Planning and Infrastructure Bill (Fourth sitting)

Debate between Paul Holmes and Matthew Pennycook

Committee stage
Tuesday 29th April 2025 Public Bill Committees

[Matthew Pennycook]

I thank the hon. Gentleman for his reasonable questions. If I have understood him, he makes a separate point about the statutory consultee system. As he will know—I refer him to my relevant written ministerial statement—we are seeking to reform that system in a number of ways.

On clause 8 specifically, the changes will not affect the ability to challenge the lawfulness of Government decisions in court. They are simply designed to reduce delays. We are not preventing anyone from challenging our planning decisions. Obviously, Government do not control how many of those challenges are made. We are tightening up the process so that if a challenge is judged to be meritless by the court—not by Government—it cannot be dragged on for years through numerous further appeals.

Only cases deemed totally without merit in the oral permission hearing in the High Court will be prevented from appealing to the Court of Appeal. Other cases will continue to be able to appeal the refusal of permission to the Court of Appeal. That will ensure that there is no possibility of meritless claims holding up nationally significant infrastructure projects, while maintaining access to justice in line with our domestic and international obligations.

I hope that the hon. Member is reassured that we are not removing wholesale the ability to mount judicial review challenges. Some have called for us to go further, but we think the proposals strike the right balance between addressing the removal of the paper permission stage and dealing with the issue of meritless claims. On that basis, I hope that he is reassured and may even feel inclined to support the measure.

[Paul Holmes (Hamble Valley) (Con)]

It is a pleasure to serve under your chairmanship, Mr Twigg. Notwith-standing the comments from my fellow shadow Minister, who made an excellent contribution, can I press the Minister on one question? My hon. Friend outlined the Opposition’s concern over removing wholesale—we are not saying that the Minister is doing this—the checks and balances relating to somebody being able to challenge a decision that they deem has not been taken in the right way.

However, it would be remiss of us as a party not to acknowledge that there are cases where JR is used vexatiously. To use an example from my constituency, I waited for 12 years to get a 300-foot extension to Southampton airport’s runway. It took three judicial reviews before we finally got that through. There was unmitigated support from the local authority and me as the Member of Parliament at the time, and it was taken to JR for what I would say were very dubious reasons, just to try to delay the project.

I understand why the Minister is bringing in the measures, notwithstanding some of the concerns that my hon. Friend mentioned about the balance. However, I am reassured by what the Minister said about not removing the ability to challenge and tightening the process around what can be accepted as being without merit.

I have one question for the Minister, which he may not be able to answer today—I would not necessarily expect him to—but perhaps he could write to me about it. Following Lord Banner’s work, which was a thoughtful examination of how legal challenges could be streamlined, has the Minister made any assessments, through officials or the Department, of how much time or cost on average the changes to clause 8 might mean for the system overall? I am not expecting him to get his abacus out and look at that now, but I wonder whether he could outline to the Committee, through an impact assessment, the effect of some of the changes.

We will not push this clause to a Division. We understand the principled reason why the Minister is bringing it forward, even if we have some concern about the detail of the measure.

Planning and Infrastructure Bill (Third sitting)

Debate between Paul Holmes and Matthew Pennycook

Committee stage
Tuesday 29th April 2025 Public Bill Committees

[The Minister for Housing and Planning (Matthew Pennycook)]

It is a pleasure to serve under your chairship, Mrs Hobhouse. Before I speak to clause 1 stand part and respond to the hon. Gentleman’s amendment, I put on the record my thanks to the large number of witnesses who gave up their time last week to give evidence to the Committee and inform our deliberations.

Sustained economic growth is the only route to delivering the improved prosperity that our country needs and the high living standards that working people deserve; that is why it is this Government’s No. 1 mission. The failure to build enough critical infrastructure, from electricity networks and clean energy sources to public transport links and water supplies, has constrained economic growth and undermined our energy security. That is why the Government’s plan for change commits us to fast-tracking 150 planning decisions on major infrastructure projects by the end of this Parliament.

While nationally significant infrastructure project applications are already being processed 50 days quicker on average than in the last Parliament, achieving that milestone will require the planning regime for NSIPs to fire on all cylinders—yet we know that the system as it stands is too slow and that its performance has deteriorated sharply in recent years. The Government are determined to improve it and to deliver a faster and more consenting process for critical infrastructure that will drive down costs for industry, bill payers and taxpayers.

Key to an effective NSIP regime is ensuring that national policy statements are fit for purpose. To be clear, those statements are the primary policy framework within which the examining authority makes its recommendations to Ministers on individual development consent order applications and against which the relevant Secretary of State is required to determine an application. However, as the hon. Member for Taunton and Wellington just noted, despite their importance many national policy statements are outdated, with some having not been refreshed for over a decade.

Clause 1 addresses that problem by establishing, on enactment, a new requirement for every national policy statement to be subjected to a full review and updated at least every five years. NPSs can be reviewed at any point within that five-year timeframe, at the discretion of the Secretary of State. Additionally, any statement that has currently not been updated for over five years must be brought up to date within two years of the clause’s enactment.

Having taken on board the views of consenting Departments, a wide range of industry stakeholders and the recommendations of the National Infrastructure Commission, we believe that a five-year timeframe strikes the right balance between ensuring that statements are kept up to date, while avoiding rapid change and the consequential uncertainty for the infrastructure sectors that would be caused by a more rapid review timeframe.

[Paul Holmes (Hamble Valley) (Con)]

The Minister may come to this later, but he will also be aware that clause 1 will make provisions for the Secretary of State to update an NPS later than required when there are exceptional circumstances, including laying a statement to Parliament. We will discuss in relation to later clauses our concern about transparency and engagement with the House. Will he outline how the Secretary of State will be able to consult the House, once she has laid that statement, to help to form her view and the Government’s view going forward?

[Matthew Pennycook]

I thank the shadow Minister for his question, and I look forward to what I know will be constructive debates over the days and weeks to come. He makes a fair point, which I am just coming to, in relation to the clause also providing for the ability to delay a mandatory update when there are exceptional circumstances that the relevant Secretary of State considers make the delay unavoidable.

I stress to the hon. Gentleman that those circumstances must be exceptional. We have in mind an extremely high bar: for example, if Parliament was suspended and could not sit. He will know that in instances where a national policy statement, for example, does not need to undergo a material change, a rapid update can take place on that basis. It does not have to go through consultation or the necessary parliamentary scrutiny requirements. The vision is that this particular part of the clause will be used with an exceptionally high bar, in very limited circumstances. If he wishes, I am happy to provide the Committee with further examples, but I think they will be extremely limited.

In such circumstances, as the shadow Minister said, the Secretary of State must, before the five-year deadline expires, lay a statement before Parliament explaining the reasons for the sought-after extension and when they expect to update the national policy statement, with the delay lasting only as long as the exceptional circumstances exist.

In summary, the changes give Ministers the power to ensure that national policy statements are kept up to date so that they can effectively support the delivery of the critical infrastructure that our country needs and the economic growth that its provision will deliver. I commend the clause to the Committee.

I turn to amendment 32, which, as the hon. Member for Taunton and Wellington set out, seeks to insert a requirement for the land use framework—on which the Government consulted between January and April this year—to be complied with whenever a national policy statement is reviewed. We believe that the amendment is unnecessary because the Secretary of State is already obliged to take into account all relevant material considerations when reviewing national policy statements as a matter of law, under sections 104 and 105 of the Planning Act 2008.

If a future Secretary of State considers the final land use framework to be relevant in the circumstances of the specific national policy statement being reviewed, it must therefore be taken into account. The Secretary of State will, in those circumstances, give the land use framework the weight that they consider appropriate in their planning judgment, but their assessment of relevance cannot and should not be prejudged by writing such a requirement on to the face of the Bill.

The majority of national policy statements are not site or project-specific. For national policy statements that do identify locations as suitable or potentially suitable for a particular development, those locations will already have been the subject of strategic level environmental assessments and appraisals for inclusion in the national policy statement.

When deciding whether to grant development consent for a nationally significant infrastructure project, sections 104 and 105 of the 2008 Act require the Secretary of State to have regard to any matter that they think “both important and relevant” to the decision of whether to grant consent. Once published, the land use framework could be given such weight as the Secretary of State considers appropriate, where they consider it “both important and relevant” to the particular consenting decision that is in front of them.

For those reasons, the Government cannot accept amendment 32, which seeks to introduce an unnecessary layer of regulatory complexity, undermining our ambitions to streamline the NSIP planning system.

--- Later in debate ---

[Paul Holmes]

I will adhere to your guidance and orders on this Committee, Mrs Hobhouse. I intend to speak to clause 2 first, and then I will address amendment 8, tabled by the hon. Member for Taunton and Wellington. We welcome the premise of parliamentary scrutiny of the national policy statements, but we understand that although the usual steps for publishing and consulting on material changes—21 days under the legislation—still apply, the Secretary of State is no longer required to respond to feedback from Parliament or its Committees during that process.

That is a step back on the democratic checks and balances that the House has under current legislation. We are concerned about whether the Secretary of State will have increased power to make decisions without that scrutiny. All Ministers, including the two sitting opposite me, try to make good decisions and do their best by the country, but it is unacceptable that the legislation includes a retrograde step whereby Parliament is unable to feed back on changes proposed by the Secretary of State. We see that as a retrograde step for scrutiny.

We have seen in legislation for other Departments a centralising move into the hands of officials and Ministers. What is the benefit of this provision in the Bill? What is the benefit of taking away a very simple and usual step of Parliament being able to give its views on the Secretary of State’s movements and proposals? It does not make a tangible difference to the process. It just seems to be a power grab—that may be unfair on the Minister—or at least a movement of power away from the ability of Parliament to have traditional checks and balances.

[Matthew Pennycook]

In the interest of focusing the debate on the actual changes that we are making in the clause, when a national policy statement has been reviewed and is to be updated, and involves material changes, all the assessments and consultation that need to take place, including laying the NPS before the House of Commons, will remain in place. We are talking about a specific set of categories of reflective, small changes that, as I will make clear in my remarks later, have already been debated by Parliament in their own terms.

[Paul Holmes]

I understand that, but the fact of the matter is that the Secretary of State will no longer be required, under the Bill, to respond to feedback from Parliament. That is what the hon. Member for Taunton and Wellington is trying to sort out with his amendment. We very much support that amendment, because it would require the Secretary of State to provide a response to the House on amendments to national policy statements.

I have no disagreement on the provision of NPSs and what we discussed in the debate on the last clause. What tangible difference does it make to the Bill if Parliament is taken note of by being able to respond, and the Secretary of State is required to respond to that feedback? The Select Committee has a right to issue its views. Why is the Secretary of State no longer required to respond to that feedback from Parliament? To us, it seems slightly undemocratic to remove transparency and the ability of elected Members of this House, of all parties, to be able to scrutinise the movements of the Secretary of State and Ministers in national policy statements. Perhaps the Minister can explain in his comments what tangible difference it makes to his life or that of his Department that the Secretary of State no longer has to respond to feedback from elected Members of this House.

As I said, we agree with the amendment tabled by the hon. Member for Taunton and Wellington. It would encourage greater accountability as part of the process outlined in the Bill and would enhance parliamentary scrutiny over crucial development policies that the Secretary of State has oversight of.

--- Later in debate ---

[Matthew Pennycook]

I say gently to the hon. Lady that she has ignored everything I have said. Every one of the changes that will be able to be made through this process will have already been subject to relevant consultation and parliamentary scrutiny. There is the example of changes to the national planning policy framework, which underwent a huge amount of parliamentary scrutiny through a Select Committee and a statement on the Floor of the House. It is not particularly problematic that we should be able to quickly, in a timely manner—with Select Committee input if it is able to respond in the necessary timeframe—make that change to a national policy statement to ensure that it is up to date and effective.

It is worth considering what the current arrangements require. Currently, the consultation, publicity and parliamentary scrutiny appeal that the Government must follow when updating an NPS, even for a minor change of the kind I have spoken about, is exactly the same as designating an entirely new NPS. There is no ability at the moment for timely and often minor reflective updates that will only reflect policy changes that have already been made subject to scrutiny, and court decisions that have been issued—there is not process for that. We think the system would work far better in most cases if there were.

Although it is a matter for the House, we would hope that in nearly every instance the relevant Select Committee would be able to respond in time, and that those views would be taken into account to help the NPS be updated in a more proportionate and effective manner.

[Paul Holmes]

I apologise for interrupting the Minister mid-flow, but if the utopian vision that he has outlined is the case—if a Select Committee comes to them within the right amount of time they will listen to its views, but the timescales are currently too long—and the Minister genuinely wanted to allow parliamentary scrutiny and responses to be taken into account by his Department, he would have come to the Committee today outlining a number of steps contained in the legislation setting standard response times for Select Committees and the processes of this House, as the hon. Member for North Herefordshire said.

The Minister could have clearly outlined in the legislation an aspiration for the amount of time that he would want the changes to be worked through with Parliament. I understand that there are Standing Orders of the House, but I remind the Minister that the Leader of the House is currently a Minister under his Government, and he could have got a workaround instead of taking out the scrutiny powers of the House of Commons.

--- Later in debate ---

[Matthew Pennycook]

I am struggling to follow what the hon. Gentleman’s specific concern is. He keeps throwing out the after-dinner speech example; that would not meet the threshold for a reflective amendment through this route. If the Government have made a policy change that has been subject to consultation and scrutiny in this House—

[Paul Holmes]

If it suits you.

[Matthew Pennycook]

Well, it would have to have been subject to consultation and scrutiny in this House in order to meet the criteria. We think that it is therefore reasonable to take it through in this manner. The hon. Member for Taunton and Wellington is suggesting that there will be a complete absence of parliamentary scrutiny, and in that way is misleading the Committee regarding the effect of the clause.

Planning and Infrastructure Bill (Second sitting)

Debate between Paul Holmes and Matthew Pennycook

Committee stage
Thursday 24th April 2025 Public Bill Committees

[Matthew Pennycook]

That is very useful. Thank you.

[Paul Holmes]

I will come back again, although I know you are under the cosh at the moment.

Rachel Hallos: It’s fine; that is why I am here.

--- Later in debate ---

[Paul Holmes]

Yes.

[Matthew Pennycook]

Nationally significant infrastructure projects, which I do not think you have chosen to talk about.

Councillor Hug: No—they are coming through very quickly. From a local authority perspective, I think the point is making sure that, if they are not formal consultees, there is some other mechanism for local authorities and others to feed into the process in a structured way to make sure that their voices are heard, even if formal statutory consultees are being reformed.

[Paul Holmes]

We are removing statutory consultees.

Councillor Hug: There is significant concern about that removal. That process is how you identify some of the specific issues on the ground that need significant further investigation. I do not think you will save any time by removing that, because the investigation will turn up at the planning stage. You will just delay planning, because these will be areas around statutory consultees. What it will do is give the public the impression that things are just being rubber stamped and railroaded through. That will be catastrophic. NSIPs are such contested spaces already. We have to give people the chance to raise concerns to identify issues on the ground at local level that need further work and further attention. If we do not do that, people will lose all faith in that process, and they are already sceptical enough.

Councillor Clewer: I have the same concerns. NSIPs are decided by the Secretary of State. I have five in my district at the moment, including battery farms, solar farms and a reservoir. It is not about objection—consultation can bring forth some really good ideas, some solutions and some changes. It is massively important. For instance, even if there will be an impact on your community, the community benefit could be discussed right at the start. All sorts of improvements could be put in place through consultation before it gets to the formal stage. It is also about the appearance of removing that consultation. At a time when LGR devolution is meant to be bringing decentralisation, to just say that this is all going to be decided centrally is not a good picture.

[Matthew Pennycook]

Q Could I ask you about the reforms in the Bill relating to planning decisions, and specifically our intention to take powers to introduce a national scheme of delegation? How do you think that could be best designed? What are the types of applications that you think should always be taken by planning committees, and which types of applications could be appropriately delegated to expert planning officers?

Councillor Wright: For a start, the vast majority of planning permissions or planning applications are already decided by officers anyway in many councils—something like 97% in my authority were decided—so what exactly do you think we are now going to pass when under more pressure?

--- Later in debate ---

[Paul Holmes]

Q Thank you, Catherine. The Minister and I have regularly been on Committees in the House where we—the Conservative party—agree with the Government’s proposals over planning fees. We have been on many Committees together where we have not contested those. Could you elaborate on how helpful you think the Government’s proposals on ring-fencing and planning fees are, how prescriptive you find them and whether they could be improved?

Could you also outline how you think the proposal could help the speediness of planning applications, but also have a greater impact on local government’s workforce challenges in recruiting and holding on to planning experts? Do you think the legislation will allow local authorities to have enough funding to keep town planners in local authority town halls and not going off to private companies?

Catherine Howard: The way the legislation is drafted, it looks to me like it is highly prescriptive and will be very effective at ringfencing. It talks about the need to secure that the income from the fees or charges is applied towards the carrying out of the functions that are listed. Those are functions such as dealing with planning applications, certificates of lawfulness, tree applications and listed buildings. There are things it does not deal with—that is presumably deliberate—such as general enforcement and plan making. It seems to me that, the way it is drafted, you could not use the money from all of those developer application fees and just apply it to plan making and those kind of functions. If that is the intention, that is what it appears to achieve.

Regarding recruitment, I know that fee recovery has been put into law in a number of different planning regimes. I am more of a specialist in the national infrastructure regime, where those provisions have been added quite liberally. It will be interesting to see how effective a pay-as-you-go system is. My concern still, in terms of how effective that will be at recruitment and retention, is that I do not know how much flexibility statutory authorities will have to set public pay scales. I would have thought—I am not an expert in this area—that if you want to attract and keep people who are otherwise tempted to go off to the private sector where pay seems to be higher, particularly with supply and demand the way that it is, you will need to make the applicable pay scales higher.

I am not sure that the fees that are attracted by a developer can just be used to give people bonuses or higher salaries within the private sector. That is my concern. If the fees can somehow be used to recruit and retain more people within planning authorities, that must be a good thing. It seems to me that there has been more of a drain of talent out of the local authorities and all of the public sector authorities and regulators post Covid in particular, now that people can work from home. Some of the benefits of working with slightly more flexibility, which the public sector was always better at than the private sector, have slightly gone. I imagine there is more of an inducement for people to move across if they are being offered more money, so I recognise the problem.

[Matthew Pennycook]

Q Thank you, Catherine, for giving up your time this afternoon. I have two questions on the NSIP regime and development consent orders, which is your specialism. First, you will have seen that the Government tabled a series of amendments yesterday to remove the statutory requirement to consult as part of the pre-application stage. Could you give us your sense of the impact you think that will have on the speed of the consenting process overall? What do you broadly expect applicants to do now that those requirements have been removed, but new statutory guidance will be introduced setting out what we expect? Is it a mature enough system now that we can expect most applicants to still consult and engage meaningfully, and what are the incentives at play there to ensure that they will?

Secondly, on the broad ambition to provide for a faster and more certain consenting NSIP process, do you think there is anything that we are missing here that we should still look at?

Catherine Howard: I hugely welcome the change that was made yesterday, in terms of speeding up and cutting out unnecessary bureaucracy that helped no one, except for helping professionals like me to spend more time and gain more fees out of our clients. There is, as we just talked about, a lack of enough professionals in the whole industry to staff the system. The Government’s ambition is to triple the rate of DCO consenting to get 150 DCOs through in this Parliament. We cannot magic up more comms consultants, lawyers, environmental impact assessment consultants and planning consultants in that period, so we desperately need a way to apply those professionals most efficiently in a really focused way across all the projects we need.

I have seen it in my career, having consented a number of projects since 2008, when the regime came in. Without the law changing at all, custom and practice has built up gold plating and precedent to slow the system down hugely. That is particularly true for the pre-app process, which I think the Government’s stats say has gone from an average of 14 months in 2008 to 27 months a few years ago—I suspect it is even longer now. I have seen more and more rounds of consultation on small changes. I have seen developers not putting through other changes that would be really beneficial and that communities or statutory consultees want, because they would have to have a three, four or six-month delay to do more consultation on the change.

I think the cart is before the horse. It has become a very clunky and bureaucratic legalistic process, rather than what planning should be and is in all other regimes—town and country planning, and even hybrid bills—where you have more latitude to change your mind, do some lighter-touch consultation if appropriate and do some focused consultation with the key statutory consultees on the key issues, rather than producing these huge preliminary environmental information reports, which are incredibly daunting and time-consuming for everyone to read. The public sector, local authorities, regulators and the public are feeling overwhelmed by the amount of information that is put out there, which is ultimately just a form of legal box-ticking without the laser focus that you really need on key issues, so I hugely welcome the change.

I was with an international investor yesterday who is interested in investing in a big portfolio of solar projects in the UK that have not yet been consented, and I was asked to explain the regime. The pre-app is always something I feel I have to apologise for and explain, and give the best story about how quick it might be, but it was great yesterday. They really welcome this change. I can see it being highly beneficial for investors who can shop around Europe and elsewhere, in terms of bringing development here.

--- Later in debate ---

[Paul Holmes]

Q Fine. One very quick question; I am afraid it is to you again, Mr Benwell. I apologise to the other witnesses; it is no reflection at all on your character or expertise. I hope you do not think I am being cheeky by asking this, but a lot of today’s questions from myself, my colleagues and Liberal Democrat colleagues on the Committee have been about the resourcing and the ability of Natural England to undertake the responsibilities that the Secretary of State is proposing.

Given your previous role within the Department, working with a Secretary of State, and given your expertise from your current role, do you think that in its current guise Natural England is capable of undertaking the responsibilities outlined in the legislation? Are you worried about the resourcing of that organisation going forward, considering that it will have quite new, detailed and complicated responsibilities?

Richard Benwell: There is no doubt that Natural England will need a significant uplift in resourcing to enable it to do this job properly. Natural England was subject to some pretty serious cuts over the last decade, and the last settlement was not very positive for Natural England either, with more job losses coming. When you look into the statistics of Natural England’s funding, some of the increases in recent years have been on capital fund rather than day-to-day spend on the kind of experts we need to do this work out on the ground. Part of the problem sometimes, with the risk aversion surrounding the current incarnation of the habitats regulations, is the lack of expertise from advisers, to give it the confidence to go out and suggest where strategic solutions can happen and to implement the law well.

Natural England will definitely need a boost. It is worth noting that it is not even able to fulfil all its current duties to the standard that we would expect. Only half of sites of special scientific interest have been visited in something like the last decade, and Natural England is already having to focus its work on statutory advice for planning applications. It will need more of that expertise, but we have confidence in the organisation and its leadership. We hope that the Government will properly resource Natural England and other agencies to help to make this work if it goes ahead, as amended.

[Matthew Pennycook]

Q Thank you all for coming to give evidence. This is a question for Richard, but I am sure the other two witnesses have views, assuming that you share some of the concerns that have just been outlined.

Richard, you will know that we do not accept that development has to come at the expense of nature. We are very much targeting a win-win solution when it comes to development and the environment. The Secretary of State for Environment, Food and Rural Affairs and I have had a huge amount of engagement with you and others in the sector to try to develop a solution that achieves that. I therefore want to drill into some of the concerns you have outlined, in two ways.

First, on the introduction, you welcomed the

“legal guarantee that the Nature Restoration Fund must not only compensate for damage but actually benefit protected wildlife.”

But the claim today is that the Bill leaves us open to regression. Could you elaborate on how those two square together?

Secondly, you have just said that you have confidence in Natural England and its leadership. Marian Spain, the chief executive officer, gave evidence earlier today. She said that the Bill effectively maintains the mitigation hierarchy, but you have just said that the Bill undermines the mitigation hierarchy. Can you clarify why you have a difference of opinion with Marian on that particular issue?

Richard Benwell: Of course. On the first question, we were grateful for engagement ahead of the Bill’s publication, and we were really pleased to hear your aspirations to achieve a win-win. The question is whether the overall improvement test in clause 55(4) does what it is meant to do.

The legal drafting suggests that a Secretary of State can agree an environmental delivery plan only if he is satisfied that the benefits for a protected feature “are likely” to outweigh the harm to that protected feature. That comes some way short of the high bar of legal certainty that is expected in the current habitats regulations.

If you dig further into the Bill, you find that once an environmental delivery plan is in place, if there is evidence that it is not meeting the standards expected, it is up to the Secretary of State whether to withdraw the EDP and then only to take measures that he considers appropriate to remediate for any shortfall in environmental benefits that are supposed to be derived from the measures in the Bill.

Both of those points leave far more leeway for a Secretary of State to undercut nature restoration compared with the current situation, especially when it can happen up to 10 years after the initial harm to nature. We have all heard of circumstances where promised offsets for supposed harm to nature never materialise or die a couple of years down the line.

We think this can be fixed. We think that if you were to strengthen that requirement so that it matches the kind of legal certainty that we see in the habitats regulations, you would be in a much better position. On the positive side of the scale, if that promise to outweigh harm were a more substantive requirement to go beyond just about offsetting into real nature restoration, you start to get to the territory where this really could be a win-win.

We know you will be advised by Government lawyers to minimise risk. That is what always happens, which is why Governments like to have these subjective tests. But as it stands, the level of certainty of environmental benefit that is required of an EDP up front, and that is then required of proof of delivery along the way, is less than under the current law.

Planning and Infrastructure Bill (First sitting)

Debate between Paul Holmes and Matthew Pennycook

Committee stage
Thursday 24th April 2025 Public Bill Committees

[Paul Holmes (Hamble Valley) (Con)]

Q Sir John and Mr Owen, thank you very much for coming this morning. As you know, this is a huge piece of legislation, and we want to scrutinise it to the best of our ability. Thank you for the work that you do in your occupations.

We remain consistent in our concern about democratic accountability and processes, and about the balance between speeding up planning delivery and retaining the power of local people to make differences and have their say on nationally important critical infrastructure. First, do you think that these proposals strike the right balance between speeding up the delivery of national infrastructure projects and public accountability? Do you think that democratic and public accountability will remain at the heart of the delivery of that national infrastructure under the Bill’s proposals?

Sir John Armitt: Yes. I think this is a reasonable attempt to address the fundamental question of getting the balance right between taking forward the critical national infrastructure that the country needs and local interest. Consultation has always been an essential part of that, and the ability of people to express their views is important. Having said that, it is and will continue to be a very complex area. People on the receiving end of new infrastructure will naturally seek every mechanism in their legal right to challenge where they feel that they will be adversely affected. The Bill seeks to set out a number of remedies for that, and I think one could reasonably expect to see some acceleration, but just how much acceleration there will be in the process only time will tell.

Robbie Owen: I broadly agree with that; I think the Bill largely strikes the right balance. Let us not forget that even in the light of the amendments tabled by the Minister yesterday in relation to consultation, there will still be an extensive amount of consultation required—justifiably so—in relation to these projects, involving, among others, the local community. The examination of applications for consent takes place over a maximum of six months, which is a very long time, within which the local community can express their views. The Government are retaining the ability for local impact reports to be produced, which I think is important. I have no fundamental concern that democratic and public accountability will be lost by these changes. I actually think they do not quite go far enough in some respects, but we may come on to that later.

[The Minister for Housing and Planning (Matthew Pennycook)]

Q Thank you both for your time this morning. I also wanted to ask you about the nationally significant infrastructure projects regime. As you know, the objective of the Bill in this area—chapter 1 of part 1—is to provide for a more certain regime, but also to speed up the process through which applications are taken, because we have seen, as you are both aware, a deterioration in the performance of the system over recent years. We have done a huge amount of consultation on this legislation—statutory consultations, working papers, calls for evidence—but we are still very much in listening mode on whether any further changes are required. I want to get your views, picking up on the comments that you just made. In terms of the critical barriers to bringing forward major economic infrastructure, where do you think the Bill gets things right, and where does it not go far enough?

Sir John Armitt: The Bill seeks, to a large extent, to provide a regime of compensation to offset where people are going to be affected. That, in a sense, is no different from what we have seen in the housing sector in section 106, for example, for a very long time. The real challenge here is the ability of the process to actually slow things down. We know that judicial review is one of the big difficulties in this area. You could argue that the recent recommendations made for judicial review do not go that far. The only way in which it can be held back is where the court decides that the issue being raised is, perhaps not frivolous, but immaterial. But I would imagine that the nature of the legal system is such that people will find ways around that.

Judicial review constantly acts as a brake, and influences those who are developing projects to try to cross that bridge before they get there: you put in more mitigation than ideally you would wish, which raises the cost, and you potentially finish up with a more expensive project than ideally you would have had. That is the nature of people trying to second-guess what is going to be raised and how the judicial review will be handled.

I am not sure that the recommendations will go far enough to have a serious impact on that aspect, which is one of the central aspects of what has been holding up these schemes quite significantly. Each year of judicial review is likely to potentially add a year to the process, and that is why it is difficult to see that these changes will benefit the overall process by more than six to 12 months, at the end of the day. Robbie and I were talking about this before we came in; he is more of an expert in it, so I will turn to him for any other observations.

Robbie Owen: Minister, I absolutely support what is already in the Bill. I think that every provision on national infrastructure planning is appropriate, including what I hope will be added to the Bill through the amendments that you tabled yesterday, in relation to pre-application consultation and some other measures. As you say, those are all good measures that have followed extensive consultation and engagement.

There are two areas where I believe the Bill needs to go further, be bolder and be strengthened. The first relates to the further streamlining of the development consent order process. That should focus on allowing the standard process to be varied, on a case-by-case basis, where there is justification for doing so. That was trailed in your planning working paper in January; I encourage you and your officials to have another look at that, because there is a justification for giving some degree of flexibility to reflect the nature and requirements of individual projects and how the standard process might need to be adapted to them.

Secondly, we need to look again at the ability of the DCO process to be a one-stop shop for all the consents you need for construction of these big projects—that was the original intention back in 2008. All the discussions around that have yet to fully come to a conclusion. I note the review by Dan Corry, published a couple of weeks ago, but I do not think that it provides a full answer to allowing development consent orders to do more than they have been doing in practice, in terms of all these subsidiary consents, which, beyond the development consent order itself, are quite important for some of these big projects.

The other area where the Bill should and could go further relates to the whole area of judicial review. The changes that were announced in January, following the call for evidence off the back of the Banner review, are not particularly significant. They are really quite modest, and relate largely to the permission stage of judicial review. Approximately 70% of judicial review applications get permission and go forward, therefore we need to focus beyond the permission stage.

There are two other areas where the Bill could make some worthwhile changes. The first relates to the interaction between judicial review and national policy statements. As you will know, national policy statements are approved by Parliament, and the Bill contains some proposals to change that process. It has always struck me as strange that national policy statements can nevertheless still be, and are, judicially reviewed.

The final point on judicial review is that Parliament should be able, if it wishes, to use a simple one-clause Bill to confirm decisions to give development consent for projects of a critical national priority. This used to be the case: we used to have lots of provisional order confirmation Bills. I think that is a very good way for Parliament, where it wishes, to express its support for a big, critical project. That could easily be done through some amendments to the Bill.

--- Later in debate ---

[Paul Holmes]

Q Preparatory work on EDPs. Where are you on that?

Marian Spain: Work is under way now. As I mentioned earlier, we are doing two main things. We are thinking about the first two environmental delivery plans. This is an opportunity to mention that they are almost certain to be improving the existing nutrient mitigation scheme and turning that into a full-blown EDP and NRF system, and also consolidating the district level licensing scheme—the scheme for great crested newts that we set up five or six years ago. Those can be relatively quick wins, done within this calendar year we believe.

We are then looking at what the next EDPs are likely to be. That conversation is live at the moment with our colleagues. We are looking at three issues. We are looking at where development will most need it. Where are the development pressures? That might be major infrastructure or the new towns. Where are the places that are going to most need it? Where is it going to be most feasible—where do we believe we have sufficient evidence to have robust plans that will work and where is the meeting of those two points? That thinking about the EDPs is under way.

We are also using this year’s Government investment to set up the systems and the digital systems we will need. The systems developers will need to test their impact and decide if they want to participate. That is the systems we will use to handle the money and to do the essential transparency reporting and monitoring. That will be in place this financial year.

[Matthew Pennycook]

Q Marian, thank you for giving your time today and for the work that you and the organisation are doing to ensure that the new system will be operational shortly after the Bill gets Royal Assent.

Can I get you on the record in terms of the objectives of part 3 of the Bill? Is Natural England confident that the nature restoration fund will deliver better outcomes for the environment than the status quo? Specifically on the powers that will be available to Natural England in bringing forth EDPs, do you think the Bill gives you enough flexibility to consider a wide enough range of conservation measures to deliver those plans?

Marian Spain: We are confident that this will be an improvement on the current system. We have already run versions of the nature recovery fund for recreational impact, for great crested newts and for nutrient mitigation, so we have seen enough that these schemes can work. We are confident that they will work.

We are also clear that it is an improvement because at the moment the current arrangements are sub-optimal for developers and for nature. We see that developers are investing disproportionate amounts of time on data gathering that could be better done once and centrally. We see that investment in mitigation and compensation in the sequential scheme slows things down and does not always create the biggest impact. We also see that there is less transparency than the public and indeed developers themselves sometimes want about how the money is being spent. We are confident this will be an improvement.

The other important point to note is that many of the pressures nature is facing now, particularly water quality, air quality and recreation, are diffuse. They are not specific. They are widespread. They are cumulative. It is impossible for an individual developer to adequately consider, mitigate and compensate. We need to do that at much more of a scale. We think the measures in the Bill and the associated measures of having more robust spatial development strategies that look at nature and development together, and of having the plan up front that tells us what the impact will be and how to mitigate it, and then the fund to allow that discharge, is a major step forward.

It is unknown—well, it is not unknown, forgive me. It is a risk, of course, and people will be concerned that it will not be regressive and that it will not be a step back, but we think there are enough measures in the Bill that are clear that this is about improvements to nature—maintaining the current protections, but also allowing development to make its adequate contribution to restoration of nature.

Oral Answers to Questions

Debate between Paul Holmes and Matthew Pennycook

Monday 7th April 2025 Commons Chamber

[Paul Holmes (Hamble Valley) (Con)]

The Government’s much-lauded policy of building 1.5 million new sustainable homes has been doomed from the start of this Parliament, and we now have that confirmed, with the Chancellor saying last week that only 1.3 million homes will be delivered by the end of this Parliament. But it is worse than that. Office for Budget Responsibility figures show that only 1.06 million homes will be built in England, which is 500,000 fewer than the Government’s target, and around 200,000 fewer than the last Conservative Government built in the past five years. Will the Minister confirm that the goalposts have moved, and that Labour will not meet its target for housing in this country?

[Matthew Pennycook]

I am very fond of the hon. Gentleman, but I am afraid that, characteristically, he has got this one completely wrong. The 1.3—[Interruption.] Will the hon. Member for Thirsk and Malton (Kevin Hollinrake) give me time to answer? The OBR estimated that our changes to the national planning policy framework alone will increase house building to 1.3 million. That does not take into account the Planning and Infrastructure Bill, and the other changes coming forward. The hon. Member for Hamble Valley (Paul Holmes) is simply wrong. We are on course for 1.5 million homes in this Parliament.