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.

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[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.

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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.

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[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.

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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.

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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.

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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.

--- Later in debate ---

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

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.

Planning and Infrastructure Bill

Lord Banner Excerpts

Committee stage
Thursday 17th July 2025 Lords Chamber

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

[Lord Banner (Con)]

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

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

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

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

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

[Lord Hunt of Kings Heath (Lab)]

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

[Lord Banner (Con)]

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

[Lord Ravensdale (CB)]

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

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

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

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

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

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

Planning and Infrastructure Bill

Lord Banner Excerpts

Committee stage
Thursday 17th July 2025 Lords Chamber

[Lord Mawson (CB)]

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

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

[Lord Banner (Con)]

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

[Baroness Coffey (Con)]

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

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

[Lord Banner (Con)]

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

[Baroness Pinnock (LD)]

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

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

--- Later in debate ---

[Lord Berkeley (Lab)]

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

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

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

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

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

[Lord Banner (Con)]

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

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

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

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

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

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

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

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

[Lord Ravensdale (CB)]

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

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

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

Planning and Infrastructure Bill

Lord Banner Excerpts

2nd reading
Wednesday 25th June 2025 Lords Chamber

[Lord Banner (Con)]

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

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

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

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

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

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

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

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

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

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

Housing: Modern Methods of Construction

Lord Banner Excerpts

Thursday 5th September 2024 Lords Chamber

[Lord Banner (Con)]

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

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

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

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