Thursday 17th July 2025
(1 day, 19 hours ago)
Lords ChamberPlanning and Infrastructure Bill 2024-26 View all Planning and Infrastructure Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 110-I(b) Amendments for Committee (Supplementary to the Marshalled List) - (17 Jul 2025)
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)
My Lords, I thank all noble Lords for their engagement both at Second Reading and at our subsequent drop-in sessions and meetings. I thank the noble Baroness, Lady Pinnock, for Amendment 1, and my noble friend Lord Hunt and the noble Baroness, Lady Scott of Bybrook, for Amendments 2 to 7, making minor changes to the amendment. As these amendments all endeavour to insert a purpose clause at the start of the Bill, I will consider them together. I just add, following the debate we had earlier today, that I have some sympathy with those who do not want to have purpose clauses as the first amendment—we had 63 speakers at Second Reading, and we have covered some of the same ground—but I understand the noble Baroness’s wish to have one. I will keep my response to Amendments 1 to 7 short, as the purpose and aims of the Bill were debated very fully at Second Reading.
The Government have been consistently clear about the purpose and aims of this Bill, and I am very pleased that the noble Baroness and the noble Lord have identified many of these in their amendments. As outlined at Second Reading and throughout its passage, the Bill is a key component of the Government’s mission and plan for change. It is intended to unblock the planning system and secure the infrastructure we need in this country. We have already delivered significant changes to our planning system through a revised pro-growth National Planning Policy Framework. Combined with these changes, the Bill will help us reach our ambitious plan for change milestones of building 1.5 million safe, decent and affordable homes in England and fast-tracking planning decisions on 150 major economic infrastructure projects in this Parliament.
The Bill will do this by delivering five key objectives. The first is a faster and more certain consenting process for nationally significant infrastructure projects, the focus of our debate today. My noble friend Lord Hunt is quite right to point to the importance of this to achieving growth. He spoke about grid connections. The fact that it can now take longer to get a grid connection than it did to build the whole A1 is a crazy factor of the way planning has blocked some of the growth we need to see. He spoke about the 360,000 pages of planning documents for the Lower Thames Crossing. I can tell him that when we embarked on the major redevelopment of Stevenage town centre, we had a great lorryload of documents turn up for the planning process, so I am very sympathetic to what he said.
The second aim is for a more strategic approach to nature recovery that will unlock a win-win for the economy and for nature. We are clear that this will support nature recovery, and I hope to be able to say a little more about it later this afternoon.
The third aim is to improve certainty and decision-making in the planning system, ensuring that local communities and politicians play their role while maximising the expertise of professional planners. The noble Baroness, Lady Pinnock, referred to steamrolling; this is not steamrolling but engaging communities at the planning stage, when they can have the most influence in the planning process. Local communities and local people can do far more if they influence the plan at local plan stage than when trying to object to a particular application that is in accordance with that local plan.
The fourth aim is unlocking land and securing public value for large-scale investment, and the fifth is introducing effective new mechanisms for cross-boundary strategy planning. That is an important dimension that sits alongside our English Devolution and Community Empowerment Bill, which is currently in the other place.
The Bill will also support delivery of the Government’s clean power 2030 target, ensuring clean energy projects can be built as quickly as possible, including through measures that will increase community acceptability, such as a bill discount scheme for those living closest to new electricity transmission infrastructure.
It is in the interest of our country to make our planning system better to ensure prosperity and sustained economic growth. Many noble Lords have spoken about that already in this debate, and I have no doubt that the Bill will help us to achieve this, along with the other package of measures that we have introduced. I am sure these objectives that I have outlined align with the purpose in the noble Baroness’s amendment and lie at the heart of all our current and future decision-making. I do not believe, therefore, that it is necessary to accept the amendment, as the measures within the Bill speak for themselves.
I will cover some of the points made by noble Lords earlier in the debate. The noble Baroness, Lady Scott, spoke about our ambitious target of 1.5 million safe, secure and affordable homes. This is a manifesto pledge, a pledge in our Plan for Change and a firm commitment from this Government.
The noble Baroness, Lady McIntosh, mentioned councils being able to determine the need for social homes. I was keen to make this change in the National Planning Policy Framework to encourage councils to identify the number of social homes that they need, as distinguished from affordable homes—the definition of affordable homes is much wider—so that was a good step forward. Our policy on brownfield is that it must be brownfield first. I know she has a number of points to make around flooding and I am sure that we will discuss that later in the Bill’s progress. Her point on food production is well made; there is a Defra land use framework which we are hoping will be published any day now, and I think she will find there is some information in that on food production.
The noble Lord, Lord Mawson, referred to place-making. As someone with a new-town background, I agree with the points he made about the importance of the holistic nature of planning and how that makes for good planning.
The noble Lord, Lord Banner, spoke about an overall stated purpose of planning, and the noble Lord, Lord Fuller, raised this with me yesterday. I am sure we will consider all of that further during the course of the Bill.
The noble Lord, Lord Ravensdale, rightly pointed to the link between infrastructure delivery and growth, and he makes a very important point. The purpose of the Bill is to make that connection much clearer and to make sure that the planning legislation supports the growth mission.
The noble Baroness, Lady Neville-Rolfe, spoke about some of the things that can slow down planning and some of the things that we hope will speed up planning. We are introducing a whole package here, from the National Planning Policy Framework to the national development management policies recommended by the previous Government and the devolution package. I hope that, taken together, all those things will speed up the process and encourage the growth that we all want to see.
The noble Lord, Lord Porter, spoke about the functions of the Bill. He is not in his place, but he raised the same point that the noble Lord, Lord Fuller, raised with me about the overall objectives of planning, and the noble Lord, Lord Banner, mentioned this as well. I will give that further thought.
The noble Baroness, Lady Coffey, spoke about completion notices. There is a process, as she rightly identified, for completion notices. It might be helpful if I get some more information for her about how those are being used. There is definitely a power for local government to do that already. I hope that the combination of this Bill and other measures we have taken for local authorities to have the planning powers and the funding they need to move this agenda forward will mean that we see what we all want to see from this.
My noble friend Lord Hunt referred to the OBR report and the potential growth that can be unlocked by this Bill. I am sure that we will continue to debate the aims and impacts of the Bill as we make our way through the amendments tabled for debate. In the meantime, I kindly ask noble Lords to withdraw their amendments.
Baroness Neville-Rolfe (Con)
Before the Minister sits down, can I press her on the issue of delays? Saying that the whole package is going to be better and improve things, and therefore growth will come—which we all want—is an ambitious statement, but has any work been done on what the changes will be and what differences they will make? I am on her side and want to try to speed things up, but there seem to be quite a lot of things that are going to slow them down, particularly if we agree to the wrong sort of amendments. Has any academic work been done on this that I could reference? I am not yet clear that we are going to get the speed that we need in the system, particularly on things like the grid.
Baroness Taylor of Stevenage (Lab)
I asked the same questions myself, because I suspected I was going to be asked them as part of the debate on this Bill. I asked what work had been done, prior to the Bill, on consulting more widely with the sector, the academics involved in this area and a number of other bodies. I would read it all out, but it is a nearly six-page list of all the work that was done prior to the Bill being drafted. I am happy to circulate it to noble Lords, if that would be helpful.
Lord Hunt of Kings Heath (Lab)
My Lords, in asking your Lordships to agree, I will withdraw my amendment to the amendment tabled by the noble Baroness. I thank my noble friend for an excellent winding-up; she covered the ground comprehensively. I also thank the noble Baroness, Lady Pinnock, because it has been a real service to allow us—
Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)
Sorry, it is for the noble Baroness, Lady Scott, to deal with Amendment 3 first.
Baroness Scott of Bybrook (Con)
The noble Lord cannot withdraw his amendment until I have withdrawn mine.
My Lords, I thank the Minister for her replies and I look forward to continuing to work with her throughout the Bill. I again thank the noble Baroness, Lady Pinnock, for bringing this forward; it is a debate that is useful to have at the beginning of any Bill, just to set the tone.
I want to return to the central issue, which was raised repeatedly by nearly every noble Lord who spoke in this debate, and that is the future of local democracy under the provision of the Bill. At Second Reading and again today, the Minister insisted that this legislation does not represent an attack on local democracy. She reaffirmed the Government’s position that local decision-making remains central to the planning process. I fear we may be reading different Bills, because in clause after clause the principle of localism—the very foundation of community-led planning—is being eroded. We are witnessing the repeal of large sections of the Localism Act and seeing the introduction of powers that allow government-imposed national and significant infrastructure projects to bypass not only local consent but, in many cases, meaningful public engagement altogether. This Bill shifts power upwards, away from communities and towards the centre. That is why I believe that paragraph (d) of the purpose clause is not only helpful but essential. It reasserts a principle that should never have been up for negotiation: local voices must be heard and development should happen with communities, not to them. I thank all noble Lords who contributed to supporting this principle.
Finally, I turn back to paragraph (c) of the proposed purpose clause. This is clearly an emotive issue, and rightly so. It has drawn attention from across the Committee today, not least because of the direct relevance to Part 3 of the Bill, which risks weakening vital environmental protections at precisely the moment we should be strengthening them. It represents a step backwards, a regression from the hard-won safeguards enshrined in the Conservatives’ Environment Act. The problems do not stop there: there are gaps, inconsistencies and serious omissions. I urge the Minister to please step back, listen carefully and engage with these concerns, not just from the Committee but from a broad coalition outside it.
I hope the Committee will forgive me—it is quite personal—if I say that in my opinion it is bizarre that during the passage of LURB, noble Lords blocked reform of nutrient neutrality in this place. This leaves me curious to see whether they will raise the same concerns now that nutrient neutrality provisions are in their own Bill. We have wasted a number of years when up to 160,000 new homes could have been built in this country.
I conclude by reaffirming that we are committed to working constructively with the Government throughout Committee and in the remaining stages of the Bill. We want to deliver more homes and the important infrastructure that this country needs, but we need the process to get that right.
I had the privilege of working on the Levelling-up and Regeneration Bill, and many noble Lords will recall the year I spent taking that legislation through this House. With the same level of commitment I had to that Bill, I look forward to engaging with the Minister to ensure that we get this Bill through and get it right. At this point, I beg leave to withdraw my amendment.
Lord Hunt of Kings Heath (Lab)
My Lords, I apologise to the noble Baroness for interfering before she withdrew her amendment to my amendment. I will now withdraw my amendment to the amendment from the noble Baroness, Lady Pinnock.
It has been a really good debate in which we have fleshed out some of the key tensions contained in the Bill. We have to be realistic. It is easy to take all the principles that the noble Baroness mentioned and say that at the end of the day, they will all be fine, we will get on with infrastructure investment and building our 1.5 million homes and it is all going to be straightforward. We know it is not. In fact, there are real tensions here and some things will have to give. My argument is that the most important issue here, above all else, is to get the growth agenda going. I beg leave to withdraw my amendment.
Baroness Pinnock (LD)
Amendments upon amendments upon amendments is a novel approach for me. I too thank everyone who has engaged with this debate; it has been a positive and constructive one that I hope will lay the foundations for the rest of the Bill. We are all anxious to get critical infrastructure built in this country. I particularly reference the noble Lord, Lord Hunt, and energy infrastructure. We have to find a way of doing that much more promptly than is currently the case.
My amendment is about not trying to prevent development and infrastructure being created but finding the right balance—the noble Lord, Lord Banner, used the word proportionality—between what the country desperately needs and how far local communities can influence those changes. The noble Lord, Lord Hunt, used the word tension, and that is where I think it lies.
It always strikes me that one of the responsibilities of those of us fortunate enough to be elected politicians is to make those arguments to people, to say that we need more homes and therefore this is how we are going to do it. I have done it in my own ward just lately. Making that case is one of the responsibilities put on us if we are fortunate enough to be elected.
I take issue with something the Minister said. She said that we do not need a purpose clause but then listed the five things that are the purpose. I listed only four but we could add the fifth, which is about strategic planning. That is why it is important to lay down these points before we enter the next stages of debate.
The Minister said that local communities can engage at the local planning stage. I have taken at least two—it could be three—local plans through the area that I represent. It is extraordinarily difficult to get folk to engage in theory, because all you have is a map when you say to them, “This is going to be a housing site and this is going to be a business site”. I have tried hard, but it is very difficult to engage people on that. I have no doubt that we will return to that point.
I will make two more points before I withdraw. First, we need a definition of affordable housing; we on these Benches will pursue that. Secondly, the amendment about building 1.5 million homes, tabled by the noble Baroness, Lady Scott, would have been greatly enhanced if it had included the essential element of homes for social rent. On these Benches, we will keep pressing that we desperately need homes for social rent above almost anything else. I am tired and angry at some of the conditions that people in my area are living in. If we could have decent social homes for rent, it would greatly enhance their lives. With that anger, I thank everybody for their engagement and beg leave to withdraw.
Lord Hunt of Kings Heath
“(4B) The Secretary of State must ensure that in each review—(a) maximum deadlines are set for statutory consultations to be completed for proposed developments which are classified as Nationally Significant Infrastructure Projects,(b) if no response is received from a statutory consultee within the period specified in paragraph (a), it must be taken to mean that the statutory consultee as consented to the proposal, and(c) benchmarking is published alongside the review to compare UK performance with other countries in relation to the cost and timing of developments classified as Nationally Significant Infrastructure Projects encompassed within the review.”Member’s explanatory statement
This amendment seeks to provide further detail about the review of national policy statements with the intention of improving the clarity and speed of the planning process.
Lord Hunt of Kings Heath (Lab)
My Lords, I do not want to return to the previous debate, but there is a general view that the current arthritic planning and regulatory system is a barrier to efficient infrastructure delivery. In the previous debate I referred to the excellent report by Dr Mann Virdee for the Council on Geostrategy, which identified many of the problems. In essence, we have a system where doing nothing is safer than doing something, and where process has eclipsed purpose—that point was put across very well by the noble Lord, Lord Mawson, in our first debate.
Another signal of our problems is the cost of infrastructure investment. On projects such as rail and road, we have unacceptably high costs in comparison with comparable nations. HS2 was budgeted for £37.5 billion; it is now £110 billion. The Lower Thames Crossing was budgeted for £5.3 billion; it is now £9 billion. Hinkley Point C was budgeted for £18 billion; it is now £40 billion to £50 billion. There are many more examples. It is not all due to the planning and regulatory constraints, but they have certainly played their part.
I strongly welcome much of the Bill, particularly the intent to streamline the nationally significant infrastructure projects and the reduction of judicial review opportunities; I very much acknowledge the work of the noble Lord, Lord Banner, and his review on that. The Minister today sent us a letter setting out what further action will be taken in what I think is a very short space of time. I am also very interested in the Bill’s intent to scrap the specimen-by-specimen, site-by-site approach to protecting nature, and to replace it with the nature restoration fund.
I welcome the provisions on energy, partly because my old department wrote them and therefore I could not but applaud and welcome the work that DESNZ has done there. The provisions will make a real difference. The big question for us is: will this be sufficient?
From talking to developers, it is clear that they will have to navigate relevant national policy statements, the DCO regime, the EIAs, the dozens of secondary licences and consents from other regulators, judicial reviews, and the various tiers of local authorities that will be involved. Indeed, in nuclear development, we have a parallel justification process, which is lengthy and expensive. I am very hopeful that the current task force looking at nuclear regulation will come forward with recommendations on whether we can avoid that duplication.
We will come on to Part 3 at some point in September. But there are some real questions about whether EDPs can deliver for major infrastructure projects. I clearly see the benefits where you have lots of housing developments in a particular area. But there are some issues around major infrastructure developments. As Catherine Howard, head of planning at Herbert Smith Freehills Kramer, has written, there is a risk that developers will need to twin-track the EDP process by also going through the traditional habitats assessment regime because an EDP was not in place in time for the consent application. Clearly, that is going to be a real problem for developers.
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.
Lord Ravensdale (CB)
My Lords, I support Amendment 8, in the name of the noble Lord, Lord Hunt of Kings Heath, to which I have added my name. I emphasise the points he made, in that I think the biggest risk with this Bill is that it will not deliver for large infrastructure, in the sense that it will not address the concerns around environmental regulation.
Part 3 is very well set up for housebuilding, but if we look at the high-profile issues with environmental regulation that we have seen with some of our large projects, such as the HS2 bat tunnel or the acoustic fish deterrent—the fish disco, as it is called—we find that those were all habitats issues that were uncovered when the developers started to assess the site and figure out how they were going to operate their specific piece of infrastructure. Those are not the kind of things that would have been addressed through the proposed environmental delivery plan mechanism or the nature restoration fund. It simply does not match up with the timescales of how the EDP process would work. That is something that we will come back to later in Committee.
However, there are some welcome things that the Government are looking at, and I welcome the amendment from the Government to remove the statutory requirement for a pre-application process on NSIPs. What the noble Lord, Lord Hunt, has proposed sits alongside that really well, in setting out maximum deadlines and no-response provisions. This measure would be helpful to emphasise that and help speed large infrastructure through the system by making it a statutory requirement.
Lord Jamieson (Con)
My Lords, I thank the noble Lord, Lord Hunt of Kings Heath, for leading this group on national policy and for his advocation for speed and simplicity, taking away two of the points that I was about to make. This goes to the heart of what our planning system needs to have: clarity and speed. Policy needs to be clear and consistently implemented, so that developers, planners and local councils understand what is required and how decisions will be made in a way that reduces risk and cost to all parties, while being clear and transparent to the public.
On timeliness, projects need to move through the system efficiently and effectively so that they are delivered on time and to avoid unnecessary, costly delays. How does the Minister intend to provide further detail about the review of national policy statements and ensure that clarity, consistency and timeliness are truly embedded in that process?
Amendment 9, to which I have added my name, seeks to probe the meaning of “exceptional circumstances” in the context of reviewing or amending national policy. Its aim is to clarify the intent behind the term, while still ensuring that Ministers retain the flexibility that they need for genuine national emergencies. My concern is that an amendment to the national policy statement, as required by new subsection (5A), could be delayed if the threshold for what constitutes “exceptional circumstances” is vague. I would be grateful if the Minister could set out what she considers would fall within the scope of that phrase and whether the current wording risks introducing unnecessary uncertainty or even a shift in overall approach.
We need to strike a careful balance, avoiding the risk of judicial review while maintaining sufficient ministerial flexibility in genuine emergencies. Governments must be able to act swiftly when needed yet, if a decision is justified solely on the basis of exceptional circumstances, it becomes difficult to test or challenge that rationale. Courts often defer to such open-ended terms, which can weaken accountability, and your Lordships’ House may find it difficult to challenge the use of powers in this area. I would welcome reassurance from the Minister that the wording achieves the right balance.
Finally, I thank my noble friend Lady Coffey for her carefully considered and valuable contribution to this group. Her insight and experience will be vital in improving this Bill. In particular, I highlight Amendment 13 tabled by my noble friend. This amendment is vital, because it would preserve parliamentary accountability by requiring the Government to formally respond to any resolutions or recommendations from Select Committees. That, in turn, would help to clarify policy direction early, reduce uncertainty for developers and ensure timely engagement with concerns before they can cause delay. Stronger scrutiny at this stage can help catch potential issues before they escalate.
I also thank other noble Lords who have spoken in this debate—the noble Lords, Lord Hunt of Kings Heath, Lord Mawson and Lord Ravensdale—in particular on the continuing issue of EDPs and their fitness for purpose, and the role of Natural England, which is something that I am sure we will come back to again and, possibly, again.
The amendments we have just discussed are small but significant measures. I hope that the Minister can provide your Lordships with the answers to these questions and engage the knowledge the Committee brings to ensure that we get this right.
Baroness Pinnock (LD)
My Lords, the noble Lord, Lord Hunt, began this group in talking about the tensions that are to be found in creating the balance between getting the critical infrastructure that this country desperately needs and how we go about doing it. He quite rightly reminded the Committee of the escalating costs of particular infrastructure developments and gave the reason that risk aversion leads to piles of paper being produced to make sure that nobody is caught out by any of the challenges to the decisions that have been made.
I agreed with that; that is right. But the national policy statements, which are the foundation stones of planning and infrastructure development in this country, are critical. The noble Baroness, Lady Coffey, is right to point out that any fundamental change to our national policy ought to have proper public accountability through your Lordships’ House and from the other place. She is quite right to do that, because accountability helps the process: it helps to maybe expose weaknesses in what is being proposed and maybe enhance the policy statement itself. In the rush for growth, we ought not to throw out the accountability that is essential in planning and infrastructure development—I think that that thread will run through discussions of the Bill. That is the dilemma and the tension we have: where do we have accountability, how much weight do we give to it and how much weight do we give to the urgent need for development? We are going to have to find our way through that.
Everybody here is, I think, anxious that the country is able to produce particularly critical infrastructure and housing without undue costs and delay. It is how we get there that is the problem. I am on board with the noble Baroness, Lady Coffey, in wanting any changes to national policy statements at least to be brought before the House as affirmative resolutions. With that, I look forward to the Minister weaving her way through these dilemmas.
Baroness Taylor of Stevenage (Lab)
My Lords, a number of amendments tabled by my noble friend Lord Hunt of Kings Heath, the noble Baroness, Lady Coffey, and the noble Baroness, Lady Scott of Bybrook—whose amendment was spoken to by the noble Lord, Lord Jamieson—seek to amend Clauses 1 and 2 of the Bill, which set out new expectations for the regular updating of national policy statements and also establish a streamlined procedure for updating national policy statements when select changes are made to them.
Amendment 8 was tabled by my noble friend Lord Hunt of Kings Heath. I thank him for the amount of thought that he has clearly put into improving the Bill—and some very radical thinking, which we will come to in later suggestions, but which is always welcome. His amendment was also signed by the noble Lord, Lord Ravensdale. While I absolutely understand and share the desire to improve the speed and clarity of the planning process for nationally significant infrastructure projects and national policy statements, I believe that the amendment’s wholesale approach could potentially have unintended consequences.
First, the amendment proposes fixed time limits for statutory consultation. In the case of national policy statements, statutory consultation is not typically the cause of delay, unlike development consent orders, where we have removed the statutory requirement for pre-application consultation. For national policy statements, the time taken for statutory consultation varies significantly depending on the complexity of the policy area and the nature of the infrastructure involved. Imposing a uniform time limit risks undermining the quality and thoroughness of consultation, especially for those more complex or contentious sectors and projects. The Government’s own consultation principles make it clear that consultation should be proportionate—I think we will hear that word a lot during our debates—to the potential impacts of the proposal.
Secondly, the amendment attempts to tackle concerns about the timeliness of responses by statutory consultees to national policy statement consultations and requests for further information on development consent order applications. Our experience on national policy statements is that statutory consultees respond adequately and without too much delay. We appreciate that there is evidence of slower responses from statutory consultees on live development consent order applications. However, the idea that statutory consultees should completely lose their right to comment on an NPS if they do not respond within a set timeframe may be a step too far or too rigid.
Statutory consultees such as the Health and Safety Executive play a critical role in safeguarding public welfare. Their input is not optional but essential. Instead of removing their critical role in the process, the Government are actively reforming how they prioritise and resource their work across the planning system. This includes measures in the Bill that enable statutory consultees to fund their services across the broader planning system more sustainably and requires them to have regard to government-issued guidance on their role in the NSIP regime.
For the first time, this provides a statutory mechanism to ensure that consultees engage appropriately and in a timely manner, without compromising the integrity of the process. National policy statements are the cornerstone of the NSIP consenting process. I recognise that the spirit of these amendments is in keeping with wider approaches taken to make the system more productive and streamlined. However, the issues faced by national policy statements manifest themselves differently. In practice, these amendments would have unintended consequences that risk damaging how the NSIP system operates.
Baroness Coffey (Con)
The reason I know so much about this and there was a debate on the national networks is that I kicked off a hell of a fuss and the Leader of the House then pledged that the Government, despite it not being in the law, would do these resolutions. My concern is about the fact that so much depends on what the Front Bench decides to do with time. That is why I am concerned about it, but I appreciate what the Minister has said.
Baroness Taylor of Stevenage (Lab)
I thank the noble Baroness, and I understand her expertise in these matters. If she still has concerns, I am happy to have another conversation with her.
Amendment 16 would require the environmental principles policy statement to be considered in the development of national policy statements. The environmental principles policy statement is a statutory document that aids policymakers in how to interpret and proportionately apply the five environmental principles. Policymakers are assisted in assessing the environmental impact of policy, but this is not a replication of the environmental impact assessment process. The principles are not rules and do not dictate policy outcomes. Ministers are under a statutory duty to have due regard to the environmental principles policy statement when developing policy, including NPSs. This is a matter of legal compliance and is embedded in the policy-making process.
Furthermore, national policy statements are also required by statute to be accompanied by an appraisal of sustainability which incorporates the sustainability appraisal as well as the strategic environmental assessment and ensures that environmental considerations are fully integrated. A habitat regulation assessment must be undertaken for a national policy statement to comply with the requirements of the Conservation of Habitats and Species Regulations 2017. The preparation of an assessment of sustainability is a comprehensive process and includes an examination of the likely environmental effects of designating a national policy statement and the reasonable alternatives to a national policy statement. It also requires the Government to set out measures to mitigate any significant negative effects identified and any enhancement measures.
The assessment of sustainability is an iterative process done in conjunction with the updating of a national policy statement. For example, I encourage Members to read the assessment of sustainability that was published alongside the National Networks National Policy Statement, which I am sure the noble Baroness, Lady Coffey, will already have done. It sets out a clear methodology of all the above and the environmental principles considered when developing the policy and potential alternatives.
I know that has been quite a long explanation, but I felt that the detailed nature of the amendments warranted going into some detail. For those reasons, I do not believe that a separate written assessment within each national policy statement is necessary.
I turn to some of the points raised by other noble Lords. My noble friend Lord Hunt referred to the capability and capacity of Natural England. That issue has been raised many times—it was raised in the other place and has been raised again here—and we will come to it when we start to debate Part 3 of the Bill.
I wonder whether the noble Lord, Lord Mawson, meant the building safety regulator. I was not quite sure which regulator he was talking about but am happy to answer any questions about that. We have done significant work with the building safety regulator to try to speed up the process. We have increased its resources and changed the chief executive. Things are moving much more quickly already, and the development industry is already seeing a change.
The noble Lord, Lord Banner, spoke about the precautionary principle. We have already had discussions about that today. We have to look out for the proportionate use of precautionary principles without going over the top and gold-plating everything, which I am afraid has been too much of a feature of the planning system in the past.
I thank the noble Lords, Lord Ravensdale and Lord Jamieson, and the noble Baroness, Lady Pinnock, for their contribution to the debate. With all that said, I kindly ask noble Lords not to press their amendments at this stage.
Lord Hunt of Kings Heath (Lab)
My Lords, I am grateful to my noble friend. I thought she gave a very comprehensive and helpful response, and obviously I will withdraw my amendment.
It seemed to me that there were a number of threads, but a particular one is the relationship between what the legislation is seeking to achieve, the role of regulators and planners and the interface with the democratic process. The noble Baronesses, Lady Coffey and Lady Pinnock, had some important points to raise here. In the end, we have collectively created—and Parliament is guilty of this—a whole panoply of quangos and regulators, and I suspect that those who have been Ministers are all guilty of that. Some of that seems to be entirely justified; for instance, you want the Office for Nuclear Regulation to be robust and independent. As a Health Minister, far too many years ago, I was part of the team that created independent reconfiguration panels because Ministers were not able to take decisions on the closure of hospitals as it was all too difficult, so sometimes there is a justification for offshoring. But I agree that we have gone too far and that we need to draw a distinction between the independence of regulators in making judgments and our role as parliamentarians and as Ministers in being tough about their performance, which is what lies behind my amendment.
I understand what the noble Baroness, Lady Coffey, means about the issue, particularly in her patch, where a number of different NCOs go through under different NSIP regimes—the noble Baroness, Lady Pinnock, could talk about cumulative impacts, which I understand—where regulators seem unable to work together, and the box ticking and the judgments they make mean that a collaborative enterprise becomes very difficult. I suspect that is what the noble Lord, Lord Mawson, was talking about in the East End. He, with a fantastic track record in doing this, has a scheme that is partly about improved NHS primary care provision, with housing attached and maybe even commercial development. We are dealing with a host of different bodies, all of which deal with these things in a compartmentalised way, and somehow we have to get through it.
This is partly about the work that the noble Lord, Lord Banner, is doing on the relationship between the proportionate and precautionary principles, and it is also partly about making sure—as the noble Lord, Lord Ravensdale, said—that the new system we introduce asks whether EDPs fit with major infrastructure projects.
Parliamentary oversight, in one way or another, is one way we can overcome some of the barriers, and I have later amendments that put forward some ideas about that. If the democratic process can legitimise the speed-up of what we seek to do, that would be a very helpful move forward. Having said that, I beg leave to withdraw my amendment.
Baroness Coffey
Member’s explanatory statement
This is to probe why it is necessary for Government-imposed NSIPs to have no planning consent or public engagement.
Baroness Coffey (Con)
With Amendment 17 I will also debate Amendments 18 to 23 in my name. These have been described as a “redirection”; I am not exactly sure what that means, but there is a theme that I hope will become clear. I thank my noble friends on the Front Bench for adding their names to Amendments 17 and 23.
As the Explanatory Notes and various bits of memoranda make clear, this clause is designed to try to speed up aspects of planning, and I understand that flexibility may be wanted. I was a bit surprised when Minister Pennycook in the other place suggested in Committee, talking about offshore generation, that perhaps the MMO could become the planning authority in that regard. The MMO is simply not big enough to get into that.
The theme through my amendments is the fact that a Secretary of State has some literally very special powers, called special development orders. That is why I have tabled some quite detailed amendments. While the narrative, including in Committee and in various memoranda, has been that it can go to an alternative consenting authority, the reason I have tabled these amendments is that there is an alternative consenting authority: the Secretary of State himself or herself.
Amendment 17 tries to probe why the Bill refers to Section 59. You do not need to go through the NSIP and DCO process because the Secretary of State could, more or less, just authorise this tomorrow, without any public consultation, engagement and all sorts of things. The Secretary of State already has the power to do that. I expect that it is usually used for things such as MoD land, so the reasons may be somewhat related to national security infrastructure and so on, but I am concerned that this hands a heck of a lot of power to the Secretary of State, and we should at least be considering that carefully.
That is particularly true when thinking about nuclear and other energy generation, which my Amendment 23 covers. The amount of land taken by most energy projects is pretty significant, not just land for the station itself or the transmission network but the preparation land. That is why I would like to see a commitment, ideally in law, that this will never apply to where a Secretary of State themselves can, on request, give planning permission to something from a developer.
I turn to another aspect of my amendments. This is a novel process—I think that is the explanation in various memoranda—and it will be done by regulations. Putting in the Bill three months for the Secretary of State to make a particular decision seems reasonable if the whole point of this is that it be done quicker. By the way, that is just considering whether something should go through the DCO process or an alternative consenting authority.
In the debate on the first group, I clumsily mentioned the Minister’s commitment to write. It was actually Minister Pennycook, in the House of Commons Committee where this was considered, who pledged several times in the debate on this clause to write to the Committee. That letter may have been sent to the members of the Committee, but it certainly has never appeared on the Bill website or been deposited in the Libraries of either House. He pledged to give more examples of how this would work in practice. The reason for me probing this today is that we could end up with some kind of Stalinist Secretary of State who is determined to build whatever they like anywhere and everywhere. As it stands, through this amendment and this new clause, we will give them the powers to do that, and I do not think we should. That is why I wanted to look at this clause.
I turn to Article 6 of the convention on human rights. Again, a back-up memorandum says:
“These alternative consenting regimes are likely to be … the Town and Country Planning Act 1990, Highways Act 1980, Transport and Works Act 1992 and the Harbours Act 1964”.
But it does not say that it will be only that, which, again, is part of my concern.
So, in a variety of ways, this is probing to see whether we can properly get, in effect, a commitment from the Government on the Floor of this House or through a letter from the Minister—if it is not in legislation—that can candidly be used in a future court case when somebody might want to oppose the Secretary of State doing something so draconian. It would show that it was made clear to this House and this Parliament that that would never happen. So far, none of the back-up memoranda or Explanatory Notes makes that explicit, and that is what I hope to achieve today.
I am particularly concerned about energy projects. The noble Lord, Lord Hunt, is no longer in his place, but I explained on the previous group that I have extensive experience of trying to handle NSIPs as a Member of Parliament and now as a Peer in this place, and I am still very concerned about my local community and what is happening in that regard. With that, I beg to move.
Baroness Scott of Bybrook (Con)
My Lords, I thank my noble friend Lady Coffey for explaining this group. That leaves me no need to go through it again, but I am pleased to support her Amendments 17 and 23. I will be brief, but I wanted to say something about both of them, especially Amendment 17. This amendment is vital because it probes the fundamental issue of democratic accountability and local consent. If the government-imposed national significant infrastructure projects can proceed without planning consent or public engagement, we risk undermining public trust by excluding communities from decisions that directly affect them. This also weakens local accountability by sidelining local authorities and stakeholders, and it increases the risks of legal and political challenges, as the lack of consultation may well lead to resistance or even to judicial review.
Probing this issue is essential to ensure that any such powers are used only when they are truly justified—when they are proportionate to the situation and exercised with true transparency. I raised this concern in the opening group today, and it is one on which we really need some clear answers. I ask again, why is it necessary for government-imposed NSIPs to bypass both planning consent and public engagement? How is this consistent with the Government’s continued claims that localism is protected?
Baroness Pinnock (LD)
My Lords, I apologise for not preceding the noble Baroness, Lady Scott.
Amendment 17 would remove the required consent for the construction of or extensions to a generating station for electricity. Can the Minister explain why, in this instance, the government proposal is that it be disapplied from the existing requirements for going through a proper process? It is important to understand the reason. If it is for timeliness, what causes the delays? If it is for reasons of cost, is that related to timeliness? Is there another way to have accountability and public discourse without creating delays and cost pressures? Otherwise, why would we want to disapply the current requirements for consent? Again, there is a thread of accountability running through this: there is a tension, as the noble Lord, Lord Hunt, mentioned, between getting things done and accountability for local communities.
With those few comments, I look forward to a detailed answer from the Minister.
Baroness Taylor of Stevenage (Lab)
I thank the noble Baroness, Lady Coffey, for tabling these amendments. As she said, they are probing amendments, and I hope to be able to give her an explanation. She again mentioned the letter that Minister Pennycook promised. I have asked to be informed whether that letter was sent. If it was, I will provide the noble Baroness with a copy, but it would not be usual, I suspect, for copies of letters that were circulated to a committee in the other place to be automatically circulated here. If that letter exists, I will send it to her.
All the amendments in this group, tabled by the noble Baroness, Lady Coffey, seek to amend the operation of the redirection process as set out in Clause 3, including the replacement of regulation-making powers with time limits or statutory guidance. I recognise that Amendment 17 is probing, so I will first seek to explain how the redirection process has been designed before addressing some of her concerns head on and then turning to Amendment 23. I apologise if these explanations seem very detailed, but it is important to take the time to explain properly.
The NSIP regime was designed to provide a single route through which to consent all types of large-scale infrastructure schemes. As we know, on occasion this one-size-fits-all approach is not proportionate for specific developments. Clause 3 seeks to address this by creating a new power for the Secretary of State to issue a direction disapplying the requirement for schemes above the NSIP thresholds to seek development consent. Clause 3 sets out the circumstances in which a request for a direction may arise, what a request may contain and the steps the Secretary of State must follow in responding. Crucially, the Secretary of State may direct development out of the NSIP regime only if they consider an alternative consenting route to be appropriate given the particular circumstances of the development in question. Enhancing the flexibility of the planning system in this way should reduce burdens on applicants which are otherwise disproportionate and support the Government’s ambitions to have a streamlined planning system. This level of flexibility already exists under the Planning Act.
Section 35 enables the Secretary of State to direct into the NSIP regime those projects which fall outside of the statutory thresholds but which have none the less requested to follow the process for nationally significant infrastructure schemes. This has been invaluable, as we know, for enabling numerous water schemes to progress.
Clause 3 provides that flexibility but in the other direction. It may be that a transport scheme is located in an area with a supportive local authority and does not require the acquisition of land. Instead of requiring the entire scheme to become an NSIP, an applicant could now request to follow the route that is most appropriate to their project. As the Government’s working paper on proposals to streamline the consenting process for infrastructure acknowledged, the existing thresholds have not kept pace with technological advancements. This has held back projects from coming forward—for example, medium-sized schemes—because the process of obtaining development consent was out of kilter with the relatively straightforward nature of the scheme.
Baroness Coffey (Con)
I thank the Minister for her comprehensive response. On Amendment 19, I gently say that it would be “within” three months, so ideally it could be within a day—however, I do not want to quibble unduly.
There is definitely concern about what sort of development orders could be in place. The Government are currently publishing in the Bill, and elsewhere, all sorts of things about devolution, and there is still some anxiety about whether local development orders or simplified planning zones could become part of this when they would not necessarily be suitable. Perhaps I will write to the Minister and we can have nice cup of tea and chat further. With that, I beg leave to withdraw the amendment.
Baroness Pinnock
Baroness Pinnock (LD)
My Lords, Amendments 24 and 25, in my name, relate to Clause 4, in which the Government seek to remove certain pre-application requirements. I am concerned about two of these. The first omits the duty to consult and the second omits the duty to consult the local community. These are very significant changes to pre-application requirements that were introduced in the Planning Act 2008. In my experience, pre-application is an extremely helpful part of the process, as it enables information to be shared and discussed by the communities that will be affected and their elected representatives—councillors and Members of Parliament.
The value of a pre-application duty to consult seems to me to be vital, particularly in relation to infrastructure schemes. The opportunity for communities that are affected to understand the proposals and their impact is much reduced by the process that is followed for large-scale infrastructure applications. For example, the process for large-scale infrastructure is set out very well in the Explanatory Notes, which talks about the pre-application process followed by the submission and acceptance of the application, then the pre-examination stage where members of the public can register as interested parties—although that is subject to some change—and then the examination in public. The opportunities for the general public, as opposed to those who feel they are able to take part in an examination in public, are extremely limited. Therefore, the pre-application stage becomes even more important in relation to large-scale infrastructure applications.
In my experience, the importance of the pre-application process is that it can be invaluable to both the developer and the local community. I will refer to an example not of a large-scale infrastructure application but for 400 homes on a site near where I live. There was a pre-application consultation stage with members of the public. The application was for a site that was known to have been used for coal workings, and the official coal board documents did not identify precisely where all the mine shafts were—they actually did not even know how many there were. However, residents whose families had lived in the area for a long time knew where the mine shafts were and shared that local knowledge with the developer. They were also able to share information, which did not seem to exist formally at all, of the shallow tunnelling on the site.
In this instance, the housing developer gained considerably from the pre-application process in knowing where the mine shafts were that would have to be capped off, and knowing where the shallow tunnels for the coal workings were, which could require attention during the construction phase. The local residents benefited because it enabled them to understand and be provided with factual information by the applicant.
In my view, the changes proposed in the Bill to remove the duty to consult with the local community would be totally counterproductive. Members of the community will get information about the proposals which may not be accurate if there is not a pre-application opportunity. I know from experience that, once inaccurate information is shared on social media sites, it is very difficult to counter and to get the actual situation accepted. The climate in which development takes place these days is for the public to believe that the worst is going to happen.
If the pre-application stage for large-scale infrastructure is believed to be too lengthy with too many parts to it, it seems to me that the best way forward would be to retain the principle of pre-application but to reform the process so that it was not so time-consuming and did not delay the construction processes. That is why the pre-application process is absolutely vital. Removing the duty will simply make the process more challenging for the developer and resentment and frustration will grow, both against the development and at the failure of the democratic process. Living in a democracy involves making time for debate and challenge; it is the price we on these Benches are willing to pay. I beg to move.
Baroness Coffey (Con)
My Lords, I will speak to this group of amendments. My noble friend Lady McIntosh of Pickering degrouped some of her amendments. Because I signed some of them, there is a risk that I might end up duplicating my words in the next debate, but that is not my intention.
Baroness Neville-Rolfe (Con)
My Lords, as it is Committee stage, I have some simple questions about pre-application with a view to trying to move this important conversation forward. First, are the pre-application arrangements different if a use is already in the local plan? On the coal mine example and water extraction, those should be in the local plan. We have a big problem, because more than half of local plans are not up to date, which was certainly a big concern of mine when I was sitting on the committee.
Secondly, presumably, a developer can do a voluntary pre-application process, or is that not practical? A lot of my experience was in large retail developments. We did a lot of this sort of stuff because we wanted to get local consent. It is a question of what you can do which is voluntary and what is required.
Thirdly, what are the biggest delay factors in the pre-application process? Is it transport objections, heritage, environment features—such as nutrient neutrality or bats—or lawyers going around in circles? Have the Government had a look at what the problem is?
Fourthly, is there an alternative route where you have a much shorter process, perhaps with a deadline and only for the big schemes and not for a small house? This is an important area in local communities, but we want to get the delays down.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I support my noble friend Lady Pinnock’s amendment. Pre-application consultation, as she correctly said, not only gives communities a chance to shape proposals but can speed up things further down the line. It is not necessarily a delaying factor.
The noble Baroness, Lady Neville-Rolfe, just raised an interesting issue in that we do not know what the delaying factor is. Is it the statutory consultees, far more than the communities, for example, that are part of the delaying factor? Given the scale of the Government’s ambition, quite rightly, to develop housing and the accompanying infrastructure, and to make master plans to do that, it is much better to take the community along with you. If the community already feels left behind because it is cut out at the very first stage, which is what the Bill does, then however many nice words may be said later by the development corporations or so on, that is not really going to cut much ice. Therefore, the amendments tabled by my noble friend are particularly important.
I also really do not like the fact that, even if communities and the public have made some responses, there is no requirement for the people doing the development to take that into account. Again, that is a very disempowering issue, which undermines the whole democratic basis of our planning system.
Baroness Bennett of Manor Castle (GP)
My Lords, I offer my strong support for the entire presentation from the noble Baroness, Lady Pinnock, and her amendments. I cannot top her example of unknown mines underground, but the example that I was thinking of is on a much smaller scale, and it addresses the point raised by the noble Baroness, Lady Neville-Rolfe. She said that those mines, et cetera—the physical infrastructure—should be on the record; I think we all know that very often they are not.
However, there is also the question of the local community and how it works, which is never going to be written down. The example that I was thinking of comes from central London, from Camden borough. I was at a meeting where the council came along very excitedly with the idea that it was going to knock down a community centre, build housing, and build a new community centre on what most people from the outside thought were some pretty unpleasant, small, raggedy corner shops—a little row of shops which you get typically in suburban areas. The council officers and the local councillors were visibly astonished when local people, mostly elderly, were up in arms and horrified about the idea of those shops being demolished. They said, “We’re not mobile enough to get to Camden High Street and we’re scared of the traffic on Camden High Street and the speed at which it goes. Even though these shops are probably both very expensive and don’t have a great range of goods, et cetera, we hugely value them”. That is just a small-scale example of how only communities themselves know the way in which they work. If they had had input earlier on, there would not have been lots of very angry pensioners at that meeting, as we saw.
Amendment 107 in the name of the noble Baroness, Lady Miller, is really important and picks up the use of technology, and potentially its positive use, and sets out rules for it. Again, I am afraid that my next example is also from Camden, because that is where lots of my planning stories come from. The Crick centre was imposed on the local community—I declare a retrospective interest in that I was the chair of the St Pancras and Somers Town Planning Action committee that opposed it, a long time ago. When it was finally built, people said, “But that doesn’t look anything like what the pictures looked like”. I think that is something that we are all extremely familiar with. The idea of creating some standards and rules—they already exist, but we should put them into statute—seems an extremely good one.
Lord Jamieson (Con)
My Lords, first, my apologies: I should have mentioned my interest as a councillor in central Bedfordshire earlier in the debate.
I thank the noble Baroness, Lady Pinnock, for her leadership on this important group of amendments. Clause 4 systematically removes several pre-application requirements. I will focus first on Amendment 25, tabled by the noble Baroness, Lady Pinnock. This amendment seeks to retain Section 47 of the Planning Act: the duty to consult the local community. Can the Minister clarify the Government’s position? Ministers have previously stated that the Bill does not in any way reduce local democratic input. If that is the case, can the Minister explain why the duty to consult communities is being removed? How did the Government arrive at the decision to remove Section 47 of the Planning Act, as my noble friend Lady Neville-Rolfe raised, and what are the specific problems they are trying to resolve in doing so?
We know from experience that when local communities are given genuine influence over planning through mechanisms such as neighbourhood plans, they are often more supportive of new housing and infrastructure—we have heard cases from the noble Baronesses, Lady Pinnock and Lady Bennett, where the local input added significant value—especially when it reflects local needs such as affordable housing, safeguards green space or comes with vital local infrastructure improvements. Indeed, neighbourhood plans introduced under the Localism Act 2011 have in many cases led to more housing being approved rather than less. This suggests that working with communities delivers better outcomes.
Baroness Taylor of Stevenage (Lab)
I thank the noble Baronesses, Lady Coffey, Lady Pinnock, Lady Scott of Bybrook—the noble Lord, Lord Jamieson, spoke to her amendments—and Lady Miller of Chilthorne Domer, for their amendments to Clauses 4 and 5. I am also grateful to Members across the Committee for the way in which they have engaged with these amendments and what we in government recognise as a significant evolution to the nationally significant infrastructure projects regime.
I am sure we all have experiences of the best in consultation—with a developer that not only consults but truly engages with communities over a period of time to get a better development—and those at the opposite end that carry out a half-hearted tick-box exercise and then crack on without changing anything, keeping a laser focus on their bottom line. We want to encourage the former, not the latter.
All the amendments in this group seek, in one way or another, to reverse changes made by the Government in the other place. Those changes will remove the statutory duty for applicants to consult during the preparation of an application for a development consent order. These are significant reforms to the NSIP regime and therefore deserve our attention. It may be helpful to revisit the rationale behind the Government’s decision to amend the Planning Act in this way.
As I outlined in my Written Ministerial Statement on 23 April, the Government are committed to driving economic growth and taking decisions on 150 major economic infrastructure projects before the end of the Parliament. The level of ambition here is high, as indeed it should be. The UK suffers from outdated and inadequate infrastructure, which is holding us back, not only in economic but in social terms. To deliver new roads, low-carbon energy infrastructure and reservoirs, the UK and its communities need to prosper. We must be open to change, and we are willing to do things differently. I sense a change in public perception on this as well. I think people are beginning to realise that if we want cheaper electricity, and if we want water available for housing and general use, we need to move more quickly to develop the infrastructure we need.
The Government will meet our critical infrastructure commitments only if we take this opportunity to address the inefficiencies that have crept into the NSIP regime over time. One of the most pressing issues is the growing duration of the pre-application phase for projects. In 2021, the average time to secure consent had risen to 4.2 years—up from 2.6 years in 2012. Over this same period, average pre-application timescales doubled. We all recognise that that trend is just not sustainable.
In response to the question from the noble Lord, Lord Jamieson, over the past year, the Government have listened to feedback from the bodies and stakeholders most familiar with the development consent order process. That includes developers and practitioners, legal experts, local authorities, statutory bodies and a range of other interested bodies that play very important roles in the process. Through those discussions, it has become clear that the statutory consultation requirements under the Planning Act, though well intended, are now driving perverse outcomes and unintended consequences.
To answer the point from the noble Baroness, Lady Neville-Rolfe, there are a number of reasons why that is the case, including those that she stated and others. The legislative requirements are too prescriptive; rather than fostering the meaningful dialogue that we all want to see, the process has become overly procedural, encouraging risk aversion, excessive documentation—we have already heard about this—and a reluctance on the part of applicants even to adapt proposals for fear of triggering further rounds of consultation. That has led to confusion for communities and delays for developers.
In responding to the point from the noble Baroness, Lady Miller, where there is consultation, an application would normally include key elements of that consultation in the report to the planning body. Although developers have to state their responses to that, even now they do not need to do anything about what the consultation said; they just have to say why they are not doing whatever they have been asked to do. There will often be mitigations in place, but there do not have to be.
Given all these concerns, it is clear that the statutory consultation requirements—uncommon in other planning regimes—are now acting as an absolute brake on progress. The Bill therefore proposes to align the NSIP regime more closely with other planning frameworks by removing these statutory obligations at the pre-application stage. This change is expected to reduce the average time taken to submit applications by around a year and deliver savings of more than £1 billion across the current project pipeline. In the long term, faster delivery will also help reduce household bills.
As set out in my Statement of 23 April, the Government remain firmly committed to a planning system that supports high-quality applications and delivers benefits for both the nation and local communities. We all recognise that the best applications are those shaped through early and constructive engagement. As the Housing Minister emphasised in the other place, we still expect the NSIP regime to operate on a front-loaded basis, with well-developed proposals entering the system and progressing to predictable timescales. In answer to the noble Baroness, Lady Neville-Rolfe, I do not think there is any objection to voluntary pre-consultation if that is what developers choose to do.
Experience from other planning regimes shows that meaningful engagement can and does take place without statutory compulsion, and that developers are best placed to judge how to take a proportionate approach to consult on their applications, which vary in relation to their scale, location and circumstances.
The development consent order process also incentivises high-quality submissions. In order to proceed through examination within statutory timescales, we are confident that developers will continue to engage proactively so that they are well prepared. As well as any consultation and engagement during the early stages of an application’s development, interested parties will still have the opportunity to raise objections, contribute views and present evidence through participation in the examination process.
To support and inform the implementation of these changes, the Government will launch a consultation about guidance later this summer, which will set out that best practice involves developers undertaking consultation and engagement prior to submitting an application. This will help to ensure that applications remain robust and responsive to local concerns.
The NSIP regime relies on developers bringing projects forward to deliver national policy and meet the UK need for infrastructure. We know that the industry has responded positively to the removal of the statutory requirement, with many major developers reaffirming their commitment to meaningful engagement. They are committed to exploring new and better ways to engage with communities.
If these amendments were accepted, we would risk undermining the very purpose of the Bill and the will of Members in the other place, who requested this change to deliver lasting and transformative improvements to the NSIP regime. The current system would remain burdened by unnecessary delays, risk-averse behaviours and a lack of clarity for communities. For these reasons, I respectfully urge noble Lords not to press these amendments.
I turn to Clause 5 and the amendments tabled to it. However, given the importance of Clause 5, I hope noble Lords will allow me briefly to set out the intended impact of the clause before turning to the amendments in question. The clause contains important changes which will enable the Government to deliver on the policy intent of the changes through Clause 4, which, as we have discussed today, removes statutory consultation requirements at the pre-application stage.
Baroness Miller of Chilthorne Domer (LD)
I apologise for interrupting the Minister, but it might be useful for the Committee to know that I had asked for my amendment to be degrouped. I am not sure what has happened here, but it is my intention to move the amendment in its place after Clause 51.
Baroness Taylor of Stevenage (Lab)
Okay, I will not go into the detail on that amendment now but come back to it. It was originally listed as being in this group. I apologise for the misunderstanding. I would just say to the noble Baroness that I am a big fan of digital twinning, so I look forward to the debate on that subject.
I ask noble Lords who have amendments in this group not to press them and I ask the noble Baroness, Lady Pinnock, to withdraw her amendment.
Baroness Pinnock (LD)
My Lords, first of all, I thank the noble Baronesses, Lady Coffey and Lady Bennett, my noble friend Lady Miller and the noble Lord, Lord Jamieson, for their supportive words on my amendments. My noble friend Lady Miller summed it up when she said that it is very important to take the community with you. That is the message to developers. The Minister’s response was: it will be the developers’ decision as to whether they will engage in pre-application consultation. I do not know about other people’s experience of developers, but mine is that if you give them an inch, they will take at least a mile. Not requiring a statutory pre-application consultation will mean that communities do not understand or know the detail or broad-brush approach of a development that, for better or for worse, will have an impact on them.
If the issues that the Minister spelled out very clearly about the delays and costs of pre-application consultations are the problem, as she has stated, then surely the approach should be to reform what is required in a pre-application. I have just had experience of a pre-application process that involved a change to a major highways route of about 15 miles long through the area in which I live. We have had three or possibly four levels of public consultation, and in the end nobody was satisfied because nothing had substantially changed from the first one in which changes were made. The pre-application process should be reformed so that people’s voices are heard, changes are made where appropriate and then there are tweaks as the process goes on.
There is no legitimate reason for not allowing people’s voices to be heard. I feel very strongly about this and no doubt the Minister will hear from me again on Report. With that, I beg leave to withdraw the amendment.
“Applications for development consent: consultation with Category 3 persons(1) In the Planning Act 2008—(a) in section 44 (categories of persons to be consulted), omit subsections (4) to (6);(b) in section 56 of the Planning Act 2008 (notifying persons of accepted application), after subsection (9) insert—“(10) The Secretary of State must issue guidance to applicants about how to identify persons within Category 3 (within the meaning of section 57) for the purposes of complying with their duty under subsection (2)(d) so far as relating to such persons.(11) The guidance must be published in such manner as the Secretary of State considers appropriate.”;(c) in Schedule 12 (application of Act to Scotland: modifications), omit 30 paragraph 5(c).(2) In the Localism Act 2011, omit section 135(8).”Member’s explanatory statement
This reinstates the requirement to consult with category 1 and 2 persons.
Baroness McIntosh of Pickering (Con)
My Lords, I am delighted to speak to the amendments in this group, and I thank my noble friend Lady Coffey for signing a number of them. The reason I asked for this group to stand alone is to have an opportunity for a short debate relating to the changes in Clauses 4 and 5 that the Government have brought in at quite a late stage and to understand the background to those changes.
In summing up on the previous group, the Minister referred to the guidance and perhaps she might be able to elaborate on that, subject to what I am going to say. The Bill removes the requirement on a developer under the Planning Act 2008 to carry out pre-application consultation on a proposed project. That will, I understand, remove category 1 and 2 persons—that is, the owners and occupiers of the land. While I understand the Government’s need and desire to speed up the delivery of infrastructure, removing the duty to consult raises major concerns among the agricultural community. As we have established in previous debates on earlier groups, the consultation process is essential and can speed up the process. It is essential for both landowners and occupiers directly impacted by any project and for the developer. This process enables the developer to gain essential feedback from landowners and occupiers who will be directly impacted.
I am sure the Minister would agree that the earliest possible consultation and dialogue would allow a landowner or occupier to understand how they might be impacted by a project and to seek changes at the earliest opportunity to mitigate that impact, such as changing the location of a pylon. As my noble friend Lady Coffey stated, pylons and other major critical infrastructure impacted by this Bill will have a big impact on the farming community. Once you are at the stage of a statutory consultation, when the application for the scheme goes to PINS, it is too late to get any change to the scheme.
The Government have included an amendment, I understand, to replace pre-application consultation with guidance to developers around consultation, and the Minister referred to it in summing up the previous debate. Among others, the National Farmers’ Union is deeply concerned that if the guidance is not detailed and prescriptive enough, landowners and occupiers will not be provided with details about schemes and their intended location, and it will not, therefore, be possible to seek changes with the developer to reduce the impact of a scheme on a farm business. Pre-application consultation should be mandatory, not just guidance. As the noble Baroness, Lady Pinnock, remarked in the previous group, if you give a developer an inch, they will take more than a mile.
I understand that Clause 4 was added at a late stage in the proceedings in the other place by the Government in Committee. I am trying to understand why the Government and the department brought in these changes, particularly as farming organisations, such as the National Farmers’ Union, would have supported the original drafting of the Bill in respect of pre-application requirements. In their view, it would have struck a better balance between speeding up infrastructure and adequately consulting impacted parties.
Baroness Coffey (Con)
My Lords, I put my name to several of my noble friend’s amendments and I agree pretty much with every word she just said. I made my main points in the previous group.
Baroness Pinnock (LD)
My Lords, this is a further iteration of the debate we had on the previous group about pre-application consultation, but this time with the specific purpose of consultation with owners and occupiers of land. I still hope that we can get to the point where the Government have a rethink about reforming the pre-application process without removing it altogether.
We are in danger of throwing the baby out with the bathwater with Clause 4. I have listened carefully to the noble Baroness, Lady McIntosh, and, as with the previous group, there are important points to be made. Informing people about an application is important, along with the community on which it impacts, particularly with regard to information to owners and occupiers of land. It is just rude not to, quite apart from the legal responsibility. Even with an ordinary application, though not an infrastructure one, the requirement is to notify the owner of the land that something is being proposed—even if you do not own the land, as we heard earlier from the noble Baroness, Lady Coffey. I urge the Minister to think about reviewing and reforming pre-application rather than removing it.
Lord Jamieson (Con)
My Lords, the amendments in this group, tabled by my noble friend Lady McIntosh of Pickering and supported variously by my noble friend Lady Coffey, speak to the important principle of consulting those who will be affected by changes, who are often best placed to provide information about development ahead of time. I appreciated the Minister’s comments on consultation in the previous group. The Government themselves are going to a consultation on providing the optimum guidance for consultation in the future. That is a positive, despite the multiple consultations.
At this stage in our deliberations, it is important to consider what “consultation” means. We are not talking about wreckers or blockers. These Houses of Parliament—indeed, your Lordships’ House itself—are constitutionally tasked with consultation and review. That is what we are doing at this very moment: reviewing the Government’s proposal in detail and providing feedback with the intention of making a proposal better and more workable in practice.
As we have heard, category 1 and 2 persons are definitions that refer to persons with significant interests in affected land. They know, literally, the lay of the land, the conditions, the constraints and the opportunities that could be faced by any development in advance of a project being started. The benefit of the knowledge and experience that these parties have must not be understated. One obvious way to prevent bad development is to promote good consultation.
We are keen to see spades in the ground and development starting to get under way, but there is no point if we get bad developments in the wrong place and where they are not appropriate. We have a duty to deliver, but we also have a duty to deliver responsibly. Removing requirements to consult key parties means that the Government increasingly run the risk of championing bad development.
There is also the question of buy-in. The Government will find that the public do not appreciate being done to, rather than being done with. Does this not strike to the heart of what the Government are trying to do with the Bill? The Government will find that if they do not undertake this policy programme carefully, with close reference to the very people they are intending to exclude from the consultation stage—I note the Minister’s previous comments, which are much appreciated—they will not be thanked for it. Consultation with stakeholders is, as noble Lords who are business-minded will know, an important way to build support, gain approval and deliver projects that work.
Baroness Taylor of Stevenage (Lab)
My Lords, Amendments 26, 27, 32, 35, 39 and 42 were tabled by the noble Baroness, Lady McIntosh. I am grateful to her for her amendments, and I thank the noble Baronesses, Lady Coffey and Lady Pinnock, for their comments. The noble Baroness, Lady Pinnock, referred to throwing the baby out with the bathwater. I am afraid that, in this instance, the baby has become so fat that it cannot even get out of the bath, never mind be thrown out.
As I have outlined over the course of this debate, these amendments seek to undo a number of amendments tabled by the Government in the other place to remove the statutory requirement for applicants to consult in the preparation of an application. Given that this significant change was introduced during the Bill’s passage—a point I accept from all noble Lords who have mentioned it—I will outline again the Government’s motivations for making the change.
A particular aspect of concern has been the increasing length of time spent at the pre-application stage, resulting from the way that statutory requirements are being complied with. As outlined, consultation has become a tick-box exercise—the very one I was referring to earlier—that encourages risk aversion and gold-plating. We have therefore concluded that these requirements are now serving to slow schemes down rather than speed them up, and that the consultation taking place is not meaningful to the people involved. It just becomes that tick-box exercise.
In bringing in these changes, we want to speed up the typical period taken to submit applications and further save money in this Parliament’s pipeline of projects. We are committed to sustaining a planning system that encourages high-quality applications and delivers benefits to the nation and local communities. We all know that high-quality applications are those that have been developed through early and meaningful engagement with those impacted, including local authorities, statutory consultees, communities and landowners. Affected individuals will, of course, still be able to object to applications, provide evidence of impacts on them and participate in the process through which applications are examined.
As I have explained, in making this change the Government are clear that this signifies not that consultation and engagement are no longer important but just that the current system is not working well for either developers or communities. Guidance will be forthcoming on how engagement can be undertaken so that applicants can produce high-quality applications. We look forward to engagement on this matter. I take the point made by the noble Lord, Lord Jamieson, about consultation on consultation—he is right—but, in this case, it is necessary.
The Planning Inspectorate will continue to consider whether an application is suitable to proceed to examination and be examined under statutory timeframes. The guidance will outline best practice—to answer the point made by the noble Baroness, Lady McIntosh. I cannot give her any absolute detail yet because, as we said, we are consulting on it, but it will outline the best practice, which will involve pre-application engagement. The Planning Inspectorate, on behalf of the Secretary of State, will continue to issue advice to applicants under Section 51 of the Act and have regard to the extent to which applicants have had regard to the advice. These changes will provide flexibility so that applicants can undertake engagement in the way they consider best for their proposed development in accordance with that guidance. I therefore kindly ask the noble Baroness, Lady McIntosh, to withdraw her amendment.
Baroness McIntosh of Pickering (Con)
I am grateful to the Minister for her remarks, and to all who spoke. I meant to give a big shout-out to the clerks in the Public Bill Office. I know how hard our Front Bench and the Government Front Bench are working, but I understand that there are only four clerks in the Public Bill Office, who are assisting us with all our amendments, so I am deeply grateful to them for their assistance in this regard.
I am grateful to the noble Baroness, Lady Pinnock, and my noble friends Lady Coffey and Lord Jamieson for their support. The noble Baroness, Lady Pinnock, made a good point about reforming, not removing. Together with the loss of hope value and the new provisions on the compulsory purchase of land that we will come to later, I find it staggering how shabbily treated farmers and landowners are by this Government. I am sure there will be plenty more opportunities to elaborate on those arguments.
I understand that the Government are consulting on the guidance at the moment, but it is regrettable that we are not in possession of the guidance before we are asked to remove Clause 4, or at least to reintroduce the consultation at pre-application stage of category 1 and category 2 persons. It seems profoundly undemocratic—profoundly rude, in the words of the noble Baroness, Lady Pinnock—and I will consider whether or not to bring this back at a later stage. But, for the moment, I beg leave to withdraw the amendment.
Baroness Scott of Bybrook
“(7A) Where the Secretary of State decides not to accept an application under subsection (2) and (5), the Secretary of State must publish the reasons for the decision and identify the relevant statutory or regulatory basis.”Member’s explanatory statement
This amendment seeks to increase transparency and protect developers from arbitrary rejection.
Baroness Scott of Bybrook (Con)
My Lords, Amendment 45 seeks to enhance transparency in the development consent order—DCO—acceptance process. It would require the Secretary of State to publish the reasons whenever an application is not accepted under the relevant subsections of Clause 6, along with the precise statutory or regulatory basis for such a decision. This is a simple yet crucial step towards ensuring accountability and transparency in the decision-making process.
By explicitly identifying the legal grounds on which an application is rejected, the amendment would help to eliminate ambiguity and to reinforce the rule of law within the planning system. Currently, developers face significant uncertainty and frustration when their applications are rejected without clear explanations. This can hinder timely resubmission by leaving applicants unsure of what issues need to be addressed or whether the rejection was based on procedural, technical or substantive grounds. The resulting delay not only increases the costs and administrative burden for developers but can stall projects that may be vital to meeting national infrastructure and environmental goals.
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.
Baroness Taylor of Stevenage (Lab)
My Lords, we are all optimists.
Clause 6 amends the acceptance stage for applications for development consent. The noble Baroness, Lady Scott of Bybrook, has tabled an amendment to this clause, seeking to ensure that the Secretary of State publishes the reasons for the decision and identifies the relevant statutory or regulatory basis. At the acceptance stage, the Planning Inspectorate, on behalf of the Secretary of State, will consider whether an application for a nationally significant infrastructure project should proceed to examination. This test grants acceptance to applications for the country’s largest and most complex schemes on the basis of whether they can be examined within the strict statutory timeframes set out in the Planning Act 2008. Let us not forget that these statutory timeframes are what applicants admire most about the regime. They provide much needed certainty and clarity.
In our Planning Reform Working Paper: Streamlining Infrastructure Consenting published in January, we indicated that applicants often take a risk-averse approach to the acceptance test, as a refusal or a withdrawal can delay projects and harm investor confidence. Applicants will often gold-plate their application by undertaking additional consultation, delaying applications from coming forward. Accordingly, Clause 6 updates the acceptance test, not just to account for the removal of consultation at the pre-application stage but to increase the flexibility of the acceptance stage, so that applicants are more likely to come forward sooner. In doing so, Clause 6 amends the test to be applied from a “satisfactory” standard to “suitable to proceed to examination”. This wording brings the test closer to the objective of this part of the process.
The amendment proposed would require the Secretary of State to publish the reasons why an application has been rejected, explaining where it has not complied with new Section 55A (2) and (5). It is rightly intended to increase transparency and to protect developers from arbitrary rejection. The Government fully agree with the intention behind this amendment, which is to prevent arbitrary rejections for applicants. That is in part what has motivated the Government to introduce Section 55A. We want to allow for corrective actions, where needed, to enable acceptance rather than outright rejections or the withdrawal of applications. However, for the reasons I will outline shortly, we do not think this amendment is necessary, as the existing provisions in the Planning Act 2008 and new Section 55A provide sufficient transparency and protection for applicants.
The Government expect that this new provision will be used where an application does not strictly comply with requirements but where the application could quickly address any deficiencies or gaps. For example, regulations under the Planning Act require plans and drawings to be of a specified size and scale, and this includes specific requirements where multiple sheets are provided. Where applications need revision to comply with these or other such requirements, this process will allow for changes to be made easily where an application would previously have been rejected. Subsections (2) and (5) of the new section also require the Secretary of State to inform the applicant of what changes are needed and when these are needed by.
Moreover, the NSIP regime is built around strong principles of transparency and fairness. The Secretary of State will still be required to provide the applicant with the reasons why an application has not been accepted. The Planning Inspectorate routinely provides advice to potential applicants under Section 51 of the Planning Act 2008 before an application is submitted and is required to publish such advice on its website. Therefore, advice to the applicant at the pre-application stage, which can be used to highlight any more significant concerns, is already made publicly available. Given that the Planning Act 2008 and new Section 55A already require an explanation to be provided to applicants for why an application has been rejected, we do not believe that these amendments are required.
The Government have committed to consult on guidance to support consultation and engagement for nationally significant infrastructure projects this summer, as I have already outlined. As part of this consultation, we would very much welcome views on the acceptance of applications and the guidance needed to support the changes in the Bill. In particular, we recognise the importance of ensuring that requests made to applicants to provide additional information are proportionate, and we will ensure that guidance sitting alongside this change makes that clear. I hope the noble Baroness is reassured and, for all these reasons, I ask her to withdraw her amendment.
Baroness Scott of Bybrook (Con)
My Lords, I thank the Minister for her response, but I am not reassured. I am still not at all clear what the developers are being asked for, as we have heard from my noble friend Lord Banner, and we have heard from developers as well. There needs to be clarity not about what they should change but why they have been turned down. I hope the Minister and I can talk more about this, but I am considering bringing it back on Report if we do not get the reassurance that the clarity that developers need from the Secretary of State will be delivered by any changes that the Government are making. If not, we will press to make changes ourselves. At the moment, I beg leave to withdraw my amendment.
Lord Ravensdale
“Applications for development consent: low carbon energy infrastructureAfter section 35A in the Planning Act 2008 (timetable for deciding request for direction under section 35) insert—“35B Representations by relevant authorities, net zero and sustainable development(1) In relation to relevant nationally significant infrastructure projects, relevant authorities should have special regard to the matters in subsection (5) when carrying out the activities in subsection (6).(2) The relevant nationally significant infrastructure projects are —(a) the construction or extension of a generating station within the meaning of section 14(1)(a) for the purpose of low carbon electricity generation, or(b) the installation of an electric line above ground within the meaning of section 14(1)(b) for the conveyance of electricity generated by a station in subsection (a).(3) For the purposes of subsection (2)(b) it does not matter whether the electric line is also used or intended for use in connection with the conveyance of electricity generated from other sources.(4) The relevant authorities are—(a) the conservation bodies in section 32 of the Natural Environment and Rural Communities Act 2006 (UK conservation bodies),(b) the Environment Agency, and(c) such other bodies as may be prescribed in regulation by the Secretary of State.(5) The matters referred to in subsection (1) are the need to contribute towards—(a) achieving compliance by the Secretary of State with part 1 of the Climate Change Act 2008 (Carbon target and budgeting),(b) the achievement of biodiversity targets under sections 1 to 3 of the Environment Act 2021,(c) adapting to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008, and(d) achieving sustainable development.(6) The activities referred to in subsection (1) are any representations under Part 5 and Part 6. (7) In discharging their duty under subsection (1), the relevant authorities must have regard to any guidance given from time to time by Secretary of State.(8) In this section “low carbon electricity generation” has the meaning given in section 6(3) of the Energy Act 2013.””
Lord Ravensdale (CB)
My Lords, I remind noble Lords of my interests as a chief engineer working for AtkinsRéalis, director of Peers for the Planet, and co-chair of Legislators for Nuclear.
We have had a number of discussions already in earlier groups about the tensions that potentially exist between competing objectives, such as growth, nature and net zero, and the issues with the regulators and the precautionary principle when it comes to large infrastructure. This has resulted in a regulatory system that is stopping large energy infrastructure being built—solar farms, wind farms, nuclear power stations—and is therefore destructive to our environment, not to mention the growth agenda.
Some of the well-known examples, such as bat tunnels and acoustic fish deterrents, have already come up in previous groups, but a lesser-known example is a worm called Sabellaria that builds and lives in tubes on the seabed—I hope noble Lords will bear with me for a minute. This information is courtesy of Catherine Howard, partner at HSF Kramer. For offshore wind projects, the conservation body advised compensation for impact to Sabellaria when placing rock on the seabed, even in areas where Sabellaria is not present—I repeat, even in areas where it is not present. That resulted in a two-year delay to offshore wind farms, including the trio of Norfolk offshore wind projects: Norfolk Vanguard East, Norfolk Vanguard West and Norfolk Boreas. These projects, consented to in 2021-2022 by Vattenfall and since sold to RWE, have been delayed by approximately two years due to the inability to satisfy seabed compensation requirements. This is holding up infrastructure that is a top priority for net zero and energy security for the UK.
Examples such as this are commonplace across our infrastructure, adding billions in cost and years in delay. The noble Lord, Lord Hunt of Kings Heath, mentioned the 44,000 pages of the Sizewell C environmental assessment: a stack of paper 5 metres high—taller than a double-decker bus. The planning application for the Lower Thames Crossing was 359,000 pages—if all that was laid end to end it would total 61 miles, five times the length of the crossing itself.
Part of the solution here comes later in the Bill, in Part 3. A really important piece of the puzzle is the regulators themselves and how they are set up. My Amendment 46 in effect would put duties on the relevant regulators, with a scope limited to electricity generation projects, to take account of the benefits as well as the local environmental impacts of projects. By putting a net-zero duty on the Environment Agency and the statutory nature conservation bodies, the regulators would be directed to consider the broader benefits of electrical generation infrastructure and balance these with the local environmental impacts. It is really that macro versus micro view.
At the moment, the regulators are concerned purely with the local environmental impact of a particular piece of infrastructure, not with the potential macro benefits that the piece of infrastructure may bring. There could be a number of different duties to consider here—for example, energy security—but a net-zero duty is easiest to define for coherence with government targets.
Baroness Coffey (Con)
My Lords, I will speak particularly to my Amendment 46A, which is a good example of trying to knit the Bill together. We are trying to speed up aspects of planning decisions on infrastructure, yet also—I will not go heavily into Part 3—create environmental improvement.
This is quite a simple, straightforward amendment. I am very grateful for the counsel of Alexa Culver, with whom I have been engaging through LinkedIn. She is counsel at RSK and is doing a very good job of seeing how this is coming together. In essence, in the Bill as it stands, Natural England is tasked with creating this environmental delivery plan—I am concerned about certain aspects of Part 3—which will hopefully, to paraphrase, improve the environment. That document will be created and approved by the Secretary of State for Defra to make sure that we see improvements.
Therefore, for me it is exceptionally logical that whenever a Secretary of State in another department makes a decision on NSIPs and considers where the national policy statement has effect, they should also, in effect, consider the environmental delivery plan as it is. Under Section 104 of the Planning Act 2008, the Secretary of State already has to consider national policy statements, marine policy documents if relevant, other aspects regarding local impacts and
“any other matters which the Secretary of State thinks are … important”.
That is absolutely critical. In all the changes, particularly in Part 3, the Government are saying that they can have the best of both by doing this. My amendment would make certain that they have to consider it and that it will actually get delivered. That is why I have tabled it at this stage of the Bill.
Lord Hunt of Kings Heath (Lab)
My Lords, I support the noble Lord, Lord Ravensdale, on his Amendment 46. On Amendment 46A, I would be very surprised if the Secretary of State did not take account of EDPs. From the provision that the noble Baroness, Lady Coffey, read out, the Secretary of State clearly has the power to do so.
On Amendment 46, we partly return to the role of regulators. There is a perverse output of regulators making it difficult to achieve net-zero targets, which I find very difficult. Some regulators find it difficult to go wider than the very narrow remit that they seem to work under. One of the questions to the Government is: do they really think it will make a difference? It is easy to make fun of bats or acoustic fish deterrents, but it is fair to ask whether, as a result of this legislation, we will see an end to the ludicrous behaviour of regulators, which has cost so much money, delayed projects by so much time and, as we know, achieved absolutely zilch for conservation or nature preservation. Ultimately, that is the test.
It seems that the regulators do not come under enough challenge on their performance. Somehow, we need to put some mechanisms in the Bill to ensure that the regulators come under the microscope much more on how they behave and that they are held accountable. That is why the amendment is very well judged.
Baroness Bennett of Manor Castle (GP)
My Lords, I will chiefly offer support to Amendment 46A from the noble Baroness, Lady Coffey.
In response to the challenge from the noble Lord, Lord Hunt, who said that of course the Government would not do this, I am afraid that we hear that very often in your Lordships’ House. The noble Lord may be speaking for his own Government, but we are making law for potential future Governments, and we cannot know how they will behave. That is a reason to put Amendment 46A in the Bill.
I respond to the speeches of the noble Lords, Lord Ravensdale and Lord Hunt, with a little reminder that we are one of the most nature-depleted corners of this battered planet. If our regulators have not succeeded in doing the job they should have done in protecting nature, the answer is not to take away more power from the regulators. By all means, make them work better. As the noble Baroness, Lady Coffey, said, we will undoubtedly discuss this at great length in relation to Part 3, but the Bill currently takes away an enormous amount of protection for nature, which is a huge problem.
In talking about Amendments 46 and 46A, I will refer to Defra’s own words from a blog post in 2025 that, we can assume, represents the Government’s view. It starts with a statement with which I can only agree:
“Nature is the bedrock of our entire way of life”.
As I often put it, the economy is a complete subset of the environment; none of the economy exists without a healthy environment. That blog seeks to defend the nature restoration fund, the environment delivery plans and all the other steps that this Government are introducing. You might say that the blog post is a little too vehement for its own good and that its tone sounds extremely defensive. None the less, we can all think of examples of where the Government have, on the one hand, done something for nature, but, on the other, done enormous damage with other policies.
One of the obvious examples that comes to mind here is peat. Peatland is terribly important for nature and for climate. Large amounts of money are spent on restoring peatlands. We also have continued use of the land for driven grouse shooting and the burning of large amounts of peat causing great damage—and continual horticultural use of peat. So we have the Government trying to expensively restore something while continuing to allow the destruction of it. That is why this needs to be in the Bill. I could give many more examples, but given the hour I will not, of where the Government are, in essence, facing in two directions at once and nature is torn down the middle as a result.
Lord Berkeley (Lab)
My Lords, the amendment from the noble Lord, Lord Ravensdale, is a very good amendment, but it refers only to low-carbon energy infrastructure. Of course, he is an expert in that, and that is fine. The comments made by him, my noble friend Lord Hunt and the noble Baroness, Lady Bennett, referred to a much wider subject: are regulators a good thing or not and are we controlling them? To say that we want to make changes to the regulations on low-carbon energy infrastructure without looking at others means we are missing something. We have big problems with many regulators, but it should be a consistent policy. It needs to be done on a much more scientific and level playing field rather than it being just something which relates to whether we think what they are doing is a good thing or a bad thing. I do not think that is the right way to look forward. Maybe when the noble Lord comes to wind up, he can explain why the amendment refers just to low-carbon energy infrastructure.
Lord Ravensdale (CB)
Perhaps I may answer the noble Lord now. I thank him for his comments. He is absolutely right that there is a broader point here, but the amendment took into account the scope limitations of the Bill, which is why we raised it in that way. He is right that there is a broader point on regulators, but that would take it outside the scope of this legislation.
Baroness Pinnock (LD)
My Lords, these have been two very interesting amendments to think about. The noble Lord, Lord Ravensdale, quite rightly points to the fact that there are significant delays in wind farms in the North Sea because of demands by regulators in relation to Sabellaria. There is the tension that we started this Committee day with, which is if, as a country or as a world, we do not go down the net-zero route, there will not be nature to protect, because most of Norfolk and Suffolk will disappear under the waves of the North Sea. There has to be some balancing act between retention and restoration of nature, and not wilful destruction of it, but at the same time enabling the move towards net zero that we must do at speed. I am glad I am not in a ministerial position where I have got to do that balancing act, but that has to happen. We will not please everybody; that is also true.
The other issue that has come into this debate is, as the noble Lord, Lord Hunt, put it—I think I quote him correctly—“the egregious behaviour of regulators”. But it is this Parliament that provides the duties for regulators. A Parliament some time ago demanded that regulators look after the marine environment—or Natural England and all the rest of it.
It is about trying to pull all the moving parts together and understanding where we have to do the trade-offs. I have great sympathy with the amendment in the name of the noble Lord, Lord Ravensdale, but also with the emphasis on the importance of continuing to protect and preserve nature. That is what the Bill ought to be able to do, but I am not sure that it does—in fact, at the moment, I am convinced that it does not. I hope that by continual discussion we will find a route through if the Government are willing to listen.
Lord Jamieson (Con)
My Lords, I rise to speak to Amendment 46 in the names of the noble Lords, Lord Ravensdale and Lord Krebs. It is interesting, as mentioned by the noble Lord, Hunt of Kings Heath, and the noble Baronesses, Lady Bennett of Manor Castle and Lady Pinnock, that we keep coming back to this issue of prioritisation, hierarchy and the role of regulators. I particularly note the comments of the noble Baroness, Lady Pinnock, that we need to start resolving this issue. I am sure that on this side of the House we shall come back to it as we progress through the Bill, but I want to focus on this amendment.
There is no doubt that we have to address the issue of low-carbon energy and low-carbon infrastructure. It will be essential to hitting our zero-carbon targets and addressing the challenges of climate change. Although we support the efforts to advance clean energy, we must also guard against an unbalanced approach, particularly one that risks compromising the reliability and resilience of our energy systems. Low-carbon generation should not be considered in isolation, as I believe the noble Lord mentioned, or privileged above all other forms of infrastructure. The grid as we know it is undergoing rapid change; the Government’s ambition to rebuild it around renewable sources within just five years is rooted in ideology. Solar and wind are by nature intermittent. They cannot provide the stable backbone that the grid requires.
The stability of our electricity system depends on what is known as inertia, the capacity to resist sudden fluctuations in frequency. This essential property is delivered by turbines in energy-dense technologies such as nuclear, hydro and gas-fired power stations. It is not delivered by wind or solar farms. Without sufficient inertia, we run the risk of system destabilisation, leading to the worst case of failures and blackouts. We need a serious, detailed plan to safeguard the resilience and sovereignty of the UK’s energy supply. That means ensuring a mix of technologies, including those that deliver system stability and resilience, as well as decarbonisation.
On the amendment, we have a number of questions which we hope noble Lords can address. First, it refers to “sustainable development”, a term that invites interpretation. In planning, there is already a well understood definition of sustainable development in relation to planning applications for housing and commercial development, but I do not believe that that is intended here. What precisely is meant here and how is it to be applied in practice? How do we avoid confusion with the existing interpretation of sustainable development?
Secondly, on the list of regulators, why were these specific bodies selected and by what criteria? We welcome collaboration, but it must be clear and consistent.
Finally, there is the matter of the Secretary of State’s powers to prescribe other relevant bodies by regulation. That is a significant authority, and I would be grateful for clarity on how it would be exercised and scrutinised. Although we support the spirit of this amendment, we urge caution and a desire to have a balanced approach.
Briefly, on Amendment 46A tabled by my noble friend Lady Coffey, she raises an important point, so we will listen carefully to the Minister’s reply. Ensuring that planning consent has considered environmental protections is of course vital and must not be overlooked.
Baroness Taylor of Stevenage (Lab)
My Lords, Amendment 46, tabled by the noble Lords, Lords Ravensdale and Lord Krebs, seeks to ensure that in relation to nationally significant infrastructure projects for low-carbon energy, relevant authorities such as the Environment Agency should have special regard for the need to contribute to certain government environmental targets when making representations as interested parties under the Planning Act 2008.
The amendment refers specifically to compliance by the Secretary of State with carbon targets and budgeting; adapting to current or predicted climate change impacts under the Climate Change Act 2008; achievement of biodiversity targets under the Environment Act 2021; and achieving sustainable development. As we have heard throughout the debate today, and at earlier stages of the Bill, it is vital that we move forward and deliver the critical infrastructure that we need, not least to cut greenhouse gas emissions to net zero by 2050. As my colleagues in the other place noted, the Bill can deliver a win-win for growth and nature. Developments such as clean energy infrastructure are key to tackling the climate crisis and supporting nature recovery.
To pick up on the point raised by the noble Lord, Lord Ravensdale, regarding the Corry review, which was important, the review recommended that the Government publish a refreshed set of outcomes and strategic policy statements for regulators, with the aim of restating the Government’s priorities and mandating regulators to use constrained discretion to deliver them. This might answer some of the noble Lord’s questions about this. The Government have accepted this recommendation, one of the nine Corry recommendations being fast-tracked. We are moving quickly to publish the first set of strategic policy statements. I hope that this is helpful.
I thank the noble Lords for their constructive and helpful proposals in this amendment, which seeks to ensure that input from specific statutory consultees is given with the wider context of government targets in mind. The Government agree with the intention behind the amendment. I reassure noble Lords that the Government already have the tools they need to guide public bodies in their engagement with the development consent order process.
The national policy statements for energy infrastructure take full account of the Government’s wider objectives for energy infrastructure to contribute to the achievement of sustainable development and to ensure that the UK can meet its decarbonisation targets. In particular, these national policy statements grant critical national priority status to low-carbon projects. This means that the types of projects that the noble Lord is most concerned with have additional weight in the planning balance. Through the Bill, the Government are introducing a duty on public bodies to have regard to guidance published by the Secretary of State in making those representations which are referred to in the noble Lords’ amendment.
The Government will consult later this summer on what guidance about consultation and engagement on the NSIP process should contain, as I have already outlined. As we review and develop guidance on all aspects of the NSIP process, we will consider, alongside government policy in national policy statements, how we can support the intent of this amendment. I hope that the noble Lord, Lord Ravensdale, is reassured and will withdraw the amendment.
On the request from the noble Lord, Lord Jamieson, about the definition of sustainability, I will consult further and come back to him.
Lord Jamieson (Con)
I was repeating the request from the noble Lord, Lord Ravensdale.
Baroness Taylor of Stevenage (Lab)
I apologise. I took the liberty of popping out of the Chamber for five minutes. We will reply on that.
Amendment 46A, tabled by the noble Baroness, Lady Coffey, and supported by the noble Baroness, Lady Bennett, seeks to ensure that when determining whether planning consent should be granted for a nationally significant infrastructure project, the Secretary of State must take into account any environmental delivery plan applying to the land that will be developed. The Committee will be scrutinising Part 3 of the Bill in a later sitting. I look forward to that, but I am happy to speak to this amendment today.
The Planning and Infrastructure Bill creates a new type of plan: an environmental delivery plan—EDP. Within an area defined in an EDP, Natural England will identify the impact that relevant development is expected to have on a defined environmental feature or features. These can be features of protected sites or a protected species. Natural England will then set out a package of conservation measures that will outweigh the impacts of the development on the relevant environmental feature.
This process for developing EDPs and the wider set of safeguards across the NRF will be subject to further discussion under Part 3. However, in respect of this amendment, the crucial point is that once an EDP is approved by the Secretary of State that covers development of the type in question and in the location in question, developers will be able to make a payment through the nature restoration levy, which would discharge the relevant environmental obligation being addressed through the EDP. Where a developer chooses not to utilise an EDP, they will need to address these environmental obligations under the existing system. As a decision for the developer, it would not be necessary to require the Secretary of State, when considering a development consent order, to have regard to an EDP that the developer might choose not to use. In these circumstances, the decision would need to consider whether the application was in line with existing environmental obligations.
Further to this, mandating that the Secretary of State takes account of an EDP removes flexibility for the developer on how to discharge environmental obligations. This could impact on the viability of a scheme and would undermine the Government’s commitment to decide 150 infrastructure planning consents during this Parliament, as well as wider growth objectives. I appreciate that there are still some questions in there about how EDPs will work, but that is not the subject of today’s discussion—we will cover that under Part 3.
Furthermore, while the content of an EDP is not intended to be relevant to the planning merits of a determination, if the Secretary of State determines that an applicable EDP is material, they can have regard to it. That is already the case: under Section 104(2)(d) of the Planning Act 2008, the Secretary of State must have regard to any other matters which they think are both important and relevant to their decision. This could include any relevant EDP. I hope that that reassures the noble Baroness, Lady Coffey.
Lord Ravensdale (CB)
My Lords, I thank the Minister very much for that response. I will address some of the questions that noble Lords raised. I take the point made by the noble Lord, Lord Jameson, about sustainable development, but he mentioned the specific list of bodies. When we started out with this amendment, we had a long list of bodies and agencies that would be considered within the amendment, but we were informed by the Public Bill Office that that would present hybridity concerns, which is why we limited it to the subset that noble Lords can see in the amendment today. The reason we have gone with those is that most of the issues we have had with regulation of large infrastructure have been to do with the Environment Agency and the statutory nature of conservation bodies, but we have given that power for other bodies to be prescribed in regulations by the Secretary of State.
As I said, I thank the Minister. I am very encouraged by what she said. I note that she talked about the strategic priority statements in terms of duties on regulators, but I would note the strength of a statutory duty, which I think is quite important here in pinning down the objectives of regulators. There will be a lot of benefit in doing that within statutes. I look forward to seeing that in further detail, and I would welcome further engagement with the Minister on this point between now and Report. But, for now, I beg leave to withdraw my amendment.
Baroness Coffey
“(4A) In section 104(2)(b) of the Planning Act 2008 (decisions in cases where national policy statement has effect) at end insert—“(ba) any Environmental Delivery Plan made under the Planning and Infrastructure Act 2025 which has effect in relation to development of the description to which the application relates,””Member’s explanatory statement
This amendment seeks to ensure that when determining whether planning consent should be granted for a Nationally Significant Infrastructure Project, the Secretary of State must take into account any EDP applying to the land which will be developed.
Baroness Coffey (Con)
I am not moving Amendment 46A, although I would like to speak to the Minister about this, because I am not overly satisfied and may seek to bring the amendment back on Report.
Lord Hunt of Kings Heath
Member's explanatory statement
This amendment removes the requirement for all planning appeals to be considered at a hearing.
Lord Hunt of Kings Heath (Lab)
My Lords, we come to another interesting clause. In essence, I am trying to find ways to identify those infrastructure developments that are of critical national importance to see whether there is a way in which we can streamline the process of approvals that they have to go through. Also, in picking up the points from the noble Baronesses, Lady Coffey and Lady Pinnock, about the need for democratic legitimacy, I am seeing whether we can use parliamentary processes to help.
I am moving Amendment 47 and speaking to Amendments 48, 49, 52, 53 and 65. The two substantive amendments are Amendments 52 and 65. I have two on judicial review which, because of the mystique of groupings for the first day, should really be grouped with a number of other JR amendments that we will come to later, so I will be brief in speaking on those.
My Amendment 52, in essence, creates a short, abridged parliamentary process to confirm Ministers’ decisions to give development consent for infrastructure projects as a critical national priority. Apparently, until the late 1990s, we had a system of provisional order confirmation Bills, whereby Parliament could confirm orders made by UK Ministers for various proposals, including infrastructure projects. There are many of these on the statute book so it is, in fact, a tried and tested approach that we could use for some projects where we need to speed up delivery but we need to have parliamentary approval as well.
This kind of approach, using a development consent order confirmation Bill, could take only four to six months to go through Parliament, which is nothing like the complexity of the hybrid Bill. We have seen that with HS2, which ultimately failed to satisfy anybody and built in huge delays. We are where we are with HS2. Having said that, the station being built in Birmingham looks pretty good; we can only hope that, one day, a train is actually able to arrive there.
The point about this amendment is to give Parliament a vote. I have very much accepted this point about the need for Parliament to have a say in some of these matters. In a sense, this is another trade-off; I am saying that some projects need to be dealt with in a special way—nationally, by being taken by Ministers, by going through the necessary procedures to ensure that they are appropriate and in being given legitimacy by parliamentary vote. It would give businesses and developers much greater certainty about investment decisions and, as I have said, ensure that we have a proper democratic say in these very important decisions.
Amendment 53 is related to Amendment 52 and would repeal Section 150 of the Planning Act 2008. I well recall our debates on that regime, because I was a Minister involved in it. The NSIP regime was designed with the intention of being a one-stop shop for major infrastructure projects, in terms of the consents required. However, the effect of Section 150 of the 2008 Act has been to stop development consent orders from being as much of a one-stop shop as they could be, because certain regulators have a veto on whether a DCO can roll consents into it that would otherwise have to be obtained separately from regulators. We have already debated the problem of having multiple regulators involved; they do not seem to be able to work together and co-ordinate their response.
I know that there was a debate on a similarly worded amendment that was proposed in the other place. The Government had some concerns about it but promised guidance on how to wrap up other consents in a DCO. However, the problem with that is that the regulators’ veto remains, which is why I argue that it should be moved.
My Amendment 65 can be seen in parallel: I seek to enable the Secretary of State to designate certain classes of development as critical national developments; establish an expert critical national developments task force to advise on each application; and provide that planning permission and any other regulatory consent for such development is deemed to be granted six months after the application is made, unless the Secretary of State issues a written objection within that period or extends the period. Of course, here, I am anticipating the response of my noble friend, because I noted that she was not very keen on my earlier amendment on timelines because different infrastructure developments have different requirements and probably different timelines. This amendment allows the Government to be able to sort of flex the timeline according to circumstances.
I would argue that, at the moment, Ministers lack a coherent mechanism to prioritise and accelerate delivery of critical infrastructure projects. The DCO regime has not really, in the end, delivered what we hoped it would when we took it through Parliament. I hesitate again to mention Sizewell C, but eight years from application to consent is just hopeless, and I must say that on Heathrow too. I support the third runway at Heathrow, because I think that, as the Government have said, this will take place within carbon budgets, but it is just an example of how decisions here can be stuck for decades, and we really have to move on from that.
The amendment I am proposing here would centralise accountability with the Secretary of State. I would align it to my earlier amendment in relation to parliamentary consent. It would bring consents under a single process, introduce a statutory determination deadline and de-risk major investments.
There is international precedent for it. The Canadian Government have also faced great delays in major national infrastructure from fragmented approval systems, environmental litigation and federal/provincial conflicts. Recently, the Parliament of Canada has produced a law with very much the same principles as my amendment, which allows the Canadian Cabinet to designate nation-building projects, as they are called, via Orders in Council.
I refer to my other three amendments. Amendment 47 seeks to remove the requirement for any planning appeals to be considered at an actual hearing. That, in my view, is a streamlining process.
Amendments 48 and 49 are around judicial reviews. I really welcome Clause 12(1), which would restrict judicial review appeals to the Court of Appeal where the High Court decides the application for permission to apply for judicial review is totally without merit. Now, I have already paid tribute to the noble Lord, Lord Banner, for his review; this clause follows that review. We received a very helpful letter from my noble friend the Minister this morning, which gives details about how the Government are going to follow up; that is very welcome indeed, but I just want to probe whether we can go further.
Amendment 48 relates to the reviews of NPSs at least every five years, which I warmly welcome. I take my noble friend’s point about the issue with NPSs that have not been subject to a review and therefore could be considered to be out of date. I just want to make sure that judicial reviews are not used in a way which unreasonably might block progress, so my amendment would remove the possibility of JR in two circumstances: in between the five-yearly reviews, by repealing Section 13(2) of the Planning Act 2008, and in relation to any revisions to NPSs that are solely non-material or are reflective changes—in other words, reflective of published government policy change legislation or court judgments which the Bill is providing for.
I am a strong believer in the judicial review process. My background is mainly in the health service, and the fact is that NHS bodies are sometimes fast and loose with legislation and guidance, particularly when it comes to the outsourcing of services, changes of use, closures of hospitals and the like. There is no doubt that the judicial review process has been necessary to ensure proper transparency. My problem with judicial review is when it is used, essentially, to try to block progress—hence the amendment.
Amendment 49 would bring legal consistency to the Planning Act so that it is the High Court where applications for JR would be made. It is not a substantive change but it would make sure that, in any future event, civil procedure rules cannot be made to divert planning appeals to any court other than the High Court. There is already precedent in Section 63 of the listed buildings Act, which makes it clear that appeals are to be made to the High Court. I think that could flow across the Planning Act.
I hesitate to talk about judicial review when the noble Lord, Lord Banner, is present, but it would be good to have at least some debate as to whether, in the light of his review, we could go further. I beg to move.
Viscount Hanworth (Lab)
My Lords, Amendment 52 is of prime importance. Our planning system has become sclerotic. According to the Explanatory Notes that accompany the Bill, the time that it takes on average to secure a development consent order, or DCO, for major infrastructure projects has more than doubled in the last decade to more than four years. The development consent system is beset by objections and pleas and by judicial reviews, with several judicial reviews sometimes besetting the same project. The effects of the delay may be to cause an otherwise viable project to become uneconomic or unaffordable. Nowadays, such delays are often envisaged as a means of defeating a project. The conjunction of lawyers and protesters, which has given rise to a veritable industry, is a modern and unprecedented phenomenon.
Recently, I had good cause to consider such developments. I made a trip by car from London to Ilfracombe in Devon. I had intended to travel on the M4 motorway, which is a major arterial route. However, in consequence of its blockage, I was diverted, on the advice of the Google satnav system, on to the A303. In doing so, I remembered that 303 is the calibre of a rifle bullet. I had hoped to travel at the maximum legal speed, if not at the speed of a bullet. I was pleased to be able to do so until I was brought to a halt. I was then constrained to travel at a snail’s pace for a prolonged period, while passing an ancient stone monument on a single-lane road. I saw the ancient megaliths of Stonehenge on the brow of a hill, which were surrounded by a gathering of druids. I was reminded of their campaign, which has prevented the building of the Stonehenge bypass. They regret the presence of the road and resist the building of a bypass that would encroach upon Salisbury Plain. Some might regard their campaign as a worthy attempt to preserve the dignity of an ancient monument. However, there is another side to the story, which concerns the objections of residents in the neighbouring villages to the diversion of traffic on to their streets. They contend that their villages have an equal claim to preservation.
The legal wrangling has been interminable. The first grant of development consent for a bypass, in 2020, was quashed by the High Court in July 2021. It was then given the green light again, by the Department for Transport, which reissued a 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 those two defeats, the claimants asked the Supreme Court if they could appeal to it. On 29 January this year, the Supreme Court refused permission to appeal, on the grounds that the challenge did not raise an arguable point of law.
However, this decision was immaterial since, within weeks of taking office last July, the Labour Government had scrapped the plans for a two-mile tunnel that would bypass the monument on the grounds that the cost of the project had become unaffordable. The decision to cancel the project was taken some three and a half years after the development consent order had been issued and after a 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 case but by dint of endless legal chicanery and delay. However, the same recourse is available to many other parties who, for various reasons, wish to stand in the way of important development projects.
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.
Baroness Coffey (Con)
My Lords, I was astonished when I saw Amendment 52, but I will start briefly with Amendment 47. As my noble friend Lord Banner pointed out, this is just about being fair to people. As has been mentioned, effectively not allowing people to have hearings and an opportunity to speak when their livelihoods, homes or whatever it is are being ripped away is difficult.
Baroness Bennett of Manor Castle (GP)
My Lords, briefly, I feel that the discussion of this potentially extraordinarily far-reaching group of amendments has a different perspective from that of those I often work with—the environmental groups, human rights groups and groups representing disadvantaged communities that are bringing judicial reviews. The perspective I approach this from is how incredibly expensive and difficult judicial reviews are and how often they fail, even when, according to measures of common sense at least, they should have succeeded. That is very much where I come from.
The Committee does not just have to listen to me on this. We saw, particularly after the judicial review over the Prorogation of Parliament, a great deal of debate about judicial review. The noble and learned Lord, Lord Reed of Allermuir, the President of the Supreme Court, was quoted in the Law Society Gazette of March 2020:
“Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite”.
We have a system of judicial review that very often does not work to defend the powerless in our society, and that of course includes nature as well as people. Yet it is there as a final backstop, and sometimes it works—sometimes it does protect those people—and so it is crucial that we maintain it.
I commend the noble Lord, Lord Hunt, for his ingenuity. This single amendment has possibly the largest legal consequences I have ever seen, as I think the noble Lord, Lord Banner, set out for us very clearly and with vastly more expertise than I can offer.
I say to the noble Lord, Lord Banner, that if we are thinking about trying to speed up judicial review, which in principle is not something that I have any problem with, one thing that undoubtedly slows it down is inequality of arms. Small community groups and environmental groups face a massive inequality of arms; it is very hard for them to go fast, because they just do not have the resources. They have to wait until the crowdfunder has raised some more money before they can keep going. Perhaps dealing with that inequality of arms would be good for the efficiency of decision-making in our society.
None the less, it is fairly self-evident, but, for the avoidance of doubt, I will say that I am strongly opposed to the approach being taken in this group of amendments.
Baroness Pinnock (LD)
My Lords, the noble Lord, Lord Hunt, has brought before us his own Bill. It is worthy to stand alone and provoke a significant discussion about how different procedures could deal with large-scale infrastructure applications. I am not in a position to know whether it would work or not. It is an attempt to provide an alternative, and I am looking forward to the Minister, with all the civil servants behind her, being able to explain why it will or will not work.
I always start from a different starting point, which is that, first, we are a small island. Comparing us with Canada and its vast expanse, or even with France, which is significantly geographically larger than the United Kingdom with a similar population, makes for poor comparisons.
That is the first of the challenges anyone in this country has with large-scale infrastructure. The second is this. No case was made to people about the benefits to them from either of the large-scale infrastructure projects that have been mentioned, HS2 and the A303. HS2 was never about shaving 10 minutes off a journey between London and Birmingham or 20 minutes off a journey to Leeds—though it will never get there. It was never about that. It was about congestion on the railways, but that case was never made. So it is no surprise when the public do not respond to the project in that way. Why are we going through the destruction of our villages and favoured landscapes for the sake of 20 minutes? That was the argument. You have to make the case and the case is not being made. It was the same with the A303 and various other major projects. That seems to me to be a difficulty.
I take issue with the noble Lord, Lord Ravensdale, using the word “radical”. That word is always used by developers when they want something that the rest of us do not want. We might want its outcome, but we do not like what it is going to do to our environment. I think we have to try harder.
As for the noble Viscount, Lord Hanworth, calling planning “sclerotic”, this element of infrastructure planning is very difficult, but let us not label the whole of the planning process as sclerotic. Local planning authorities do not hold up development; the statistics demonstrate that. The issue is with infrastructure planning. That is why the noble Lord, Lord Hunt, has brought forward his alternative procedure for it. Whether or not that would work, I will leave to others with more detailed backing from the civil servants to decide.
The issue with planning applications, big or small, is always that if you do not involve the public and tell them what it is for, what it will do and what the downsides are, you set yourself up for a big fight, and that is what happens. As for the judicial review, what do I know about it except that it seems to go on for ever and achieve nothing—and costs a lot of money as well. If you resort to the legal process to resolve applications which should be decided between elected people and the community, you are never going to get an answer. I look forward to the reply and a judgment on this one.
Lord Jamieson (Con)
My Lords, I will speak briefly on this group of amendments, all tabled by the noble Lord, Lord Hunt of King’s Heath. The amendments in this group all relate to the role of appeals and the judicial processes involved in national policy statements. As many noble Lords have said, the current system for critical national infrastructure does not work. We need to get a move on, but we also need to protect the environment and nature. I quite liked the comments of the noble Viscount, Lord Hanworth. He alluded to the absurdity that Stone Age man could build Stonehenge quicker than 21st-century man can build a bypass round it. This just does not make sense.
It is no secret that the court system is facing a severe backlog. This is a point we have made from this Dispatch Box on numerous occasions during the passage of the Renters’ Rights Bill. As we argued then, there is simply not enough capacity for courts to hear endless challenges. Continual judicial reviews of decisions made by planning bodies clog up the courts, causing significant delays to the planning and building process. If we are to have an effective programme of infrastructure development and housebuilding that will boost economic growth, we must ensure not only that vexatious legal delays are kept to a minimum but that the threat of these—which, as we have heard, cause delays and lorry-loads of paperwork—is avoided.
Amendment 52 seems to present a paradox. On the one hand, the noble Lord, Lord Hunt, is understandably seeking to speed up the planning process through his Amendment 48, which is, we believe, a somewhat reasonable proposal, although we do have concerns regarding the risk of the Secretary of State having even greater Henry VIII powers.
Baroness Taylor of Stevenage (Lab)
My Lords, it has been a very interesting debate on a critical issue and aspect of the Bill. My noble friend Lord Hunt of Kings Heath deserves a lot of credit for some interesting thinking around how we might unblock some of the serious issues that have been holding up the planning system. I thank all noble Lords who have spoken in this section of the debate: the noble Viscount, Lord Hanworth, the noble Lords, Lord Berkeley, Lord Ravensdale, Lord Jamieson and Lord Banner, whom I also thank for his work in this area, and the noble Baronesses, Lady Bennett, Lady Coffey and Lady Pinnock.
The noble Viscount, Lord Hanworth, spoke about the sclerotic planning system. We all know it is sclerotic. The noble Baroness, Lady Pinnock, argued that that is not because of local government; I have a lot of sympathy with what she says, having spent a lot of time with local government. However, there is no doubt the system is blocked up. There are many reasons for that and I set out in one of my earlier speeches that that is why we require a whole package of measures to unblock the system. We require some new thinking as well, and that is why I am very grateful to my noble friend Lord Hunt.
These amendments seek to amend the various routes of appeal and rights to judicial review for both NSIPs and national policy statements, and a new designation of development called critical national infrastructure.
Amendment 47 seeks to remove the requirement for the determination of permission in judicial review cases concerning nationally significant infrastructure projects to be made at an oral hearing. At present, individuals and organisations seeking to challenge these projects have up to three attempts to gain permission from the court: a paper stage, an option to renew at an oral hearing, and, if unsuccessful, an appeal to the Court of Appeal. Each of these attempts can extend the duration of the claim by several weeks—which I think is the positive thing that the noble Baroness, Lady Pinnock, was talking about earlier—but in some cases, by several months. This is why we are making provision in Clause 12 to streamline this process.
As noted by the noble Lord, Lord Banner, and many stakeholders who responded to the call for evidence on this matter, the paper permission stage is not efficient with regard to challenges relating to nationally significant infrastructure projects. The majority of claims are refused permission at the paper stage; of these, most go on to renew their case at an oral hearing.
Removing the paper stage will allow any disputed question of permission to go straight to an oral hearing. This will help reduce the overall time it takes for a claim to reach a final decision, limiting the period of uncertainty for developers and local communities. This provision does not mean that all future applications will require a permission hearing as cases can still proceed directly to a substantive hearing if the question of granting permission is not disputed by the parties.
The other provision in Clause 12 will ensure that where a judge in an oral hearing at the High Court deems the case totally without merit—I presume that is a legal phrase because it has capital letters in my notes—it will not be possible to ask the Court of Appeal to reconsider. These changes are necessary to prevent meritless claims from holding up projects by exhausting the appeals process and will ensure that legitimate challenges are heard more quickly.
Amendment 48 seeks to amend the Planning Act 2008 to make certain decisions relating to national policy statements exempt from legal challenge. By seeking to remove the right to apply for a judicial review of the Secretary of State’s decision not to carry out a review of the relevant national policy statement, the first part of this amendment would undermine the requirement introduced in Clause 1.
Regarding the second part of this amendment, I recognise my noble friend’s intention to facilitate routine changes to national policy statements by making immaterial changes exempt from legal challenge. However, the public’s ability to challenge the lawfulness of government decisions is fundamental to the rule of law, and it is for the court to determine whether a decision has been taken lawfully.
It is for the court to decide whether a legal challenge ought to be considered, and there is already a mechanism for the court to deal with challenges concerning matters which are not likely to have a material impact. Section 31 of the Senior Courts Act 1981 requires the High Court to refuse permission for judicial review if it considers it
“highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”
Amendment 49 seeks to clarify that legal challenges relating to development consent orders made under Section 118 of the Planning Act 2008 must be brought to the High Court. Section 118 stipulates that proceedings must be brought by a claim of judicial review. Details of the judicial review process are set out in Part 54 of the Civil Procedure Rules and in the relevant practice directions. Further guidance can be found in the Administrative Court’s Judicial Review Guide. It is made clear in the relevant rules, practice directions and guidance documents that applications for judicial review are to be made to the High Court. I trust that this reassures my noble friend that there is sufficient clarity about the process and that legislative change is not required in this regard.
I thank my noble friend for his Amendments 52 and 65, which I will consider together. As he knows, I agree entirely with the intent behind them. As noble Lords will have heard throughout this debate, it is one of this Government’s central objectives to speed up the consenting process for all major infrastructure projects. The reforms we are making to the NSIP regime through the Bill will help us go further in speeding up the consenting process for all the infrastructure this country needs.
As we have already debated, the current pre-application process is producing counterproductive outcomes and extending pre-application timeframes. That is why we are removing the statutory pre-application consultation requirements. We will issue guidance through the Bill to assist applicants, setting out what the Secretary of State considers to be best practice in terms of the steps they might take in relation to a proposed application, in readiness for submitting an actual application.
Doing so will give applicants flexibility in how they consult and engage key bodies, local authorities and individuals about their proposed development, leading to more meaningful and effective pre-application engagement and shorter pre-application timeframes. Through the Bill, we will also enable the Secretary of State to direct certain development out of the NSIP regime, where such development could be considered by an alternative regime that may be more appropriate. This has the potential to expedite the consenting process and deliver infrastructure more quickly.
I appreciate that my noble friend is motivated by a desire to ensure that highly critical and urgent infrastructure projects can progress more quickly. We all want to deliver these schemes as quickly as possible, but we need to make sure we can do so without unnecessary disruption and with sufficient certainty for both applicants and decision-makers. We need to weigh up whether the radical overhaul he proposes is the best way forward, given the changes that we are already making.
As my noble friend knows, a critical national priority status can already be applied to projects and sectors delivering essential infrastructure. Projects with this status are given priority in the planning process, and the CNP policy affects how certain residual impacts are considered in the planning balance. We are starting to see the positive impacts of CNP status on recent NSIP projects; for example, through the energy national policy statements, CNP status is applied to renewable and low-carbon energy projects. With the mandating of regular NPS updates, it will be easier than ever before to consider whether more or different projects should benefit from this status.
My noble friend offers two ways in which a critical status could be applied to projects, and I will speak about both in turn. He suggests introducing a specialist task force to provide independent advice to the Secretary of State. This is, in essence, the role that the independent examining authority fulfils under the NSIP regime. Under the Planning Act 2008, a panel of experts is appointed to examine each NSIP application and make recommendations to the Secretary of State on whether a project should be given consent. As setting up a specialist task force would likely draw from the same pool of planning and infrastructure experts, such a proposal risks disruption to the NSIP regime and slowing down the consenting of infrastructure.
Also in this amendment, my noble friend suggests granting deemed consent for critical national development. This is an interesting proposal, but it faces a number of challenges. First, deemed consent cannot be used to consent development that is required to be assessed under the environmental impact assessment and habitats regulations regimes. Most major infrastructure projects are EIA developments and must undergo a full EIA process, including the submission of an environmental statement and an assessment by the relevant authorities. Secondly, further questions would arise around the Government’s compliance with international law, notably the Aarhus convention. This requires signatories to enable concerns about the impacts of a project to be incorporated into the decision-making process. This is what the Planning Act 2008 already enables, through the examination stage and consideration of relevant representations. Failure to account for this is likely to increase the risk of legal challenge and make planning decisions more vulnerable to being overturned by the courts.
I now turn to my noble friend’s amendment that would introduce a power for the Secretary of State to designate certain classes of development as a critical national priority. Once designated, these projects would follow the normal process for a DCO but then be subject to additional parliamentary approval. A public Bill would be introduced, which given that it affects private interest, would then engage the petitioning process. Once petitions are resolved, the Bill would be fast-tracked through both Houses to Royal Assent. The objective of this process would be to protect the DCO from judicial reviews.
This proposal is, without doubt, interesting and thought-provoking. As we have already debated today, the Government are using the Bill to tackle meritless legal challenges that delay projects and increase costs. We have also demonstrated that we are willing to go further, if necessary, to speed up the planning system and get Britain building.
The amendment touches on complex issues around the role of the courts versus Parliament—as the noble Lord, Lord Banner, indicated—in managing the conflicts that arise between private and public interests on large-scale infrastructure projects. It has enabled us to debate novel solutions to the challenges we face in building the infrastructure we need. The measures in the Bill already make targeted and impactful interventions to the consenting system to ensure greater certainty to investors and applicants, which will speed up the delivery of national infrastructure priorities, including those of critical urgency. For those reasons, and because of the discussions we have already had, I hope that my noble friend will not press his amendments.
On the amendment which seeks to repeal Section 150 of the Planning Act 2008, with the aim of reducing post-consent delays to construction, I thank my noble friend for raising this matter. It is indeed something the Government have been considering. When applicants submit their DCO for a nationally significant infrastructure project, Section 150 enables them to include other prescribed necessary secondary consents as well. The intent behind this section was to ensure that the NSIP process could be a one-stop shop, with applicants securing all the permissions they need to build via a single process. This could save them precious time and avoid them having to seek these consents separately after they have secured development consent.
However, Section 150 is drafted so that for certain prescribed consents this may be done only with the permission of the relevant regulatory body. Repealing Section 150 means that securing permission from the relevant consenting body, such as the Environment Agency, would no longer be necessary.
Lord Hunt of Kings Heath (Lab)
My Lords, I am sure that the whole Committee would wish to thank my noble friend the Minister for her very comprehensive response, which has been replicated throughout today’s proceedings. I am very grateful to her for the attention that she has paid.
I cannot say that this set of amendments has enjoyed uniform support among your Lordships, but I hope they have provoked a debate. I welcome the Bill. It is definitely going in the right direction, but there are still some concerns that I and a number of colleagues have about whether it is really going to cut the cake in the end, hence we are looking at the issues about judicial review. I am grateful to the noble Lord, Lord Banner, for his comments. I take his point about compulsory purchase and property rights in particular.
We need to come to an end. I will of course consider this very carefully. We still need to look at whether there are some supercharging approaches we can take to the really important infrastructure developments we need, with the benefit of parliamentary scrutiny and legitimacy. Having said that, I beg leave to withdraw my amendment.