Lord McKenzie of Luton
My Lords, we should thank the noble Baroness, Lady Byford, and the noble Lords, Lord Best and Lord Lucas, for identifying and raising this issue this evening. Clearly, as the noble Lord, Lord Greaves, said, we must cherish and support the legislation which enables the identification, reclamation and maintenance of town and village greens. However, there is clearly a problem here. As the noble Lord, Lord Greaves, asks: is there a problem? Yes. Does it need sorting out? Yes, it does.
I am not sure that we necessarily have the way forward encapsulated within the amendments before us. The noble Lord, Lord Greaves, has made some interesting suggestions and I will be interested in the Minister’s response. The noble Lord, Lord Lucas, offers the prospect of being able to identify and establish a town or village green only through a neighbourhood plan. That seems potentially too restrictive: if you do not have a neighbourhood plan in place, what happens? They will not necessarily be universal.
I side with those who say that a misuse of this legislation is taking place. I accept that it may not be widespread, but it does need sorting out. I look to the Minister to see what solutions he offers.
Earl Attlee
My Lords, I welcome the opportunity to respond to these amendments and the balanced way in which the arguments have been presented to the Committee. Of course, I speak for Her Majesty’s Government and not one particular department.
I know that the system for registering new town or village greens is a matter of rising significance to those of us interested in development sites, as well as to local authorities in their role as commons registration authorities. As I shall explain, it is also a matter of considerable interest to this Government.
We recognise the value of the town or village green registration system in safeguarding traditional open spaces in local communities. Government surveys show an increasing trend in applications during the past decade, although not all of these applications are granted. The noble Lord, Lord Greaves, suggested that problems were not widespread, although he agreed that they could be serious. Around 200 applications are made every year to register land in England as greens. The volume of applications, the character of application sites, the controversy which such applications often attract, the cost of the determination process on parties affected and the impact of a successful registration on the landowner are all matters of serious and increasing concern. We are well aware of the difficulties that some registration applications can cause where an application is made in response to advance plans for the development of a site. However, we also appreciate the importance that local communities can place on an open space as well as new development. We understand that there must be confidence that the relevant decision-making processes are working coherently in the interests of the community as a whole and not just in those of a minority.
The natural environment White Paper announced that we will consult on proposals for a new green areas designation that will give local people an opportunity to protect green spaces which have significant importance to their local communities. We are considering what changes to the greens registration system are required in connection with the new designation as a response to the Penfold review, which recommended changes to the registration system to ease non-planning impediments to development.
Amendment 148ZZBB in the name of my noble friend Lady Byford would give the Government powers to achieve a sharper focus in the criteria for registering greens. I have some sympathy with the purpose of the amendment, which could help to address some of the cases where applications have been used as a last resort only to delay development, such as my noble friend has described to us. The noble Lord, Lord Best, asked a question about rural housing. We share the concerns of my noble friend Lady Byford and the noble Lord, Lord Lucas, that the green registration applications can have an unfortunate deterrent effect on the provision of land for rural affordable housing. We are actively looking at whether amendments to the registration criteria are needed. We shall want to hold discussions with those with an interest in our proposals before concluding on the nature of any legislative changes. Legislative changes may be necessary. My noble friend Lord Greaves is right: the registration of a green is indeed a matter of fact. The criteria against which registrations are considered are set in law. There is no discretion. Local communities have no say in whether registering land as a green is desirable or not.
Lord McKenzie of Luton
My Lords, as I indicated to the noble Lord, Lord Jenkin, we support the thrust of these amendments. Certainly I agree that CIL must not be used to fill revenue holes in the budgets of local authorities. A specific assurance on that from the Minister would be entirely appropriate.
When we debated this last week, our concern was about the interaction of CIL, Section 106 and affordable housing. As the noble Lord, Lord Greaves, said, the Minister indicated possible flexibility in future after consultation. We welcome that. We also agree with the noble Lord, Lord Jenkin, that if part of CIL is to be paid to a neighbourhood forum, for example, it must be linked to infrastructure. We would prefer the decision to be made by the local authority rather than dictated according to an arrangement of the Secretary of State.
The definition of infrastructure for these purposes in paragraph 12 of the CLG book, Community Infrastructure Levy: an Overview, published in May this year, states, surprisingly:
“The Planning Act 2008 provides a wide definition of the infrastructure which can be funded by the levy, including transport, flood defences, schools, hospitals, and other health and social care facilities. This definition allows the levy to be used to fund a very broad range of facilities such as play areas, parks and green spaces, cultural and sports facilities, district heating schemes and police stations and other community safety facilities. This gives local communities flexibility to choose what infrastructure they need to deliver their development plan”.
There is already quite wide discretion in the rules.
I particularly support the point about potential double charging when a development has already entered into Section 106 obligations, some of which may be very long-term. Like my noble friend Lord Berkeley, we had discussions with Gatwick. However, this is not just an airport or a Gatwick issue.
I am not sure how best to resolve this issue. Part of the solution may relate to how and at what point CIL is charged. I understand that what triggers it is the commencement of development that has been the subject of some form of planning permission. Therefore, in a situation in which Section 106 obligations are already in place from prior development, I do not see how under the rules that could trigger a new CIL charge. However, any new development might, so Section 106 and CIL could still be paid at the same time. The potential for double charging is an issue, and I look forward to the Minister's response on that. However, the thrust of this is exactly right and we support it.
Earl Attlee
My Lords, Amendment 148ZZBBBA, moved by my noble friend Lord Jenkin of Roding, seeks to limit spending on the ongoing costs of providing infrastructure to those items that were originally funded by the levy. New developments may create additional demands on existing infrastructure as well as demands for new infrastructure. The amendment would prevent local authorities from using levy receipts to address the intensification of demand on existing infrastructure, despite the fact that this could be exactly what is needed to support a new development.
My noble friend’s Amendment 148ZZC seeks an exemption from the levy for any development that makes a contribution to existing infrastructure through Section 106 planning obligations. This is not appropriate as the two instruments are concerned with different aspects of development. Through the levy, most new development would contribute towards the cost of meeting the cumulative demands that development of an area places on infrastructure. Conversely, planning obligations are concerned only with the site-specific matters necessary to make a particular development acceptable in planning terms.
Local infrastructure may or may not be part of the planning obligation. Where it is any part of a planning obligation, it must satisfy the statutory tests that ensure that they are necessary to make the development acceptable, are directly related to the development and are fairly related in scale and kind. We do not believe that it is appropriate to exempt development that is subject to a planning obligation from making a contribution to the more general infrastructure demands that it places on the area. In addition, the existing legislation already prevents developers being charged twice for the same item of infrastructure through both instruments. That answers the concern of the noble Lord, Lord Berkeley. I will check to make sure that it also answers the concern of the noble Lord, Lord McKenzie. I am not absolutely certain that it does, but I will check, and I am sure we will return to this at a later stage.
Lord Berkeley
The port down the Thames—London Gateway—committed probably £100 million to upgrade the junctions on the roads and the motorway leading to the M25 to cope with additional traffic reported to be coming from its development. I understood the Minister to say that that is exactly what the CIL might be required to do. I see that as double taxation.
Earl Attlee
My Lords, I think that I will come to a point later in my speech that should deal with the noble Lord’s concerns.
My noble friend Lord Jenkin also proposes Amendment 148ZZD, the effect of which would be that where regulations require the charging authority to pass funds to another body, it would retain ultimate control over how those resources are used by confining spending to matters it determines appropriate.
Lord Jenkin of Roding
It is a question not of control but of what the funds can be spent on. That is what I am asking. If it is going to pass the resources to somebody else, it is with the purpose of giving the somebody else the opportunity to spend them. What I have argued is that it must be infrastructure, whether initial or ongoing. Will my noble friend not accept that?
Earl Attlee
I am grateful to my noble friend. I hope that when I have finished my speech, he will be a little bit more satisfied.
We intend to use the powers of Clause 100 to require charging authorities to allocate a meaningful proportion of any revenue generated from development in an area to the parish or community council for that area. The local council will be free to determine how those funds are used to address the demands that the new development will place on its infrastructure. This amendment seeks to take control away from those local councils and the communities that are being asked to accept the new development and will significantly reduce the incentive effect of these changes.
My noble friend Lord Jenkin asked whether CIL can be passed to others on condition that it is spent on infrastructure. Where CIL is passed to another body, it must be spent on infrastructure to support the development of that area. I think I have repeated that answer.
Lord Greaves
Will my noble friend confirm that passing those resources to other bodies will occur only in the case of parish and town councils, and community councils in Wales, and that they will not be passed to neighbourhood forums or any other organisations?
Earl Attlee
My Lords, that is a slightly technical question for me, but I will write to the noble Lord on it, unless inspiration comes quickly.
My noble friend Lord Jenkin of Roding and the noble Lord, Lord McKenzie, asked whether such resource will be used to meet local government shortfalls. We have clearly set out that the purpose of the levy is, and must continue to be, to support development. I can assure noble Lords that the money cannot be substituted for general local government spending.
My noble friend Lord Jenkin asked the Government to consider greater flexibility in the use of CIL. We will consider whether allowing spending on infrastructure and other matters could improve the levy’s ability to support development. We agree that infrastructure is vital to supporting new growth and development but we do not accept that it is necessarily all that is needed. We will reflect on that and return to it at a later stage.
Lord Berkeley
The noble Lord, Lord Greaves, suggested that Section 106 might be being phased out. Is that correct?
Lord Shutt of Greetland
My Lords, it may be helpful if I make the point that it is very much the Government’s hope and expectation to publish the forthcoming business early tomorrow. It will set out the programme for next week and, indeed, for the two weeks in September. It has not been possible to be absolutely certain about this because at least one of the participants, particularly as far as September is concerned, has been taking part in the debate, and a little more consultation has to take place. However, it is expected that the forthcoming business can be produced by tomorrow.
Lord Jenkin of Roding
Does that mean that we will be taking the Localism Bill next Tuesday?
Lord Shutt of Greetland
My Lords, I believe that that is exactly what will be in the document on our forthcoming business, but there will be other features too. However, as noble Lords heard earlier, it is the hope and expectation that the Localism Bill will be the major business next Tuesday and, indeed, on Wednesday.