Contribution
My Lords, Amendment 169 seeks to mitigate the effect of the Supreme Court’s judgment in a case called Hillside. I should at the outset declare an interest, in that I was leading counsel in Hillside, albeit I am no longer retained by the party in question. It is a highly technical amendment but really important, and I will do my best for the record to summarise the problem. The Minister and I have had discussions, and I know she is aware of the issue.
Large developments—the most important ones for the growth this country needs—such as urban regeneration schemes, new settlements, large urban extensions, infrastructure and the like can take many years, and quite often decades, to build out. Over that time, it is almost inevitable that some of the details of the later phases will need, by the time they get built out, to change and adapt to evolving needs, to things that have changed in the economy or in our ways of life since the original planning permission was granted.
To put a bit of flesh on that, for example, a mixed-use urban extension might have offices in the later phases that can no longer be filled due to the post-Covid shift to working from home, which could not have been foreseen at the time the original outline permission was granted. Therefore, it may be proposed to swap out those offices, which would simply be a white elephant, for last mile logistics, as the need for that sector has increased. A hotel planned for a later phase may no longer be viable because of changing tourism patterns, but there may be a greater need for a care home instead.
A very well-known example is the largest outline permission in this country, Liverpool Waters. The planning permission for the regeneration of Liverpool Docklands was granted in 2011. The city council is on the record as indicating that would be a three-decade planning permission to build out. During the currency of that development, an opportunity was identified to relocate Everton Football Club into its amazing new stadium, which opened only a few weeks ago. Therefore, the development had to be rejigged to accommodate the stadium.
For various reasons, applying for a new site-wide planning permission in circumstances where there has been a need to adapt and change in relation to evolving circumstances is not practical. It is too onerous in terms of the evidence base, because you need a new site-wide EIA, for example. It is too expensive for that reason, and due to the cost of planning fees for site-wide permissions and large-scale developments. Importantly, it is too slow, because everything would have to be reappraised. You would have to redo the surveys, which can take place only at certain times of the year, even in relation to those elements that are not changing, because the site-wide second permission would apply to the whole.
Therefore, a widespread practice has developed in the planning field in what is often called drop-in or stand-alone permissions, where the planning application red line is drawn not around the whole site area, but around the area it is going to change. In one of the examples I gave earlier, you would draw the line around the area earmarked for offices, not around the whole development. You would then apply to swap the particular development within that stand-alone planning permission area. The local authority would consider the planning merits of the change going on in that stand-alone area without having to re-appraise everything.
The developer would obviously have to make a good case for the change and if it did not, it would not be allowed. But if it did, and this routinely has happened, a change would be authorised. If permission was granted, the change would take effect pursuant to the stand-alone permission, so the area for the offices would become logistics in the example I gave, and the remainder of the wider development would proceed unchanged under the original site-wide permission.
The Supreme Court in the Hillside case has drastically affected this practice. The legal principle that the Supreme Court has enshrined is that if implementing a later stand-alone permission has the effect that it is now physically impossible in a material way to build out the site-wide permission in its entirety, the site-wide permission can no longer be relied on for any future development that is authorised by it but no longer built, so the residual site-wide permission is essentially lost, with very profound consequences.
There are sometimes workarounds, but they are incomplete and, even when they do exist, they can be uncertain, risky, cumbersome, slow and costly. To give a sense of the magnitude of this problem, since the Hillside judgment was given in late 2022, I estimate that I have written between 300 and 400 opinions on how to work around Hillside—so the one person who will lose out because of this amendment is me. This amendment would clear up the uncertainty and provide a clear route through.
I am not wedded to the precise drafting, if the Minister and her officials consider it could be improved. I expect the Minister will say that the Government recognise the difficulty presented by Hillside but that finding a solution to it is a complex matter which requires detailed consideration—and so it is. However, with respect, it is the job of the Government and Parliament to grapple with those complexities and come up with a workable solution, rather than kick the can down the road.