Amendment 258B

Part of Levelling-up and Regeneration Bill - Committee (10th Day) – in the House of Lords at 7:15 pm on 20 April 2023.

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Photo of Lord Lansley Lord Lansley Conservative 7:15, 20 April 2023

My Lords, I remind noble Lords of my registered interest as chair of the Cambridgeshire Development Forum. This group relates to planning permissions. There are a number of different amendments for different purposes and perhaps noble Lords will forgive me if I speak only to my Amendment 258B, which has a particular purpose. It seeks to provide a clear, statutory provision in relation to an area of planning law that has recently become uncertain and which if not clarified would create a number of costly and difficult consequences both for developers and planning authorities.

I will explain the background. The issue relates to large developments which are built out over a significant period; they are developments which have had a full planning permission. Of course, if development proceeds in phases with outline permission, or with a hybrid mix of outline and full permissions for different phases, the scope for varying a large development can be adjusted over time—but I am talking here about developments with full planning permission. In relation to those, it is clear that variations to that full planning permission are limited. Section 96A of the Town and Country Planning Act 1990 permits variations to a planning permission that are not material. Clause 102 of the Bill seeks to insert into that Act a new subsection (5) stating that planning permission may be granted in relation to an existing permission

“only if the local planning authority is satisfied that its effect will not be substantially different from that of the existing permission”.

That is not quite the same as the existing law; it is a step forward, but a very modest step in that direction. However, the issue is where a developer seeks permission within the boundary of an existing large-scale development for a significant variation to the plan. What happens where two permissions exist together in relation to the same site?

This matter arises in relation to what is known as the Hillside judgment—Hillside Parks Ltd v Snowdonia National Park Authority—to which I will return soon. The Supreme Court judgment was given in November last year, so it is quite recent. In paragraph 28, it said:

“There is … no provision of the legislation which regulates the situation where two or more planning permissions granted for development on the same site are, or are claimed to be … inconsistent. The courts have therefore had to work out the principles to be applied”.

The key case in this respect, up until now, has been Pilkington v Secretary of State for the Environment. I will not dwell on the two bungalows and the smallholding which were the subject of that case. Lord Widgery, in his judgment, stated that the test would consider

“whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented”.

In a sense, what Pilkington established was the idea that permission could not continue to be valid where it had become physically impossible to implement it by virtue of a subsequent planning permission that has been consented. However, that has tended, over time, to imply that, where it is not physically impossible to fulfil an existing planning permission, it would remain valid, notwithstanding that there is an additional permission in relation to part of the site. So the general expectation has been that, where permissions relate to the same site, the issue is whether the implementation of one renders the other physically incapable of implementation. If it does, the approval of the latter would render the former invalid; if it did not, the former permission would not be invalidated.

I turn now to the Supreme Court judgment of the Hillside case in November last year. An issue for the appellants—Hillside Parks Ltd—was that the Court of Appeal had held that the original planning permission for the whole site could not be interpreted as separable. Paragraph 71 of the judgment of the Supreme Court justices said:

“We agree with the view expressed by the Court of Appeal in this case that where, as here, a planning permission is granted for the development of a site, such as a housing estate, comprising multiple units, it is unlikely to be the correct interpretation of the permission that it is severable”.

Consequently, if a permission were implemented in relation to a part of a larger site, even if the rest of the original permission could be completed, the fact that the whole original permission could not be completed would render the original permission no longer valid.

The problems that arise from this were summarised in submissions to the Supreme Court by counsel for the appellants who submitted that it would cause serious practical inconvenience if a developer who, when carrying out a large development, encountered a local difficulty or wished for other reasons to depart from the approved scheme in one particular area of the site, cannot obtain permission to do so without losing the benefit of the original permission and having to apply for a fresh planning permission for the remaining development on other parts of the site. The Supreme Court justices took the view that that was indeed the legal position: that where a developer had been granted a full planning permission for one entire scheme and wished to depart from it in a material way, it is a consequence of the very limited powers that a local planning authority has to make changes that a full new permission would be required.

I am very grateful to the Home Builders Federation, which supplied a full briefing after I tabled the amendment. It supplemented my knowledge quite a bit. I hope noble Lords have received its briefing, which included several case studies to show how these consequences of the Hillside judgment last November could create cost, delay and disruption to development in large sites. I am not proposing to go through the case studies. I hope noble Lords will understand that at this late hour that would not be terribly helpful. It implies, however, with a series of examples, that the cost of a new, full application with all the attendant documentation, such as environmental impact assessments for a whole site, would be a very costly and time-consuming consequence.

Local planning authorities will not easily resource new large-scale applications for sites which they had regarded as already consented. It could mean that opportunities for desired changes, such as, in one example, to give a small builder access to part of a larger development, would not be offered if they would put the whole scheme at risk. I do not think we can even get into how difficult the community infrastructure levy or, in future, the infrastructure levy, would be to calculate in relation to such further planning permissions relating to the whole existing site. The uncertainty of whether the permission for a large site might be rendered invalid would be a serious risk to the effective delivery of major sites. Only immaterial changes on a large site would be regarded as safe: everything else would put it all at risk.

My objective in Amendment 258A is to give a straightforward statutory provision which would re-establish the position as it had been understood, i.e. that only if a subsequent permission renders the completion of an original permission physically impossible would the earlier permission be invalidated and—perhaps even more important by contrast—if it does not render the original permission physically impossible on the rest of the site, the earlier permission may continue to be relied upon in relation to the rest of that site, i.e. excluding the area to which the subsequent permission has been applied.

I am very grateful for the vocal support I have received for this amendment from the Home Builders Federation. I hope that the Minister may be able to support the intention of this amendment to the extent that she might even look to Parliamentary Counsel’s expertise to see whether my amendment serves the purpose or whether something supplementary might be moved on Report to achieve this—I hope—helpful objective. I beg to move.