Planning and Infrastructure Bill

Lord Banner Excerpts

Committee stage
Tuesday 9th September 2025 Lords Chamber

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

[Lord Banner (Con)]

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

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

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

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

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

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

[Viscount Hanworth (Lab)]

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

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

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

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

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

--- Later in debate ---

[Lord Wilson of Sedgefield (Lab)]

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

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

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

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

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

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

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

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

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

[Lord Banner (Con)]

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

[Lord Wilson of Sedgefield (Lab)]

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

[Lord Banner (Con)]

Yes.

[Lord Wilson of Sedgefield (Lab)]

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