Planning and Infrastructure Bill

Viscount Hanworth Excerpts

Report stage
Monday 20th October 2025 Lords Chamber

Moved by

[Viscount Hanworth]

23: After Clause 12, insert the following new Clause—
“Decisions in cases of development consent orders for critical national priority projects(1) In the Planning Act 2008, after section 117 insert—“117A Orders granting development consent: critical national priority projects(1) Schedule 3A applies to an order granting development consent for a project that is a critical national priority if, at any time before the order was made, the applicant for the order had made a request in writing to the Secretary of State that Schedule 3A should apply to the order.(2) A project is a critical national priority if a national policy statement that has effect in relation to the application for development consent for the project specifically identifies the project as a critical national priority.”.(2) After Schedule 3 to the Planning Act 2008, insert—“Schedule 3AParliamentary confirmation of orders granting development consent for critical national priority projectsOrders granting development consent subject to this Schedule
1 (1) An order granting development consent to which this Schedule applies may only come into force if approved by an Act of Parliament passed in accordance with this Schedule.(2) Sections 130 to 132 (special parliamentary procedure in relation to National Trust land, commons, open spaces, etc) do not apply to an order granting development consent to which this Schedule applies.Introduction of order confirmation Bill
2 (1) As soon as practicable after making an order granting development consent to which this Schedule applies, the Secretary of State must introduce into Parliament a Bill for confirmation of the order, which is to be treated as a public Bill.(2) The Bill must include the order as a Schedule to the Bill and must be accompanied by an Environmental Report prepared by the Secretary of State.(3) The Environmental Report mentioned in sub-paragraph (2) must set out a summary of the likely significant effects on the environment of the project granted development consent by the order and the main measures proposed to be taken to avoid, reduce and, if possible, offset the major adverse effects of the project.Petitions against order confirmation Bill
3 (1) If, within the period of 21 days beginning with the day on which a Bill to which this Schedule applies is introduced into either House of Parliament, a petition is deposited against the Bill in that House, the petition stands referred to the Chairmen for examination in accordance with this paragraph and Standing Orders.(2) Within the period of seven days beginning with the day on which any such petition is deposited, the Secretary of State responsible for the Bill or the applicant for the order may deposit a memorial objecting to the petition, or any part of the petition, being certified as proper to be received, stating specifically the grounds of their objection.(3) As soon as practicable after the expiration of the period of seven days mentioned in sub-paragraph (2), the Chairmen must take into consideration all petitions referred to them under sub-paragraph (1) and any memorial deposited under sub-paragraph (2), and if the Chairmen are satisfied with respect to any such petition that the provisions of this paragraph and of Standing Orders have been complied with in respect of the petition, or part of the petition, they must certify that the petition or the specified part of it, is proper to be received.(4) The Chairmen must not certify that a petition, or any part of a petition, is proper to be received if the petition, or that part of the petition, relates to matters considered during the examination of the application for the order conducted under Chapter 4 of Part 6 of this Act and subsequently by the Secretary of State under Chapter 5 of that Part, other than—(a) matters relating to sections 130 to 132 (special parliamentary procedure in relation to National Trust land, commons, open spaces, etc), or(b) matters relating to the compulsory acquisition of any interest in or right over land provided for by the order.(5) In respect of every Bill to which this Schedule applies, the Chairmen must report whether any petitions have been presented against it and, if so, what petitions or parts of them, have been certified as proper to be received and whether any amendment to the Bill proposed by the petitions would, if made, alter the scope of the Bill or affect the interests of persons other than the petitioners; and subject to Standing Orders, every such report must be laid before both Houses of Parliament.Proceedings following petitioning period
4 (1) Where a petition or part of a petition has been certified by the Chairmen under paragraph 3 as proper to be received, the Bill—(a) after being read a second time in the House in which it is presented, is to be referred to a joint committee of both Houses of Parliament for the purposes of the consideration of that petition or part of it, except where either House has resolved within the period of 21 days beginning with the date on which the report of the Chairmen referred to in paragraph 3 is laid before it, that the petition or part of the petition should not be so referred,(b) after it has been reported by the joint committee, is to be ordered to be considered in the House in which it was presented as if it had been reported by a committee of that House, and (c) when it has been read a third time and passed by that House, is to be treated as having passed through all its stages up to and including committee stage in the second House.(2) A joint committee shall consist of three members of the House of Commons and three members of the House of Lords, in each case to be nominated by the House’s Committee of Selection within 10 sitting days of the Chairmen’s report having been laid before both Houses of Parliament under paragraph 3.(3) Where no such petition or part of any petition has been so certified by the Chairmen under paragraph 3 as proper to be received—(a) the Bill is, after its presentation, to be treated as having passed all its stages up to and including committee in the House in which it is presented,(b) the Bill is to be ordered to be considered in that House as if it had been reported from a committee of that House, and(c) when the Bill has been read a third time and passed in that House, the like proceedings on the Bill are to be deemed to have been taken, and to be taken, in the second House.Powers and proceedings of joint committee
5 (1) Where any petition or part of a petition against a Bill to which this Schedule applies is referred to a joint committee under paragraph 4, the Bill is to stand referred to that committee for the purpose of the consideration of the petition or part of the petition, and the committee must report the Bill either without amendment or with such amendments as they think expedient to give effect, either in whole or in part, to the petition or to the part of the petition, and with such consequential amendments, if any, as they think appropriate.(2) The joint committee must conduct its consideration of the Bill and of all petitions and counter-petitions in accordance with any instruction given by the House concerned after second reading of the Bill, and must report the Bill in accordance with any programme set out in the instruction.(3) Subject to Standing Orders, the report of the joint committee is to be laid before both Houses of Parliament.Costs
6 (1) A joint committee considering a Bill to which this Schedule applies has the same power to award costs as a select committee of either House in relation to a Provisional Order Bill under sections 9 to 12 of the Parliamentary Costs Act 2006 (as a result of section 15(4) and (5) of that Act); and sections 9 to 12 of that Act apply accordingly subject to any necessary modifications.(2) Sections 2 to 8, 13 and 14 of that Act apply with any necessary modifications to costs incurred in respect of a Bill to which this Schedule applies, as they apply to costs incurred in respect of a private Bill.Standing Orders
7 (1) Except as may be provided by Standing Orders made under sub-paragraph (2), the Private Business Standing Orders, and the custom and practice of Parliament relating to private business, do not apply to a Bill to which this Schedule applies.(2) Standing Orders may be made by the House of Commons and the House of Lords for any purpose relating to the provisions of this Schedule, to the extent they are compatible with this Schedule, and in particular— (a) for regulating the manner in which petitions against a Bill to which this Schedule applies must be framed and deposited,(b) for regulating the manner in which memorials relating to petitions against a Bill to which this Schedule applies must be framed and deposited,(c) for extending the periods prescribed by this Schedule in relation to the deposit of petitions and memorials in any case where either period expires on a day on which the House concerned is adjourned for more than four days,(d) for providing, in the case of any amendment to a Bill proposed by a petition, for a counter-petition to be deposited by any person or body whose interests would be adversely affected by the amendment; and for prescribing the cases in which a counter-petitioner has the right to be heard before the joint committee, and the cases in which the counter-petitioner may be allowed to be heard by the joint committee if the committee thinks fit,(e) for the withdrawal of petitions, memorials and counter-petitions,(f) for enabling the functions of the Chairmen under this Schedule to be performed by any deputy appointed in accordance with Standing Orders,(g) for regulating the proceedings of the Chairmen in connection with the examination of petitions and memorials under this Schedule,(h) for prescribing the cases in which a petitioner whose petition, or any part of the petition, has been certified as proper to be received, has the right to be heard before the joint committee, and the cases in which the petitioner may be allowed to be heard before the joint committee, and for enabling the Chairmen to determine in the case of any particular petition whether the petitioner has such a right to be heard or may be allowed to be heard by the Chairmen,(i) for prescribing the quorum of any joint committee, and(j) for regulating the proceedings of any joint committee.Effect of order confirmation Act
8 (1) Any Act of Parliament made with reference to this Schedule is a public Act of Parliament that may not to be questioned in any court or tribunal.(2) In the case of any order granting development consent confirmed by an Act of Parliament made with reference to this Schedule, any reference in this Act to the date when an order granting development consent has been made, published or comes into force, and any reference in the order to when it was made, published or came into force, is instead to be taken as being the date on which the Bill for the Act receives Royal Assent.(3) Section 134 of this Act applies to any order granting development consent confirmed by an Act of Parliament made with reference to this Schedule with the following further modifications—(a) in section 134(7) after “A compulsory acquisition notice is a notice” omit “in the prescribed form”, and(b) omit section 134(7)(d).(4) In all other respects any order granting development consent that is confirmed by an Act of Parliament made with reference to this Schedule is to be treated as an order granting development consent.(5) In particular, an order granting development consent confirmed by an Act of Parliament made with reference to this Schedule may be— (a) corrected through the exercise of the power contained in section 119, and(b) changed or revoked in accordance with section 153 and Schedule 6.Non-justiciability of proceedings in Parliament
9 A court or tribunal may not question any Bill or proceedings in Parliament that purport to be conducted in accordance with this Schedule.Interpretation
10 In this Schedule—“the Chairmen” means the Chairman of Ways and Means and the Chairman of Committees,“the Chairman of Committees” means the Chairman of Committees of the House of Lords, and includes any deputy acting on their behalf in accordance with Standing Orders,“the Chairman of Ways and Means” means the Chairman of Ways and Means in the House of Commons, and includes any deputy acting on their behalf in accordance with Standing Orders,“joint committee” means the joint committee to whom a Bill is referred under paragraph 4,“the order” means the order granting development consent proposed to be confirmed by the Bill mentioned in paragraph 2,“the Private Business Standing Orders” means the Standing Orders of the House of Commons relating to Private Business 2019 ordered to be printed on 19 December 2019, and the Standing Orders of the House of Lords relating to Private Business 2018 ordered to be printed on 18 December 2017, and“Standing Orders” means standing orders of the House of Lords and of the House of Commons made under paragraph 7(2).”.(3) After section 118(1) of the Planning Act 2008 (legal challenges relating to applications for orders granting development consent), insert—“(1A) Subsection (1) does not apply to an order granting development consent for a project that is a critical national priority for the purposes of section 117A and to which the provisions of Schedule 3A apply, and accordingly such an order is not to be questioned in any court.”.”Member’s explanatory statement
This clause would provide for a development consent order relating to a critical national priority project to be confirmed by an Act of Parliament after the order had been made by the Secretary of State, if the applicant for the development consent order had requested that before the order was made. In the normal way the resulting Act of Parliament would not be subject to legal challenge in the courts. Once confirmed by such an Act, subject to some necessary modifications, the development consent order concerned would be treated like any other development consent order and could be changed or revoked through the existing procedures contained in the Planning Act 2008.

[Viscount Hanworth (Lab)]

My Lords, I am pleased to move Amendment 23 in my name; I believe it to be of fundamental importance. A similar amendment, Amendment 52, was moved on day one in Committee on 17 July by the noble Lord, Lord Hunt of Kings Heath, and I spoke in support of it. The amendment was not supported universally in the House, and it has since been modified to take account of the advice of officials from the Ministry of Housing, Communities and Local Government, and indeed of the noble Lord, Lord Banner. The noble Lord, Lord Banner, was concerned that it should be made clear that the provisions of the amendment should apply only to infrastructure projects of significant national importance.

In July, I observed that our planning system has become sclerotic. The time that it takes, on average, to secure planning permission, known as development consent, for major infrastructure projects has more than doubled in the last decade to more than four years. The development consent system is nowadays beset by objections and judicial reviews, with several judicial reviews sometimes affecting the same project. The effect of the delay may be to cause an otherwise viable project to become uneconomic and unaffordable.

I gave the example of the Stonehenge tunnel, which was delayed by over four years by two sets of judicial reviews relating to two separate development consent orders—DCOs. A similar delay was caused to Manston Airport, which has reopened recently. There were two sets of judicial reviews necessitating two development consent orders, and there was a delay of almost four years.

In 2020, a judicial review affecting the airports national policy statement took over two and a half years before the principle of a third runway at Heathrow was endorsed. The Government’s current judicial review reforms contained in the Bill are very modest. They will make little difference, because they relate only to the prior permission stage for judicial reviews. Approximately 75% of judicial reviews are given permission by the court to be brought forth when they proceed to a substantive hearing, which, in turn, can take a considerable length of time.

The Bill does not address this problem of judicial reviews and the consequent costs and delays. There is little indication that the necessary reforms to address the problem are under consideration. Meanwhile, judicial reviews continue to arrive. Last week, 10 grants for an intended judicial review of a recent decision to give development consent for Gatwick Airport’s second runway were announced, and one expects that the judicial review will be initiated soon. The present amendment provides an acceptable alternative to judicial reviews of nationally important infrastructure projects, and it has constitutional precedents.

The amendment would allow for approved development consent orders for nationally significant infrastructure projects to be confirmed by a one-clause Act of Parliament. It would reactivate the system which prevailed when provisional order confirmation Bills were commonplace. After due consideration by Parliament, including a Joint Committee, the resulting Act incorporating the approved development consent order would essentially be incontestable after it had been ratified.

The amendment is accompanied by an extensive schedule, Schedule 3A, which declares how this system of parliamentary confirmation of these nationally important DCOs would operate in practice. The schedule provides for a process of petitioning against the Bill, largely in relation to matters not already considered by the examination process for the DCO and subsequently by the Secretary of State. This would preserve the rights of the affected parties.

However, once this process has been undergone and the DCO has been confirmed by an Act of Parliament, the possibility of wilful obstruction to the delivery of the project concerned would be minimised. Neither the Act nor the DCO could be questioned in any court or tribunal.

However, if circumstances do change, such as to require a later modification of the DCO—for example, because of project design changes—the amendment allows for the DCO to be changed in accordance with the procedures set out in Schedule 6 to the Planning Act 2008, as proposed to be amended by Clause 11 of the Bill.

The revised amendment carefully reflects the points that were made in Committee. The noble Lord, Lord Banner, was concerned that this procedure should not be applied to the commonality of development consent orders, but only to those relating to projects of critical national importance. At the start of the amendment, there is now an explicit link to the relevant national policy statement. The parliamentary procedure would be open only to those projects set out in the national policy statement as being of critical national priority. The revised amendment accepts that the parliamentary procedure should be resorted to only if the applicant for the DCO had asked for it to apply. There is no need for a separate Secretary of State determination of critical national priority status.

The noble Lord, Lord Banner, was also concerned that the objections of those facing compulsory acquisition through the development consent order should have an explicit right to be heard by the parliamentary Joint Committee, and such a right is now accorded in the revised wording of Schedule 3A.

--- Later in debate ---

[Lord Wilson of Sedgefield (Lab)]

I thank the noble Viscount for Amendment 23, which builds on a previous amendment tabled in Committee. It proposes a process for projects designated by the Secretary of State as “critical national priority”, where development consent orders would come into force only once approved through an Act of Parliament. This amendment seeks to bypass judicial review and insulate these projects from challenge and thereby speed up the building of infrastructure.

Although the provision does not directly alter the judicial review process itself, it uses parliamentary process to significantly reduce the public’s ability to challenge government decisions on these types of critical projects. This amendment proposes a mechanism for the Secretary of State to designate certain classes of development as “critical national priority”, based on identification in a relevant national policy statement.

It is important to remind the House that this status already exists and is actively applied—for example, to renewable and low-carbon energy projects through the energy NPS, to strengthen the need case for such infrastructure. However, this amendment seeks to go much further. I cannot support it for a number of key reasons. First, the proposed ouster in new Section 118(1A) would shield decisions from judicial review even where they were unlawful. For this reason, it is an approach which the courts have historically resisted. Given that this would be applied to some of the biggest and most controversial schemes, it is likely that challenges would be lodged in respect of the confirmed DCO, thereby undermining the time savings sought in the first place.

Secondly, the amendment would result in a constitutional confrontation between Parliament and the courts. This may result in questioning of well understood constitutional conventions, inviting further legal uncertainty.

Finally, there are serious practical impediments to the amendment. It would introduce a new, truncated parliamentary procedure for applicants to undertake after having completed the DCO process. It risks creating confusion and slowing the delivery of our most important projects by layering parliamentary procedures on top of an already rigorous regime. That adds more work and uncertainty for applicants—particularly detrimental for our largest projects—at a time when clarity and efficiency are essential. We recognise that the amendment is driven by valid concerns that lengthy legal challenges delay projects and add costs. However, the right approach to tackling this problem is by still enabling legal challenges but supporting the courts to handle them efficiently.

Further to our commitment to implement the Banner review and limit the ability for meritless cases to return to the courts, the Government recently decided to go further. On 15 October, they announced their intention to work with the judiciary to implement further procedural changes to ensure that NSIP cases are dealt with more quickly and consistently. The changes include introducing clear target timescales for NSIP cases in the High Court, aiming for a substantive hearing within four months of the application. We are also making it clear that NSIP cases in the Court of Appeal should be handled by judges with appropriate planning experience.

Together with the recent reforms, these further procedural changes will help make the judicial review process for major projects quicker, clearer and more predictable. I am grateful to my noble friend for tabling this amendment and for the thoughtful debate that it has prompted.

[Viscount Hanworth (Lab)]

I am somewhat disappointed by that response, because we face a crisis. There is nothing in the Bill or forthcoming that will address the crisis adequately. However, I must defer to the Government. I beg leave to withdraw the amendment.

Amendment 23 withdrawn.