Planning and Infrastructure Bill

Baroness Coffey Excerpts

Committee stage
Tuesday 9th September 2025 Lords Chamber

[Viscount Hanworth (Lab)]

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

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

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

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

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

[Baroness Coffey (Con)]

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

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

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

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

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

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[Viscount Hanworth (Lab)]

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

[Baroness Coffey (Con)]

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

[Baroness Scott of Bybrook (Con)]

I thank the noble Lord, Lord Hunt of Kings Heath, and my noble friend Lord Banner for their careful thought and experience in tabling these amendments. On Amendment 135D, I recognise the concerns expressed by the noble Lord, Lord Hunt, in seeking to restrict appeals to the Court of Appeal where the High Court has deemed an application to be totally without merit. This is, of course, a delicate balance between ensuring access to justice and preventing the courts from being encumbered by hopeless claims. I am grateful to him for placing this important matter before your Lordships’ Committee.

Similarly, the noble Lord’s Amendments 357, 358 and 360 raise pertinent questions about the commencement provisions of various clauses, particularly in relation to the new measures on planning and legal challenges. It is often the case that commencement by regulation can leave uncertainty. The proposal to provide for an automatic commencement two months after Royal Assent is, at the very least, a reminder of the need for clarity and timeliness in the law. These points merit careful reflection, and I look forward to the Minister’s response.

I now turn to Amendment 168, tabled by my noble friend Lord Banner. This amendment addresses a very practical difficulty—namely, the risk that development consents are lost due to time running out during the course of judicial or statutory reviews. By stopping the clock, the amendment would ensure that the permission does not simply expire while litigation is pending. This is important not only for developers and investors who require certainty but for local communities who deserve clarity about the projects affecting them. Without such a measure, there is a danger that meritless legal challenges might be deployed as a tactic to run down the clock, thereby frustrating legitimate development. I believe my noble friend is right to highlight this problem, and I warmly welcome his amendment.

I conclude by once again thanking the noble Lord, Lord Hunt, and my noble friend Lord Banner for their thoughtful contributions. We on these Benches will listen very closely to the Minister’s response on these matters.

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Moved by

[Baroness Coffey]

135: After Clause 51, insert the following new Clause—
“Planning permission for self-build and custom housebuilding(1) The Secretary of State must amend the Self-build and Custom Housebuilding Regulations 2016 (2016/950) as follows.(2) After Regulation 3 (definition of a serviced plot of land), insert—3A. “(1) For the purposes of section 2A(2) and (5) of the Act (Duty to grant planning permission etc), only the following development permissions may be considered to meet the demand for the carrying out of self-build and custom housebuilding in the planning authority’s area arising in each base period—(a) planning permission (as defined by section 58(1)(b) (granting of planning permission: general) and section 70 (determination of applications: general considerations) of the Town and Country Planning Act 1990 (“the 1990 Act”)) which is—(i) subject to a planning conditions restricting either the whole of or a specified number of units within the proposed development to self-build and custom housebuilding;(ii) subject to an obligation under section 106 of the 1990 Act (planning obligations), restricting either the whole of or a specified number of units within the proposed development to self-build and custom housebuilding;(b) permission in principle (as defined by section 58A of 1990 Act (permission in principle: general), where the description of the proposed development is for self-build and custom housebuilding.(2) For the purposes of this Regulation, self-build and custom housebuilding has the same meaning as in section 1(A1) and (A2) of the Act (Registers of persons seeking to acquire land to build a home).”.”

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[Baroness Coffey (Con)]

My Lords, 10 groups done; 10 to go. I turn to Amendment 135. I am doing this in the name of a friend of mine, Richard Bacon, who used to be the Member of Parliament for South Norfolk. He retired at the last election and is watching proceedings now—I am delighted he is—and he has spent a lot of time on self-build, which is what this amendment is about.

To pay credit to my friend Richard, he had managed to get issues about self-build into primary legislation. It had been commenced, but there are still elements that seem to be holding back this potential of self-build. Recognising, as the Minister said earlier, the words of her latest Secretary of State, to “Build, baby, build”, we should unleash the self-builders, where it is appropriate, right across the country. As my friend has pointed out, this is tenure neutral. There are great examples. Anyone can read his report that was commissioned by the previous Administration. He has written extensively on this, so I do not need to repeat everything he has put in the public domain.

To give a sense, there are good examples of this in the Netherlands, where groups of people have come together. They have actually built high-density and multiple-storey by some housing being particularly desirable—the penthouse may have got more of a price. You see multi-generational homes being built. To some extent—recognising what has been already pointed out in several parts of the debate, not only today, but in earlier consideration of the Bill—self-build is certainly a sector which needs to have the opportunity to at least be given a go. I recognise what the noble Baroness, Lady Thornhill, has just said about permitted development rights, with her neighbour building something which sounds rather extraordinary. That said, as someone with a large garden, perhaps that persuaded them that this was a way to reduce the amount of gardening; but that is a different story.

The Bacon review recommended that a range of regulatory reforms be brought forward to support the scaling up of self-build and to help boost much-needed housebuilding across England. I have already referred to the fact that the amendment to the 2015 Act through LURA, which came into force last year, made it clear that only planning permissions that are specifically for self-build can count towards meeting an authority’s statutory duty.

Despite that amendment, there remains considerable uncertainty over what types of permissions should be counted towards the duty imposed on local authorities to permit enough plots of land to meet the demand on their self-build registers. The LURA therefore provided for this new power to allow the Secretary of State to specify in regulations the types of development permissions that can be counted by a relevant authority to comply with its duty to meet demand as defined under Section 2A(2) of the 2015 Act. This has not been taken forward yet by the Government.

Amendment 135 proposes to insert a new provision into the Bill to require the Government to amend the Self-build and Custom Housebuilding Regulations 2016 to clarify the types of development permissions that must be counted towards the duty of local authorities to meet their local demand for service plots of land for people to build their own homes. The amendment would have the effect of implementing the provision in Section 123(1)(a) of the Levelling-up and Regeneration Act 2023 that enables the Government to specify regulations on the types of development permissions that can be counted by local authorities to comply with their duty to meet demand under Section 2A(2) of the Self-build and Custom Housebuilding Act 2015.

The Government’s plan for change set an ambitious target to build 1.5 million new homes over this Parliament. They say they are committed to reforming the planning system, that they are pro-growth and that they back SME builders to get Britain building. In May of this year, the former Deputy Prime Minister said that smaller housebuilders

“must be the bedrock of our Plan for Change”

and to get

“working people on the housing ladder”.

She also said that she was committed to making the planning system

“simpler, fairer and more cost effective, so smaller housebuilders can play a crucial role”

in building the homes we need, improving choice and boosting tenure mix on larger sites to improve buildout. To deliver against these objectives, the Government must surely look to operate all possible levers at their disposal, yet so far they have chosen not to bring forward much-needed further regulation to support more people to build their own homes.

The Competition and Markets Authority’s 2024 housebuilding market study report concluded that self-build and custom housebuilding is one of the main models in the UK housing market, with some 15,900 homes completed in 2021-22—admittedly, that was just as we were coming out of the variety of lockdowns. It concluded that, by enabling more alternative, private and non-speculative models, such as self-build and custom housebuilding development, dependence on the speculative housebuilding model can be reduced and market diversity improved, which in turn helps to speed up housing delivery. This could allow for more homes to be absorbed within local markets without housebuilders needing to reduce house prices, thereby speeding up housing delivery.

The Self-build and Custom Housebuilding Act 2015 places a statutory duty on local authorities in England to hold a register of people who want to acquire land to self or custom build in their area, and to grant planning permission for enough plots of land to satisfy that demand. The Self-build and Custom Housebuilding Regulations 2016 set out that authorities must meet this demand—that is, grant sufficient planning permission within three years. Despite these provisions, the Government’s own data shows that the gap between the supply of SBCH plots and consumer demand continues to fall.

Self-build and custom housebuilding data released by the Minister’s department in February showed that the number of individuals on local registers had risen by 4% to over 64,000 and that group registrations are near to 1,000. Despite this increase, planning permissions have continued to fall, reaching just over 5,000 a couple of years ago—the lowest level since legislation was first introduced in 2016.

A key cause of the decline in supply plots is that many local authorities—including, I am led to believe, Winchester, Uttlesford, Dacorum, Rutland and South Kesteven—refuse planning applications on grounds that they are meeting local demand. Yet, when they are tested, it is often clear that they are counting planning permissions towards their annual targets, when they are plainly not for self-build or custom housing, to avoid releasing more land to meet growing demand. Such practices are frustrating delivery and costing taxpayers and developers many thousands of pounds in fighting planning appeals to prove councils wrong. It is not unusual for planning barristers, consultants and local authority officers to debate at length at appeal whether a council has correctly counted the number of such permissions it has given to meet local demand and for inspectors then to have to interpret the evidence submitted and decide what weight they should give to the arguments.

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[Lord Lucas (Con)]

I am grateful to the Minister for her answer. I welcome her to 10 September.

[Baroness Coffey (Con)]

My Lords, I thank noble Lords who have spoken—my noble friends Lord Fuller and Lord Lansley, and also the noble Lord, Lord Best. In response to my noble friend Lord Lansley, I am very conscious that perhaps there is a proper definition that can deal with this, so I will reflect on that and see what I can work through. He is absolutely right in saying that national development management policies are the way forward.

I inferred from what the Minister said that it is early days, and we will see where it goes. There is a group of willing people who want to get on. This is designed to make it as straightforward as possible for people to have homes. I know she supports that outcome, and I hope I can potentially work a little more with her and the noble Lord, Lord Best, in order to make that a reality. On that, I beg leave to withdraw my amendment.

Amendment 135 withdrawn.

Moved by

[Baroness Coffey]

135A: After Clause 51, insert the following new Clause—
“Planning decisions: consideration of an EDPIn section 70(2)(aa) of the Town and Country Planning Act 1990 (determination of applications: general considerations) at end insert—“(ab) any Environmental Delivery Plan made under the Planning and Infrastructure Act 2025, so far as material to the application,””Member’s explanatory statement
This amendment seeks to ensure that when making a planning decision, the local planning authority must take into account any EDP applying to the land question.

[Baroness Coffey (Con)]

My Lords, Amendment 135A may perhaps look a little innocuous, but it is actually critical in considering how Part 3 of the Bill will work. By the way, I did not determine where this appeared in the Bill; that was done by the clerks.

It has arisen due to evidence given by the chief executive of Natural England, who was asked by the Environmental Audit Committee in the House of Commons to address Part 3 of the Bill. I appreciate this is before the Government backtracked and made a number of changes to try and address the significant number of concerns, which have not been fully alleviated, in regard to the potential for environmental damage.

I am very pleased to set out this suggested amendment to the planning Bill, which would, in effect, put into place what was said by the chief executive of Natural England—the body being allocated all this power not only to create but to deliver the increase in biodiversity in compensation for the development the Government want to see.

Marian Spain, when asked about these powers being given to Natural England—it will be tasked with writing, delivering, monitoring and reporting on EDPs—responded by saying that developers will be able to choose not to pay the levy if they do not have the confidence in the relevant EDP, and also that planning authorities can refuse to grant planning permission to developers if they are not convinced that the EDP would work. That is not what is in the Bill today, but the chief executive—the accounting officer—of Natural England has said to Parliament that this is what the Bill is doing. This amendment, in effect, puts that into place.

She specifically said that, in terms of not choosing to pay the levy, there is a risk that developers could not have confidence in the EDPs. This is worrying. It means that, if developers promote a new scheme through the planning system, they will not know whether or where an EDP will land or what environmental features it will cover. They do not actually know if levies will be mandatory or voluntary or how much the levies will be. They will not know whether the local authority considers an existing EDP to be ineffective. Developers would need to navigate the added very real risk that planning permission is refused because a planning authority does not trust that an EDP is being or will be delivered properly.

As a consequence of what the chief executive has said, it seems that the planning authority would need to police the progress and effectiveness of EDPs in their local authority areas. That was not in the Government’s impact assessment and may not be the intention of the Government at all. I say to the Minister that the very person who will deliver exactly what is left out in Part 3 of this Bill is saying that is the case. Frankly, if it is the case, and that is what the chief executive has told Parliament, then this will be exceptionally worse than the status quo for developers.

Developers can already access strategic solutions for nature that are competitively brought forward by a range of actors, including landowners, charities, Natural England itself and private companies. These alternative solutions will be crowded out by EDPs, and we will get to that more substantial debate next week in Part 3. At the same time, there is a risk that planning permissions will be held up because local authorities will not trust that an underfunded, unscientific, non-locally led EDP will actually be delivered.

I have greater concerns about the whole concept of Part 3. However, what I think is good is that, by my amendment, we can put back in exactly what the chief executive of Natural England says this legislation is supposed to do. That is why I am moving this amendment.

Speaking to my noble friend’s amendment on planning information, it is a very straightforward amendment, and I support my noble friend. It is basically saying, “We are looking at biodiversity, we need to know what it is, why don’t we get it all ready and we can share it with the developers, so we can know what the basic part is”. I am sure my noble friend will explain it far more eloquently than I have tried to do in those 15 seconds. With that, I beg to move.

[Lord Lucas (Con)]

My Lords, I have two amendments in this group. Amendment 135F is basically saying, “Look, we are generating a lot of quality biodiversity information within the planning system, but we are not capturing it”.

As a previous Government—this Government are too, I believe—we were committed to restoring biodiversity in this country from a very unfortunate, low level. To do that well, we need really good data. There are a number of potential sources of that data, but the great majority of the quality biodiversity data—that which can absolutely be believed because it has been collected by people who are qualified and has been properly checked and done carefully—is generated by the planning system.

But the majority of the data collected by the planning system never finds itself going anywhere else. We have a system in the country of local environment record centres, where this data should be deposited; it is not. This is what I want the Government to do. I know there are those within the Government who are working in this direction, but they are in Defra not in MHCLG, so what I would like MHCLG to do is to say, “Yes, it is important that we collect this data; we will mandate that”. When it is created as part of the planning system, it should find its way into the national data record. This is not something that would impose huge costs, because the data will almost always be in an easily accessible format. If you are applying for planning permission, and you have done a biological survey, you have to say where you found what. That is basically all that is needed for the environmental record centres. What we need to do, though, is get the data flowing.

The other side of this is—within the limitations of the Bill—my second Amendment 253A is saying that we ought to be using this data much better than we do. We create things and make decisions without accessing the best possible data that we already hold, and we ought not to do that. We ought to be making the best possible informed decisions when it comes to biodiversity; otherwise, we will do stupid things that damage the environment even further. The best possible data—the best possible decisions. That requires that, when we are taking a decision which affects the environment, we go and get the best available data. Again, the planning system is central to that. There ought not to be an application within the planning system which does not use the best data. My amendment asks that we put that right.

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[Lord Lucas (Con)]

My Lords, I am grateful for that answer by the noble Baroness, but she did not go as far as I hoped on my first amendment. I know that there is a lot of information being gathered as a result of the biodiversity net gain process. I am comforted that the noble Baroness appears to assume this will continue, because it has been a matter of doubt, given the recent consultation. But the problem is not that it is not generated; it is generated, but then nothing happens to it. It is locked up within that particular planning application; it never gets into the national records.

What I would really like to see coming through as planning policy is that where this information is generated, it must find its way into the national database because otherwise we lose it—it is inaccessible. We do not know what was found. We cannot draw on this information to take other decisions; we are depriving ourselves. Having generated this information and people having paid for this information, it then just disappears. That cannot be the right way of doing things. We must have a planning system which contributes to the national understanding of our biodiversity. The information that we gather as part of planning surely must become part of the national biodiversity database. That is something I would really like to pursue with the noble Baroness, if she will allow me to write to her further.

[Baroness Coffey (Con)]

My Lords, I thank the Minister for her reply and, indeed, all noble Lords for speaking. I do not want to get into the whole Part 3 debate; we will be debating that next week. I say to my noble friend Lord Fuller that this is based on evidence given to the Environmental Audit Committee on 30 June of this year by the chief executive, Marian Spain, rather than the chairman, Tony Juniper, over a year ago. I thank my noble friend Lord Lansley for giving me confidence—it was in the right place, after all—and for providing the clarity. The key point right now is that what the Minister has said tonight contradicts what the chief executive—the accounting officer—of Natural England told Members of Parliament about the effect of the Bill. I am going to read more carefully tomorrow what the Minister has said: I am not suggesting in any way that she is misleading the House either, but I think there is a problem. Putting this amendment in has got the outcome that I would like to see but perhaps not that of the Government. With that, I withdraw the amendment.

Amendment 135A withdrawn.