Lord Lansley (Con)

I am grateful to my noble friend Lord Banner for raising this issue through Amendment 169. His last point was that this is the second piece of planning legislation since the Hillside judgment in 2022. The earlier legislation was the Levelling-up and Regeneration Act 2023. My noble friend was not in your Lordships’ House at the time of its consideration but he will no doubt have noted that Section 110 of the Act provides for the insertion of new Section 73B into the Town and Country Planning Act 1990, the purpose of which is to say that material variations are permitted, as long as they are not substantially different from the original permission. What reading the legislation will not tell him is that, during the course of the debate on the Levelling-up and Regeneration Bill, I introduced an original amendment, the purpose of which was to restore the law to the Pilkington principle—in effect that overlapping permissions would be lawful, as long as the subsequent permission sought did not render the original permission no longer physically capable of being implemented. My noble friend on the Front Bench, then the Minister, may recall that the Government at the time did not accept it, but did accept that they should legislate. There is a difference between Section 110 and the Pilkington principle. There are, in practice, quite a lot of cases in which the permission that is sought does not render the original permission incapable but would substantially amend the original permission, and does not meet the narrow test of being not substantially different from the original permission. It was not all that I was looking for but it was considerable progress in the right direction. It was important, because a judgment subsequent to Hillside, as my noble friend will recall, said that the original planning permissions in these cases were not severable. You cannot go in, take some part of an original permission and amend it, and treat the rest of the permission as being valid. The whole permission needs to be sought all over again, which is exactly what has caused a substantial part of the problem that my noble friend has benefitted from, in the professional sense, because there are so many such permissions that would otherwise have to be sought all over again. I agree with my noble friend that something more needs to be done. I happen not to agree with his drafting of Amendment 169. We would be better off saying of overlapping permissions that, where the later permission does not render the original permission wholly incapable of being implemented, it would remain lawful, otherwise you run the risk of inconsistent, overlapping planning permissions, which is not a place we wish to get to. It would also be entirely helpful if the amendment to be introduced would make it clear that, for the purposes of this, the original planning permission is severable—you can have a drop-in permission. I hope my noble friend would agree with all of that. More to the point, I hope Ministers will agree that we have not solved this problem. In particular, we have not solved the problem as Section 110 of the Levelling-up and Regeneration Act, bringing in the new Section 73B, has not been brought into force. I have asked this question before and had a positive answer, and so I hope it is the Government’s intention to bring Section 110 into force, and I hope that can be done soon. At the same time, I suggest that my noble friend comes back to this issue on Report and perhaps brings us an amendment capable of amending the new Section 73B to restore the Pilkington principle and enable planning permissions that would otherwise relate to the same overall red line to be severable for the purposes of a material change in planning permissions.