Planning and Infrastructure Bill

Viscount Hanworth Excerpts

Committee stage
Tuesday 9th September 2025 Lords Chamber

[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.

[Baroness Coffey (Con)]

My Lords, I am really concerned about Amendment 128. The reason why I say that is that in this Bill, at the hands of the Government, we have already had an attack on democracy in terms of substantial decisions being removed from democratically elected councillors, and now it feels as if we are having an attack on communities. The reason why I say that is that six weeks from a determination to bringing about putting in a challenge when you believe that something may have been done unlawfully is already pretty short.

There are a number of factors. A judicial review probably costs between £100,000 and £150,000 just to get the process going, and it can be quite substantial in itself for a community to get that funding together. Normally you would do a pre-action protocol letter that the courts expect the Government—indeed, both sides—to comply with. Quite a lot of that will involve significant extractions of information from the Government. As a consequence, three weeks would end up timing out the opportunity for communities, which are concerned that something is being rammed through, to have a genuine opportunity to challenge it. This and previous Administrations will know that quite often—I will not say all the time, but there have been significant times—the courts have found the Government’s proceedings to be unlawful. That might be frustrating for the Government, but nevertheless there is still an opportunity for communities to do that.

So I am very concerned about halving the time for communities to consider how they might challenge a particular decision. We have seen that in a variety of ways, whether it is about housing, aspects of energy infrastructure or transport. I will not pretend that the Government will not often get frustrated, but nevertheless I think Amendment 128 in particular would still be an unnecessary adjustment. Frankly, although my noble friend Lord Banner is sympathetic to Amendment 128, as he said in his speech, I am delighted that he did not actually put his name to it.

Building on that, we then get into other considerations about going to the Court of Appeal. I have a lot more sympathy with the other amendments that have been put in this group in order not to have never-ending regulatory challenges through the courts. I used to represent Suffolk Coastal, and I know that Sizewell C in particular has had a lot of challenges that seem never ending and somewhat ridiculous, so I have some sympathy for that. However, I also have experience as a Secretary of State, not necessarily on infrastructure but on other judicial matters, where a judge in the High Court has ruled against the Government—despite, by the way, it having been through both Houses of Parliament in determining a particular aspect of legislation—and then initially said, “And you can’t appeal to the Court of Appeal”. There is a process that allows the Government, or indeed anyone, currently to go around that and just say, “That’s a bit ridiculous. You found against us and now, funnily enough, you’re actually accepting that you do not want your decision to be challenged”. That is where I have a bit of concern on where that particular aspect may go.

The noble Viscount, Lord Hanworth, happened to refer to the A303. I used to live quite near the A303 and while I am not trying to do a Second Reading speech—I am conscious of the advice of the noble Lord, Lord Wilson of Sedgefield—I just want to remind noble Lords of some of the amendments that have already been put to this Bill trying to limit the number of different reasons why a judicial review can be brought on infrastructure project.

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Going back to this particular group, I am very concerned about the three weeks versus six weeks. The noble Lord, Lord Hunt, will know that—let me put it this way—not all of government is quite so efficient in responding to these pre-action protocol letters and the like. I think it would be unfair, if not unsafe, to try and insist on this change.

[Viscount Hanworth (Lab)]

The supposition of the noble Baroness, Lady Coffey, seems to be that the consideration of a project by those that might oppose it is subsequent to the admission of a development order. In fact, usually the opposition long predates that, and so the limitation that we are proposing is not a denial of the opportunity to consider and to oppose a project.

[Baroness Coffey (Con)]

What is being proposed is drastically reducing the amount of time if anyone wants to bring a judicial review. I have already mentioned the barriers of raising money, assuming you can raise that. Perhaps this will be a change, but the High Court will not like this. It will absolutely kick off. Right now, Governments really struggle to not do the whole amount of—forgive me, I have forgotten quite the phrase, it is disclosure but there is a particular phrase that goes with candour. But if that is the way and we are going to go with three weeks, then honestly the delays will get worse. Be careful what one wishes for in regard to three weeks versus six weeks. I think this is an unnecessary amendment, whereas I am somewhat supportive of the other amendments that the noble Lord, Lord Hunt, has tabled.