors will need to examine, the demands on the inspectorate’s resources are bound to increase. Given the constraints on the public purse, an obvious solution is to introduce appeal fees for some or all types of appeal. I have advocated this publicly and privately for a long time—indeed, longer than I have been in this House. I have been reliably told that a key blocker to introducing this has been that, under the existing power to charge fees, any money charged by the inspectorate could not be retained by it but would go to the Treasury.

Amendment 98 is designed to address this by providing that, if the power to charge appeal fees is implemented in future, the fees received will be ring-fenced for the inspectorate. That mirrors the existing provision in Clause 48 for local authority planning application fees to be ring-fenced for planning. I must stress that this is only an enabling provision. The effect of Amendment 98 would not be to introduce appeal fees; it would simply ensure that, if the existing power to introduce such fees were to be implemented in future, the inspectorate could keep the fees. I find it very hard to see what policy objection there can be to that, particularly given the Bill’s existing provision for fee ring-fencing at local level.

Amendment 99 goes further and would make provision—again, this is only an enabling power—for an optional fee that appellants could pay for a fast-track, bespoke appeal process, a bit like one can pay extra for a fast-track passport or a fast-track visa. Ask any developer or land promoter what their biggest concerns about the planning appeal system are at the moment and they will tell you four things. The first is unpredictable delays in the process, particularly the time taken between when a planning appeal is submitted by the appellant and when the Planning Inspectorate validates it and issues a start letter.

The second is the lack of a right to a public inquiry, where the local authority’s refusal or non-determination of their planning application can be subjected to detailed scrutiny through cross-examination. The appeal statistics persistently show that inquiry appeals have the greatest success rate—they are the form of appeal that delivers more homes and more growth—yet there is no right to the inquiry. The Planning Inspectorate chooses the process and, given the constraints on its resources, there are only so many cases it can allocate to the inquiry procedure. More and more often, I personally have seen cases for substantial schemes involving issues of real complexity being allocated against the appellant’s will to the hearing process, or even written representations, which are much lighter-touch processes and, in my view, in the light of that have a markedly lower success rate.

Thirdly, there is the inability of the inspectorate to recruit from the widest possible range of backgrounds in the planning profession due to the pay constraints. There are, I must stress, many really brilliant planning inspectors, but there could be many more. Fourthly, once a planning appeal is started by the inspectorate, often after weeks of delay since the appeal was submitted by the appellant, inquiry or hearing dates are then imposed on the parties at relatively short notice, which can have the effect of depriving them of expert witnesses or legal representatives who have been on the project for years and are integral to its conception and formulation.

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Training of planning officers to understand the need for beauty in the built environment is therefore vital. I raise only one question—or one query or even one doubt—about it, which is that if you train planning officers just as you train architects to think about what the current view of beauty is, they will tend to end up with the same answer. We saw this dramatically and catastrophically after the Second World War in the major council developments and the major artistic developments—a depressing number of which are now listed, I have to say. We ended up with developments which were outrageous and scandalous but uniform across the country. In other words, training leads to groupthink, and it leads to groupthink in planners, in architects and in builders, who leap upon it because groupthink of ticky-tacky boxes leads to cheap developments. The training and the nature of it are crucial, but, having said that, I think this Amendment 99A is a very welcome first step.

[Lord Banner (Con)]

My Lords, I add my support to Amendment 162, which would put chief planning officers on a statutory basis. I agree with the case made for it by my noble friend Lord Lansley and the noble Lords, Lord Shipley and Lord Best. I can add little to what they said, but I want to emphasise one point in particular. It is not uncommon in some—not all—local planning authorities for officers to come under considerable pressure from members in relation to matters that are within officers’ remit, whether it is preparing an officer report or an application to committee, or a delegated decision or work in relation to an emerging plan. It is entirely right and proper for members to reach their own views on matters within their remit, but matters within officers’ delegated remit should be exercised in accordance with their independent professional judgment. Putting the role of the chief planner on a statutory basis would buttress their independence and that of those working underneath them, all the more so were it to be combined with a statutory purpose of planning, which the noble Baroness, Lady Bennett of Manor Castle, proposes in another amendment. This is an issue already; it will be all the more of an issue in the event that the proposed national scheme of delegation becomes effective pursuant to the Bill. Amendment 162 would help give greater effect to that national scheme of delegation and ensure that it would not be undermined by officers who have additional delegated powers going forward being unduly lent on by their members in the context of exercising those delegated powers.

[The Earl of Lytton (CB)]

My Lords, the issue of training was behind my comments in the previous group about planning and proceeding on the basis of competence and confidence, so I support all the amendments in this group as well, and particularly Amendments 102, 103, and 162, which are absolutely pivotal.

In my profession, it is incumbent on practitioners not to undertake tasks for which they have inadequate technical knowledge or practical experience. Unfortunately, there is nothing which currently mandates the use and input of such professionals. So, when resources are tight and finance is limited, the inevitable result seems to be that it is passed down to the lowest-cost element of the process. This is, as other noble Lords have commented, to the increasing dismay of local communities, many of whose members have high levels of relevant knowledge and are therefore particularly concerned about what they see as self-evident flaws in what is presented. It erodes confidence, and we should really be concerned about that.

I remember that some years ago a senior political figure rubbished the idea of quality in development. It was a numbers game, and not quality. The noble Lord, Lord Carrington of Fulham, referred to the critical nature of satisfaction. That is satisfaction not just in the physical environment but in the working environments that we present to the people who have to administer this. Once trained, the knowledge is, of course, portable with the individual. I remember not so long ago an instance of a planning officer who left his authority, tempted no doubt by better terms from a developer, who then returned as a private sector consultant only for the purpose of undermining the very policies that he had formulated and was defending in his previous authority.

As other noble Lords have said, this goes to the heart of the satisfaction of the job, the longevity of it and whether it is properly paid, respected and nurtured, both from outside in terms of the standing of the individual and inside among committee members—I think the noble Lord, Lord Banner, referred to that. It is a false economy not to make these positions worth while, durable and of standing. I remember in my early profession how important certain local government officials were. The planner, the estates director or whatever his title was, and people in other walks of life, such as the district valuer for whom I worked for several years down in Brighton, had standing and status, but not so today. They are regarded as just another, if I may put it like this, petty official. That is to the great detriment of good delivery.

I wholeheartedly support the comments of the noble Baroness, Lady Boycott, in support of Amendment 102. I agree with the noble Lords, Lord Lansley, Lord Shipley and Lord Best, in particular, that we need to address an awful lot of these things if we are to achieve a fraction of what this Bill is capable of delivering.

I turn to Amendment 103, tabled by the noble Lord, Lord Fuller. In the central government sector, I recently spoke to a professional body which had laboured long and hard to get a particular departmental official to understand a very complex series of issues, all of which had critical outcomes for the way in which policy would be delivered. I am not going to embarrass anybody by saying which department it was. However, with their having reached this elevated stage and got this person to really understand what was involved, that official was promptly moved to another, completely unrelated function—I am not even sure that it was within the same department. That was a loss of human resource and a waste of knowledge and experience, and it was to the considerable dismay of this body which had been trying to deal with it. If the idea is that as soon as somebody understands something, they have gone too native, or something like that, that is the wrong sentiment. We are losing people, and we are losing the force and direction of policy. While I support the comments of the noble Lord, Lord Fuller, I fear that a much wider organisational change in terms of holding on to those core skills in appropriate locations is necessary.

Finally, the noble Baroness, Lady Bennett of Manor Castle, referred to the scope of training. I would add groundwater and geology to her list of basic skills and understanding. Like her, I do not suggest that people have an in-depth knowledge of this as a trained geologist or ecologist, but they must have a minimum understanding to do the job, to know when they need further, more detailed technical advice and to understand what the advice is when it is being given. On all those counts, we are falling down. Therefore, I very much support what she says about getting this right.

This is a very large issue. I fear that much of it may, in terms of policy and implementation, stray outside the strict terms of this Bill. However, unless we address these issues and unless that forms part of the consciousness of how we move this forward, we will have another large body of Explanatory Notes, impact assessments and all the rest of it, which will ultimately be on somebody’s cutting-room floor. That is a terrible waste of the resources of this House, of the other place and of all the people who have engaged with us to give us their views on how aspects of this should be brought forward. There is a common golden thread here that I hope will be picked up by the Government. It is at the core of getting delivery on this Bill.

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[Lord Howard of Rising (Con)]

I am very grateful for the intervention. It makes the world of Alice in Wonderland look normal and sensible, and that also applies to the front door.

My second example is on a smaller scale. With the support and blessing of English Heritage, I recently purchased and pulled down a particularly ugly and inappropriate 1960s chalet-style house adjacent to Castle Rising Castle, which is a listed monument, in order to replace the horror with cottages built in the traditional local stone. This was a project for the greater good that, fingers crossed, might have just broken even. That was before the bat people got involved.

An inspection took place to check whether there was any trace of bats in the house. There was no evidence of bats, but that was not good enough for the bat people. I was made to take off the roof, tile by tile, so that a bat person could inspect each tile as it was taken off. This was despite the inspection having shown there was no trace of bats. To get to the roof in safety, the building had to be scaffolded, an absurdity for something about to be pulled down. It then took six men four weeks to remove each tile and show it to the bat person before the tile could be thrown away. Using machinery already on site would have taken one man half a day. I ask your Lordships: what sanity can there be in carrying on in this manner?

I have not even started on what the archaeologist wanted. I was made to dig down three metres, a metre below the two-metre foundations that were planned. At all stages, this had to be inspected by an archaeologist, with men and machinery having to wait for the archaeologist to find time. Your Lordships can guess what that cost.

As a country, we have managed to get to a situation where the greater good is being destroyed by the antics of minority interests, which can look at things only from their own—in many cases laudable, maybe, but very narrow—perspectives. How can any Government expect houses to be built with the enormous difficulties that builders have to contend with? I have mentioned only two. Let us start on the road to sanity by repealing all legislation relating to the preservation of the bat population. They will not disappear; they will still be around centuries after the legislation has been repealed.

[Lord Banner (Con)]

My Lords, I offer some views on the legal effects that Amendments 135HZB and 135HZC, on asylum hotels and asylum HMOs, would achieve, in particular to develop the point made by my noble friend Lady Scott on the current legal uncertainty relating to those kinds of accommodation. Broadly speaking, under the planning Acts, planning permission is required for development. Development is defined in Section 55(1) of the Town and Country Planning Act 1990 as including

“the making of any material change in the use of”

the land or building in question.

As my noble friend Lady Scott has outlined, the current case law in relation to this kind of accommodation is that whether the change of use of a hotel to accommodation for asylum seekers is a material change of use is a matter of fact and degree in the particular circumstances of each case. There is no hard and fast rule. That, in turn, breaks down to two questions. Has there been a change of use, from hotel to what normally is sought to be characterised as a hostel for asylum seekers? If there has, is that use material in planning terms, having regard to the particular circumstances and effects?

The difficulty with that situation is that, as my noble friend said, it generates considerable uncertainty for all stakeholders. It creates uncertainty for the commercial party behind the hotel. Is the investment that they intend to make—in converting the hotel and making it fit for this kind of accommodation—at risk without obtaining planning permission or a certificate of lawfulness guaranteeing that permission is not needed? There is uncertainty for the local planning authority. Does it enforce, with the potential risk of enormous costs—potentially millions of pounds in a particular case—not necessarily knowing what the outcome of that would be? If it does not, has it turned a blind eye to something which is illegal? There are really difficult issues there. It is quite hard to advise local authorities in those situations which side of the line they are on, because it is so evaluative and fact sensitive.

There is obviously uncertainty for the public in question about what is going on in their area. There is, dare I say, quite possibly also uncertainty for the Home Office in understanding the planning status of asylum accommodation within this country. These amendments would provide clarity by drawing a clear line in the sand that this kind of accommodation requires planning permission, with the local consultation that goes with, so that everybody knows where they stand, thereby eliminating the current ambiguity.

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[Baroness Pinnock (LD)]

I will continue. Why has it taken five years for the Conservatives to wake up to the fact, as they seem to think now, there is a principled planning issue associated with using hotels for temporary accommodation for asylum seekers? That is the question.

[Lord Banner (Con)]

My Lords—

[Baroness Pinnock (LD)]

No, I am not taking any further interventions.

The failure of this approach is that, if hotels are not used, what other temporary accommodation is going to be used for asylum seekers? That is where we are with the attempt made by these amendments.

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The second is that councils are being put under tremendous financial pressure because of the extent of the need for temporary accommodation for their own local families. According to the last figures I saw, over 140,000 children in this country are currently in temporary accommodation. That is appalling. Yet here we are dealing with an attempt today to be rid of the use of hotels for temporary accommodation for asylum seekers that will add to the pressure of housing local families and children in suitable accommodation. The Benches to right stooping as low as they have is a shameful attempt to use this planning Bill for their own cheap political party points.

[Lord Banner (Con)]

My Lords, as this debate has progressed, there has been increased heat and perhaps a commensurate decrease in focus on some of the issues that were raised. I hope noble Lords will appreciate that I chose my own words extremely carefully when I outlined my legal views on the consequence of these amendments.

I reiterate that one of the key issues of the status quo is the uncertainty due to the fact that currently, there are no bright lines as to whether a change from hotel use to asylum accommodation or an asylum HMO is or is not always a material change of use. There is an advantage in having certainty one way or the other, and I am very deliberately not expressing a view on which way or the other it should be. It is simply that the ambiguity is deeply unsatisfactory. I stress that the extent of that ambiguity has increased in recent years, months and days. The case law—not just in the Epping case, but in earlier judgments by Mr Justice Holgate, which were earlier in the High Court concerning Great Yarmouth and other locations—has developed in such a way that the uncertainty has got greater, which has exacerbated the problem. Very respectfully, I invite any remaining speakers to deal with that point objectively and in a focused and unheated manner.

[Lord Carlile of Berriew (CB)]

My Lords, I agree with the noble Lord, who brings to this House a greater knowledge of planning law than the rest of us added together. It is absolutely right that there is uncertainty, and the uncertainty should be resolved by the Government having a look at whether the changes that he has suggested need to be made, not by the amendments that have been moved. What we have heard this afternoon sounded much more like the other place in action, where constituency issues have been brought to bear to try and deal with what really ought to be rational arguments.