Amendment 258B

Part of Levelling-up and Regeneration Bill - Committee (10th Day) – in the House of Lords at 7:30 pm on 20 April 2023.

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Photo of Baroness Scott of Bybrook Baroness Scott of Bybrook Parliamentary Under Secretary of State (Department for Levelling Up, Housing and Communities) 7:30, 20 April 2023

Amendment 258B tabled by my noble friend Lord Lansley touches on the very specific matter of drop-in applications—not a legal term but one that is used a lot in planning circles. I know he will be well-versed in these matters, and I am grateful to him for exposing me to such technical but none the less important aspects of the planning process at this time of night. I thank my noble friend.

As we have heard, this amendment has been brought forward in response to the judgment handed down last year by the Supreme Court on Hillside Parks Ltd v Snowdonia National Park Authority. My noble friend has given much more detail, but this case considered how far new planning permissions for development that would affect existing planning permissions make these earlier planning permissions unlawful to complete.

I would like to assure my noble friend that my department is already engaging with the development sector to understand the implications of the Hillside judgment for existing and future development practices. As he will know, the matter of drop-in permissions whereby a developer seeks a separate, new permission to overlap part of an existing planning consent has been highlighted as a concern, particularly given their role in supporting the delivery of large-scale developments, which can take several years to build out.

I recognise that the intent of my noble friend’s amendment is to provide legal clarity about the validity of existing planning permissions where a new, overlapping permission is brought forward. However, I must stress that the case law in this area is now quite clear that, unless expressly severable, an existing permission must be interpreted as an integrated whole, and that where a new, overlapping permission comes forward that materially departs from that earlier permission, such that it is impossible to deliver that earlier development, it would be unlawful to carry out further works under that earlier permission. Of course, where the existing permission is clearly severable, or where a new, overlapping permission is not material, it will still be possible for developers to make a drop-in application.

New Section 73B, as introduced by Clause 102, provides for a new, alternative way to make amendments to development proposals and enables minor variations to be made to existing planning permissions. This will allow for changes to be made to existing development proposals, such as to the descriptor plans or conditions, accounting for any amendments already made, providing that the cumulative effect of those amendments does not represent a substantial difference to the original permission. It will be for the local planning authority, in exercising its planning judgment, to decide what constitutes a substantial difference on a case-by-case basis. We anticipate, therefore, that the new Section 73B will provide an alternative route for making changes for many large-scale developments, rather than them having to rely on drop-in applications. We will continue to work closely with the sector to consider whether more guidance about varying permissions would be helpful, and I would be very happy to discuss this further with officials and my noble friend if he would find that useful. With that assurance, I ask my noble friend to withdraw his amendment.

Amendment 259 tabled by the noble Baroness, Lady Taylor of Stevenage, and moved by the noble Baroness, Lady Hayman of Ullock, is intended to probe the purpose of new subsection (7) in Clause 102. This amendment was also tabled in the other place, with the concern that the provisions as drafted would require applications under new Section 73B to be considered in accordance with the framework in place at the time of the original grant of planning permission. New subsection (7) requires that the local planning authority limits its consideration only to the difference in effect that could arise between the original permission and any subsequent grants to vary or remove conditions under Section 73 or the new route, as a result of granting planning permission under the new route.

For example, where changes are proposed under the new route to the layout of the development granted by an existing permission, only those changes would be considered, looking at their difference in effect from the proposed layout in the original permission as well as any subsequent variations to the layout that have already been granted. This is a complex area of planning changes, so I would be very happy to put this in writing so that noble Lords have it clearly before them.

Section 70(2) applies and requires that the decision must be made in accordance with the local development plan so far as is material to the application and any other material considerations. This means the development plan in place at the time of the decision. Consideration only of the changes in effect between the earlier planning permissions and the proposals put forward under the new route would mean that the principle of development is not revisited. This is in line with the existing procedure under Section 73, where an applicant applies to carrying out existing development without complying with certain planning conditions. I hope this provides reassurance. I will put it in writing and make sure that copies go to all noble Lords in the Committee and to the Library. I hope the noble Baroness, Lady Taylor, will therefore not press her amendment.

Amendment 260, also tabled by the noble Baroness, seeks to clarify that new Section 73B applies to the Mayor of London in his capacity as the local planning authority when determining applications of potential strategic importance. This amendment was also discussed in the other place. I can confirm that these provisions apply to the Mayor of London. An application made under new Section 73B is an application for planning permission and is therefore captured by Section 2A(1)(a) of the Town and Country Planning Act 1990, which enables the mayor to direct that they are the local planning authority for applications of potential strategic importance. Making explicit provision for new Section 73B is not necessary. There are other examples of routes to planning permission not referenced in Section 2A which are still captured, such as retrospective applications made under Section 73A. I will put this in the same letter so that it is in writing. With that, I ask that the noble Baroness does not press this amendment.

Amendment 268 in the name of the noble Lord, Lord Carrington, ably spoken to by the noble Baroness, Lady Bakewell of Hardington Mandeville, seeks to bring economic development within rural areas into the scope of permission in principle in the Town and Country Planning (Permission in Principle) Order 2017. While I have huge respect for the knowledge of the noble Lord, the noble Baroness and others and know how important economic development is in rural areas, I do not think this is the way to do it. However, I will take it back and consider with officials how we can strengthen economic development in those rural areas.