Planning and Infrastructure Bill

Debate between Lord Banner and Lord Wigley

Report stage
Monday 27th October 2025 Lords Chamber

[Lord Banner (Con)]

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

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

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

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

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

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

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

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

I beg to move.

[Lord Wigley (PC)]

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

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

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