Planning and Infrastructure Bill

Lord Banner Excerpts

Committee stage
Tuesday 9th September 2025 Lords Chamber

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

[Lord Banner (Con)]

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

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

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

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

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

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

[Viscount Hanworth (Lab)]

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

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

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

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

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

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[Lord Wilson of Sedgefield (Lab)]

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

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

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

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

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

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

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

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

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

[Lord Banner (Con)]

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

[Lord Wilson of Sedgefield (Lab)]

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

[Lord Banner (Con)]

Yes.

[Lord Wilson of Sedgefield (Lab)]

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

Planning and Infrastructure Bill

Lord Banner Excerpts

Committee stage
Thursday 4th September 2025 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

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

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

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

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

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

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

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

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

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

[Lord Banner (Con)]

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

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

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

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

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

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

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

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

[Lord Banner (Con)]

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

[The Earl of Lytton (CB)]

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

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

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

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

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

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

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

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

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[Lord Howard of Rising (Con)]

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

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

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

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

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

[Lord Banner (Con)]

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

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

the land or building in question.

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

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

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

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[Baroness Pinnock (LD)]

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

[Lord Banner (Con)]

My Lords—

[Baroness Pinnock (LD)]

No, I am not taking any further interventions.

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

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

[Lord Banner (Con)]

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

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

[Lord Carlile of Berriew (CB)]

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

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.