(11 years, 3 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
The Earl of Lytton
“Further provision regarding advance payment
After section 52A of the Land Compensation Act 1973 insert—“52B Further provision regarding advance payment
(1) A request for an advance payment under section 52(2) must be in such form as may be prescribed by regulations to be made under this section.
(2) Where a request under section 52(2) has been made to an acquiring authority, the acquiring authority must make an advance payment within the time specified in the regulations unless any of the circumstances specified in the regulations apply.
(3) The regulations must provide for the circumstances in which an acquiring authority must be required to make an advance payment prior to taking possession of a claimant’s land.””
The Earl of Lytton
My Lords, I tabled these amendments as a probing gesture and, I hope, a reasonably friendly one. I wish to speak to Amendments 58 and 59 together.
I have a professional interest and involvement in the world of compulsory purchase since my early days in—
Lord Ahmad of Wimbledon
My Lords, as a courtesy to the noble Earl, if noble Lords wish to leave the Chamber, may I suggest that they do so quietly? Thank you.
The Earl of Lytton
My Lords, as I was saying, I have a professional interest and involvement in the world of compulsory purchase going back some 30 or more years and have a professional interest to declare. I also wish to record the assistance that I have had from a small group of specialist practitioners in the Compulsory Purchase Association who have been instrumental in helping me draft these amendments. There was to have been a meeting between a representative of the Compulsory Purchase Association and the department but I think that has not yet happened for various reasons. I hope that it will happen because there are probably things that could usefully be discussed, but I know that the reasons for it not happening were beyond anybody’s control.
For more than 20 years, legal experts, surveyors, claimants, acquiring authorities and others have campaigned to have the compulsory purchase system modernised. I have previously campaigned to remove some of the blocks and impediments to growth and infrastructure.
In passing, I should mention Fair Play, a publication produced last year by the Country Land and Business Association on dealing with blocks in the compulsory purchase system. I know that compulsory purchase is a slightly peripheral aspect of this Bill but I am reinforced in my endeavours in this respect by the Bill’s Long Title, which addresses the principle of unblocking systems.
Compulsory purchase is vital to growth and particularly to the creation and laying out of infrastructure. We need a compulsory purchase system that is properly modernised and is understood, with the majority of participants signed up to its principles. Participants need to believe that it is working. At the moment, I feel that there is widespread disdain and that we are dealing with a system that has fallen into a certain amount of disrepute. Participants need to support the process, even if they do not support the specific outcomes; otherwise, we will have delay and sclerosis. We have had many problems in the planning system and other systems, and the compulsory purchase system is another of those systems of administration that need to operate slickly and effectively. One gets the impression that, given the length of time for which this matter has been under discussion by experts of all sorts, it has fallen into the Whitehall “just too difficult to deal with” category. I hope that that is more perception than reality but there are many voices who suggest that the system is long overdue for reform and overhaul.
The Minister kindly wrote to me on 21 January, and I thank her for that. In particular, she endeavoured to answer a point that I had raised on compulsory purchase. She explained that the Bill is intended to deal with specific and small-scale issues and points of concern. I understand that but one needs to look at the system holistically. If we are dealing with growth and infrastructure, and getting things cranked up again for our economy to prosper, it is important that we do not deal with this matter at the periphery— at the edges. We need to deal with the central issues.
I should like to quote from the noble Baroness’s letter. She said:
“I do not think that it is appropriate at this stage in the Bill proceedings to take forward substantive changes to the compulsory purchase system without wider engagement and prior discussions on the details”.
That is all very well, but I was not sure if she was referring to amendments to this harlequin Bill in general or to compulsory purchase in particular. Perhaps she could clarify in her reply the degree to which compulsory purchase should be a component of the Bill. If she was referring specifically to compulsory purchase, I should point out that this matter has been under discussion for a long time. The issues have been well trailed.
In December 2003, the Law Commission published its paper, Towards a Better Compulsory Purchase Code: (1) Compensation. For nine years, that has been gathering dust in the noble Baroness’s department—not, I appreciate, under her jurisdiction as such. However, for far longer, experts have been campaigning for change. Blight, a degree of sharp practice in the advance payments procedures, out-of-date planning assumptions and so on are rife. All these are blocks and impediments to a streamlined system. No wonder the Country Land and Business Association, of which I am a member, has had a lot to say about this issue. It is worthy of consideration. We need to bear in mind that if we are going to roll out schemes such as High Speed 2, the way in which compulsory purchase operates is intrinsic to that process if it is to be carried out in any sort of sensible timescale and at sensible cost.
My amendments are an attempt to test the Government’s resolve and are a litmus test of their real intentions as regards growth and infrastructure. I turn to the detail. Amendment 58 is about advance payments. I should explain that when a compulsory purchase order is made and land is taken, a claimant is entitled to an advance payment of 90% of the estimated compensation due to them, while the final amount is being worked out. It should be borne in mind that at that stage, the relevant land has been taken and the acquiring body is in possession. The problem is that there is a lack of standardisation in the approach to claiming and receiving this payment.
If there is a disagreement regarding the completeness or otherwise of the information required or the basis of the payout, there is no satisfactory quick or necessarily fair solution for dealing with the matter. In those circumstances, it is wide open to abuse, and the abuse can occur on either side—both in the employing authority and, indeed, through claimants trying to manipulate the system to suit their own purposes. This simply causes delay. Advance payments are essential to a claimant’s ability to arrange their affairs. This can, and often is, mission-critical. Statutory interest—currently effectively zero—is no compensation when cash flow is king.
Lord McKenzie of Luton
My Lords, we should thank the noble Earl, Lord Lytton, for his amendments because he raises an issue which is clearly of importance. I particularly commend his practice of giving us an explanatory note with his amendments. Perhaps I may commend that to other noble Lords and I shall take it on board myself.
As my noble friend said, we are dealing here with a complex compulsory purchase system in which specialist practitioners are involved. To some extent, it may be seen as just too difficult to deal with. However, my noble friend makes an important point: if it is one of the components that are holding up growth, it should be addressed. I checked with one of my colleagues, whose knowledge of this is greater than mine, his reaction to the amendment and certainly to advance payments and loss payments. The response was that the amendment does not seem unreasonable. I think that is quite a way from our saying that we are in a position to support these amendments but I look forward to the Minister's reply, particularly on the question of, if not now, when will we be able to look at the system holistically and unravel some of the complexities and inefficiencies that my noble friend has identified.
Lord Ahmad of Wimbledon
First, I join the noble Lord, Lord McKenzie, in thanking the noble Earl, Lord Lytton, for explaining the two areas of compensation code for compulsory purchase that are of concern to practitioners and to claimants and indeed for proposing some remedy. I think his explanations were very clear.
First, as regards Amendment 58, the Government are very grateful to the noble Earl for raising this matter. I, too, am concerned to hear about the poor practice in making advance payments of compensation. However, it is not clear how the new Section 52B of the Land Compensation Act 1973 would provide the necessary teeth, for want of a better term, to force the acquiring authority to make the payment when it is due.
The provision to allow an advance payment to be made before possession is taken is new but, again, the same issue arises about how to ensure that the payment actually happens. In both cases, the provisions may not be effective without the additional use of judicial review to obtain an order requiring a tardy acquiring authority to pay the necessary amount.
On Amendment 59, the Government note the view that the percentages for loss payments should be reversed, so that occupiers get the lion’s share. This would be a popular change for occupiers and perhaps less so for owners. The noble Earl, Lord Lytton, suggests that this change would be cost neutral and I have no doubt that cases can be found where this is so. Some have been set out in the Compulsory Purchase Association’s evidence to the Committee in the other place. There may equally be cases where the amount of compensation would rise. Currently, both the evidence and the views of the acquiring authorities are lacking.
For both of these amendments, the issues raised would require further investigation before they could be taken forward. As I said earlier, it is not clear where the teeth could be found to ensure that advance payments are made in time. This might be a subject for good practice guidance, as we have mentioned in respect of other areas of the Bill. That guidance should come from the sector. I am sure that some authorities do things properly, and if others were told how this was done, the situation may improve. The noble Earl was quite clear that sometimes it is not apparent how this process can be done more effectively and the information is not readily available.
The noble Earl also mentioned the letter on loss payments sent by the Minister. He raised the issue about meetings, to which I shall turn in a moment but, first, I shall speak about loss payments. It is clear that the noble Earl’s proposals will be popular with occupiers but not with investment owners. We have not yet heard the view of acquiring authorities. I am sure that the noble Earl will appreciate and understand that, at this time, I cannot commit the Government to taking either of these amendments forward. Even if I could, the argument may quite understandably be made that we need to look at these in more detail, have the necessary investigations and, of course, conduct all consultations, which may not be possible during the passage of the Bill.
The noble Earl suggested, and my noble friend acknowledged the fact, that it would be useful to meet on these amendments and on the particular proposal specifically. Therefore, it would be helpful if we asked our officials to arrange a meeting to discuss the two matters raised and invite the noble Earl and his associates to discuss these matters further. We would welcome such a detailed discussion. Based on those assurances and the offer of a meeting, I hope that the noble Earl will be minded to withdraw his amendment.
The Earl of Lytton
My Lords, I thank the noble Lord very much for his reply. As I said, my amendments are probing—I wanted to elicit a response. At this stage of the Bill, I am very pleased with the response and with the offer to meet. The Minister identified one or two things that I will comment on. Certainly the intention with regard to advance payments, and how that system would work, was intended to tap into the Land Compensation Act regulatory power provisions. There is a much longer document behind that, which sets out a series of recommendations that I know have been submitted to the department by the Compulsory Purchase Association. I hope that they will form the basis of a discussion on that point. It will require the Secretary of State’s regulation-making functions to bring that in. That is the only place where the teeth are going to bite.
I note the point about the views of acquiring authorities; it is perfectly valid. However, acquiring authorities very often use one of the same specialist practitioners with whom I have been conversing through the Compulsory Purchase Association. The relevant distillation of views is there, but it is perfectly right to raise the point and ask for better and fuller particulars to be provided. What the noble Lord said was perfectly valid. I look forward to a meeting and thank him very much for his invitation. I may return to the issue at a later stage in the Bill, but for now I beg leave to withdraw the amendment.
Lord Adonis
“(1A) The Secretary of State shall by regulation introduce statutory guidance specifying how statutory undertakers shall consult with local planning authorities.”
Lord Adonis
My Lords, I shall speak also to Amendment 59B in my name and that of my noble friend Lady Whitaker. We are dealing here with national parks and areas of outstanding natural beauty. The issue is how to get superfast broadband to them. The key point on which we are all agreed is that this needs to happen superfast. No one disputes this. The DCMS consultation paper, published yesterday, states:
“We want to ensure that planning-related barriers to deployment are minimised at a time when upgraded broadband infrastructure is being rolled out to the rural or remote areas where connectivity is needed the most”.
I think that the whole House will agree with that.
The consultation paper published yesterday makes an excellent case for why we need a rapid rollout of superfast broadband. It points out that in the national parks there are more than 22,000 businesses, of which more than 70% are SMEs. In areas of outstanding natural beauty there are more than 61,000 businesses, of which 74% are SMEs. It also points out that there are more than 153,000 homes in the national parks, and more than 467,000 in areas of outstanding natural beauty. The consultation paper states:
“By providing planning certainty, the aim is to encourage operators to invest in new infrastructure to support greater rural connectivity for householders and SME businesses in protected areas, supported by the fact that whereas 84% of urban premises have superfast broadband, the figure drops to just 19% in rural areas”.
However, having set out those figures on why it is important to get superfast broadband into rural areas, including our national parks, as soon as possible, the paper totally fails to make an argument in respect of the planning system to bring this about.
Like other noble Lords, I have spoken to those in charge of our national parks. They tell me that, far from obstructing superfast broadband, they are desperate for it. They see it as absolutely vital to their communities and to their sustainable futures. They have almost invariably given the consents required for the installation of the necessary cabinets and masts through the existing prior notification procedure.
Baroness Whitaker
My Lords, in speaking to this group of amendments, I declare my interest as president of the South Downs Society, which co-ordinates NGO representations to the South Downs National Park Authority. The risks to our national parks were well rehearsed at Second Reading and I do not propose to repeat them.
My noble friend Lord Judd and other noble Lords have tabled an amendment to delete Clause 8. I have a great deal of sympathy with that. On past history, the national parks have done much to facilitate broadband, and delays in its rollout have not been caused by them, as my noble friend Lord Adonis said in such comprehensive detail, but I sense a strong concern in your Lordships’ House about the rollout of broadband in rural areas. If the Minister is not persuaded that Clause 8 is unnecessary, I support my noble friend Lord Adonis in Amendment 59B to safeguard our national parks by restricting activity only to broadband, and my own amendment, Amendment 59C, to further protect our national parks by codifying the installation of any equipment with an opportunity for parliamentary scrutiny.
The Minister gave some assurances in her closing speech at Second Reading, but I think that more precision is needed. She also said that,
“it is absolutely vital to ensure that rural areas have broadband”.—[Official Report, 8/1/13; col. 107.]
As it is broadband that she is concerned with, she will surely accept that Amendment 59B makes it clear that these easements should be available only to procure broadband equipment, and if there is parliamentary approval for the response to the mandatory consultation, as the amendment provides, Parliament will have the opportunity to check that best practice is followed.
Amendment 59C in my name strengthens the proposal of my noble friend Lord Adonis in Amendment 59A for a statutory code by again bringing Parliament into the process of verifying best practice. The code would ensure that there is no postcode lottery for different national parks; all will have the standards of the best. It will make it easier for the installers of broadband equipment to plan and to have clear expectations from local authorities. It is also entirely right that Parliament, which passed the great 1949 Act setting up the national parks, should have the opportunity to consider fully and scrutinise any modification of its intentions via affirmative resolution.
These amendments set out minimum requirements from which we should not resile if we are to give out the pro-broadband message while preserving the essential nature of our most cherished national landscapes. I beg to move.
Baroness Parminter
My Lords, I support the deletion of Clause 8 and in so doing I thank my noble friends Lord Greaves and Lord Marlesford, and the noble Lord, Lord Judd, for joining me in this. The debate today is complicated, given that we are considering the Government’s proposed approach to deliver broadband to remote and special areas through new secondary legislation that was set out in a consultation published only last night, which they argue requires changes to be made to primary legislation as set out in Clause 8.
The first issue for the Committee to consider must be whether a case has been made for any legislative changes. The examples given by the Government in support of this legislative change do not, as the noble Lord, Lord Adonis, has said, demonstrate convincingly that national parks and AONB planning authorities are the barrier to delivering the broadband that rural communities want and rural economies need. The few examples of broadband planning delays cited are in areas outside national parks and AONBs. Indeed, the argument used in the Government’s consultation document to support changing the law is not that planning authorities in national parks and AONBs have been to date a barrier, rather it is the need to cut the costs of deploying broadband infrastructure to enable it to go as far as it can.
The second issue is whether the secondary legislation the Government want to introduce requires the proposed changes to be made to the primary legislation. Of particular concern in that regard is why there is a need to change the long-standing duties in national park and AONB legislation. I can see the argument to add a further consideration to the Communications Act 2003 for the Secretary of State to have regard to promote economic growth at the same time as other existing duties, which is what subsection (1) of Clause 8 proposes. This means that the Secretary of State would be obliged to consider the need to promote economic growth alongside and, crucially, give equal weight to, other considerations, which would include having regard to the need to protect the environment, and in particular to conserve the natural beauty and amenity of the countryside. However, I fail to see why the following eight subsections of Clause 8 are necessary to ensure that these pieces of legislation are consistent with the amended Communications Act.
I am not convinced that amending the Communications Act requires the disapplication of the duty to have regard to conserving beauty in other pieces of primary legislation. If this House is to accept changes to the legislation, the Minister must make clear the legal case for the necessity of such a disproportionate measure. It is a disproportionate approach, which not only sets a dangerous precedent for weakening the protection given to national parks and AONBs but creates the impression that the Government are intent on nibbling away at protection policies for our most valued landscapes and countryside; protection which has been in place since 1949. This approach makes the commitment in the recent National Planning Policy Framework to give great weight to conserving landscape and scenic beauty in national parks and AONBs sound very hollow indeed and is disproportionate, given that national parks authorities are not inflexible regulators, bystanders or obstacles to broadband rollout. National parks authorities are leading the development of local broadband programmes, with the New Forest National Park Authority supporting parish councils in a joint bid to Defra’s very welcome £20 million rural communications broadband fund and the Lake District National Park sitting on a Cumbria-wide steering group aiming to get superfast broadband coverage to 90% of the county, including the national park.
It is right that local planning authorities are involved in decisions which balance the need for broadband and countryside protection. Cabinets are big and intrusive—nearly two metres tall—and the noble Lord, Lord True, gave some excellent examples at Second Reading of insensitive siting. Efforts to camouflage cabinets green are wasted when operators such as Virgin and BT use them as advertising hoardings to promote their campaign that, “Fibre broadband is here”. In Guildford this week, Virgin Media is having to remove 200 posters on such street cabinets. Experience to date hardly suggests that operators are going to site in the least visible places, unless they are under some duty to consult. It is right that planning authorities work with providers to ensure that the effects on the landscape are minimised while delivering the economic and social benefits we need.
If the Government intend to regulate to temporarily remove the current requirement for communication providers to seek prior approval from local planning authorities in protected areas before permitted development can go ahead—that seems to be their direction of travel—I, too, would support a code of best siting practice between operators and local planning authorities to show how broadband undertakers should work with local authorities on siting. The Government’s consultation does not make it clear whether the code they propose is voluntary or mandatory. It should be mandatory, to give operators the certainty they claim they want in planning procedures and give local authorities the certainty that their legitimate concerns will be heard. As the Government seek to champion the speedy and cost-effective rollout of broadband to deliver economic growth, it should reflect on the need to ensure that the measures they propose do not unwittingly compromise the visual amenity of rural areas which underpin rural economies.
The impact assessment for this legislation and the Minister’s remarks at Second Reading make it clear that the Government have no idea of the number of overhead lines, poles and masts which could end up pepper-potting our most treasured landscapes if these changes go through. The cumulative visual impact of broadband infrastructure could have a chilling effect on the rural economy. Of people who were asked why they went to the Peak District, 85% said it was because of the visual appearance. However, the proposed regulations would leave broadband infrastructure siting at the discretion of the operator. It is crucial that the consultation period on the proposed regulations identifies the scale of infrastructure that rural areas may need to accommodate. Every step must be taken to ensure effective dialogue with local authorities about siting, or the cumulative effect of these changes could undermine rural tourism and local economies.
In that regard, it is worth reminding ourselves of the significant investment made by Ofgem and electricity distributors over recent years to enhance the beauty of treasured landscapes by burying overhead lines. They are doing this because local people recognise the value to local tourism and the economy of maintaining the visual amenity in their most precious landscapes. They have already spent millions removing 223 kilometres of overhead electricity lines and now Ofgem has given approval for £500 million of investment until 2021 to underground more lines. While electricity companies are working with local communities to protect valued landscapes from visual scarring and ensure that rural tourism can flourish, it would be inconsistent, to say the least, if government broadband policy allowed the insensitive siting of broadband cabinets, poles, lines and masts to disfigure the areas and undermine the tourism industry.
We all fully support the provision of broadband to rural communities, but this clause is a disproportionate response to deliver that. The clause should be removed and I hope that the Minister will use the time before Report to reflect on that, and on the merit of a statutory code of practice showing how broadband operators should work with local authorities on siting in protected areas and thus deliver the broadband that we and—crucially—rural communities and businesses want.
Lord Judd
My Lords, I am very glad to be able to warmly support the noble Baroness, Lady Parminter, for the proposition that the clause should be removed. The more I look at this legislation and hear the discussions around it, the more I wonder whether on Report it will not be necessary to return to the very first clause of the Bill. For something which is crucial to the well-being of the nation, it is interesting to see the list of specific organisations that are exempted from these positions, and to see that this totally ignores the national parks authorities. It seems to me quite extraordinary. Many of them are bodies related to urban matters, but not to these qualitative matters for the nation as a whole.
I have to declare an interest. I am a vice-president of the Campaign for National Parks, and I do live within a national park. I am very glad to have broadband and want it to be as good as possible. It is no good causing any confusion over that; most of us who live in national parks want broadband.
The issue is about what is and what is not necessary, and about how it should be done. We have moved a long way; less than a year ago in the National Planning Policy Framework, the Government said this:
“Great weight should be given to conserving landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty. The conservation of wildlife and cultural heritage are important considerations in all these areas, and should be given great weight in National Parks and the Broads”.
That was a fine statement; I could not question it. It was a good, reinforcing statement about the importance of the parks. It is necessary—as the noble Baroness did—to stress how essential the parks have been seen to be since that period immediately after the Second World War. In that period there was, in the best democratic tradition, a lot of controversy, but about some things there was a lot of qualitative cross-party consensus. We were interested in the kind of Britain we wanted; we wanted a qualitative as well as quantitative Britain. We saw the economy and the measures put in place for the operation of society not as an end in themselves, but as a means of underwriting and strengthening the kind of society we wanted. With all the pressures that operate in society, all the impersonal technological development and all the stress and strain that this puts upon people, we desperately need—if we are to be a healthy, effective, and prosperous nation—these special areas that provide total contrast with the hurly-burly of life outside. They are places for reflection, for physical engagement with nature and its surroundings, and have the ability to raise the spirits by the beauty and culture of what is there. That is crucial to the psychological well-being of the nation.
I was saddened but not altogether surprised the other day when I heard that there was a rather acute discussion going on—I have to say, this was about the area in which I live; it was about the future of nuclear waste disposal. An official of some significance within the area of energy said, “Of course, we have to remember that we are concerned about the practicalities of what is important for the nation. The arguments about national parks are emotional”. Of course, there is a great deal of emotion about the national parks and what they mean to the nation. It would be a sad place to be if that emotion did not exist.
I suggest that that official, and all those involved, should take on board that this is actually a debate about quantity versus quality and how to get the kind of society you want. It is about ensuring that quantitative considerations are of course taken immensely seriously and driven forward with all possible vigour—the survival of the nation depends on this—but that we are absolutely determined to preserve the qualitative elements that make the nation a good place to live and which play into the health and well-being of the workforce, if that is how we are to look at people, and those who service the economic machine.
This part of the Bill raises very serious issues. It is rather sad when in situations of this kind, acute as they are, Ministers or others can get up and say, for example in the context of committee work, “Well, we have published a consultation paper”, when of course the consultation paper was published yesterday. That really does not give very much time for people to consult with those of us who have the privilege of being able to speak in Parliament about the issues.
I have taken the opportunity of having some telephone conversations in order to discuss some of the immediate reactions to the situation. I hope the Committee will bear with me if I refer to those briefly. The first thing that becomes very clear in the consultation paper is that the Government intend to press ahead with the changes set out in the Bill. Indeed, they are resolute in wanting to do that. Well, we take that position seriously. It is important to consider why it is so fundamentally important to press ahead before the outcome of the consultations has become clear. Of course, a Government who are sensitive and open to persuasion would want to take those consultations into account before they decided they were going to press ahead at all costs.
Paragraph 1.7 of the consultation paper refers to the establishment of a code to support best practice. It is interesting to note that to date DCMS has not sought any input on this from the English National Park Authorities Association. Although a number of organisations have been charged with the preparation of the code, the ENPAA, Defra, Natural England and the National Association for Areas of Outstanding Natural Beauty are not listed. Can the Minister give an assurance that the Government will actively be asking for the input of NPAs and AONBs?
Secondly, it is important to recognise that the code in no way addresses our main concern over the precedent that would be set by removal of the “have regard” duty in Clause 8. Paragraph 1.4 begins to create a division between different protected areas; for example, SSSIs are to continue to be protected, but national parks and areas of outstanding natural beauty are not. Perhaps we could hear a bit more about why this is.
Paragraph 1.5 refers to providing greater planning certainty. It can be seen that the overwhelming majority of planning applications and prior notifications are approved. My noble friend Lord Adonis, who made a very powerful case for the points that I and all those who feel the same way are trying to make, drew attention to this point.
We are told that the measures will provide greater planning certainty, but, as my noble friend said, all the evidence is that there have been no difficulties in this area. Please establish what the difficulties are which are used in support of this draconian legislation. More than 90%—almost 100%—of applications are approved. They are approved with good will because there has been consultation, points have been taken on board, and modifications and constructive and sensible compromises have been made.
Paragraph 2.2 makes the case that undergrounding new lines is more expensive. So it seems, although I am not totally convinced about this; I am not sure that imagination has been exercised with as much drive when considering different methods of undergrounding as the Government are bringing to the Bill as a whole. This is sometimes a very emotional argument which is not altogether practically borne out with evidence—but I shall not advance that case at this moment. However, it would be useful to know what other options have been considered for reducing the costs of digging before going to the option of weakening the protection of national parks.
Paragraph 2.16 refers to the prior notification process relating to cabinets. As I understand it, the park authorities would be happy to work with operators to assess locations for cabinets more strategically, one by one. There may even be a willingness to review the 56-day limit for this, but I have no authority to say that; I just have the impression that they might be open to discussion.
Paragraph 3.5 seeks to reassure that changes will be used only for broadband and not mobile masts. The explanation given is fair enough, but there would not appear to be anything to stop this or to stop future Governments using the changes for masts of other kinds. Indeed, EU rules prevent the Government giving such technology-specific assurances even if they wanted to.
The consultation makes no reference to wider concerns expressed about the precedent that risks being set for other policy areas. That is crucial; it is the thin end of the wedge. Everybody has realised up till now that, with all the pressures that operate on society—with which the national parks and the areas of outstanding should be a contrast—it is important to have very firm and unquestionable protection of their special and unique status. Once you break that, where is it going to end? One argument leads to the next and, before you know it, you have ended up with a home county. There are many very delightful Home Counties, but they certainly cannot provide what national parks and areas of outstanding beauty provide for the nation.
This is a very dangerous clause. It is also a very sad clause, because it is another spur to the altogether-too-evident trend in our society towards knowing the price of everything and the value of nothing. It is a society that has lost its values. It has lost its sense of aesthetic priority, which makes for a civilised society. I want Governments of every persuasion to stand by the principle that we all want to live in a civilised Britain. I do not believe that the Bill will help in that respect.
Lord Renton of Mount Harry
My Lords, I declare an interest in this matter, as I live in the South Downs National Park; indeed, I have lived there for a great many years. I was pleased by and interested in what the noble Baroness, Lady Parminter, said, which I strongly support.
Under subsections (1) and (2) of Clause 8, the Secretary of State can make regulations that will override the duty on the national parks to conserve beauty, from the 1949 Act, in favour of promoting economic growth. The same applies to the duties of the public authorities in the Countryside and Rights of Way Act 2000. What does this mean? It means a tremendous falling off of the power and strength of national parks, to be taken over by the relevant Minister.
In that connection, I cite one instance from my area. A year ago, E.ON submitted a planning application to run a cable from near Worthing—where it will emerge from the sea, connecting 100 wind turbines that are to be built about seven miles offshore from Seaford—to E.ON’s substation in Bolney, some miles from Brighton. This takes away from any real strength on the part of the South Downs National Park. It is proposed that the cable will be laid across the downs; it will be put underground. After some discussion with the national park, the application was called in by the appropriate Minister, as provided in law, on the grounds of its importance in the national interest. Surely that shows, sadly, the way in which we are going.
I remind noble Lords that the South Downs National Park was only a consultee on the application and now has no planning authority on it at all. As a consultee, the park authority pointed out that the cable did not serve the park’s two statutory purposes: first, to conserve and enhance natural beauty, wildlife and cultural heritage; and, secondly, to promote opportunities for the understanding and enjoyment of the park’s special qualities. All of that has gone. Instead, it will be up to the Minister to respond in the way that he thinks appropriate.
It is clear to me that an applicant seeking to run power lines across the South Downs will now have a fair chance of doing so, notwithstanding the level of protection that Parliament gave to the national park in the 1949 Act. If I am right about the Minister being allowed to take the decision away from the park authority, the process will be made so easy for him that I wonder why he needs Clause 8 in the Bill at all. This is therefore a matter for clear, keen thinking. Surely we do not want to remove the power, actions or knowledge from national parks and put them into the hands of Ministers when, frankly, they may not really know very much about the job.
Lord Cameron of Dillington
My Lords, I come to this clause and this group of amendments entirely from an economic perspective. I am very much in favour of greater economic growth for our countryside because, frankly, all too often our rural deprivation is ignored, and I am as keen as anyone that entrepreneurs and businesses should be given all the help they need to thrive throughout rural England. It goes without saying that broadband and all the modern means of communication are a crucial godsend to the diversification and profitability of our rural economy. However, I have also always believed that the economy of our protected areas, such as the national parks and AONBs, is very much dependent on their beauty. Not only do these areas attract tourists and other visitors who spend their money there—indeed, because of these protected areas our national economy attracts visitors who spend their money in this country generally while going to or from those areas—but their beauty affects the valuable branding of all the businesses within the designation.
The economic benefit to these businesses depends on the retention of the beauty with which the area is associated. Branding could obviously affect agricultural or food products—South Downs lamb, for instance, and Exmoor ale. It could even affect other products such as dales furniture and so on. Brand names are important in marketing; if they inspire visions of beautiful countryside and fresh air, as cool as a mountain stream or whatever, then they are also very valuable. It seems right that for economic reasons, as well as for social and environmental reasons, we should truly protect our protected areas. We must never allow them to be nibbled away at in the way that this clause seems to be doing.
This is not to say that anyone is trying to prevent modern economic activities in our national parks—indeed, far from it: the national parks authorities have a statutory duty to promote the economy within their territories. In this case, that is exactly what they seem to be doing. As the noble Lord, Lord Adonis, said, 97% of the 392 applications for prior notifications on overhead wires and cabinets have been approved. The current system allows for meaningful discussion about where and how they should be introduced. If in 97% of cases an agreement has been reached, I see absolutely no benefit in changing the current situation. I am quite happy to make the current, meaningful discussions statutory or mandatory, as proposed in some of the amendments in this group, but it seems to me that economic progress is already being accommodated in our national parks. At the same time, the crucial purpose of our protected areas as valuable heritage and economic assets is being protected, so we should leave well alone.
Lord Greaves
My Lords, I have some amendments in this group. In view of the discussions that are likely to take place today, I think I should add some interests to those I declared at the beginning of the Committee: namely, as a patron of the Friends of the Lake District and of the British Mountaineering Council, of whose access and environment committee I am a member, and as a vice-president of the Open Spaces Society.
I have tabled amendments to remove or leave out subsections (2), (3), (4), (6) and (7), really to draw attention to the particular protected areas that this clause is aimed at, and where it weakens that protection in the case of communications equipment. It does that by amending the National Parks and Access to the Countryside Act 1949, in the case of English and Welsh national parks. It refers to conservation and amenity lands in Northern Ireland, of which I know very little but I am sure they are important, the Norfolk and Suffolk Broads Act 1988—the broads are a national park in all but name—and the similar protection given to areas of outstanding natural beauty in the Countryside and Rights of Way Act 2000 and to national parks in Scotland in the National Parks (Scotland) Act 2000. It is slightly odd that we are legislating here about cabinets and overhead wires in Scotland in view of the existence of the Scottish Parliament and the Scottish Government, but it is just one of the anomalies of the devolution settlement.
I shall concentrate on national parks in England and Wales because they are the most important as far as England and Wales are concerned—clearly, national parks in Scotland are of equal importance—without in any way saying that other areas are not very important, and I shall look at what the proposed changes to the legislation do and whether they are necessary for developing broadband or for what the Government want to do. It is not clear to me that the sort of in-principle amendment to the national parks Act that the Government want to carry through will prevent them doing most of what they want to do in the electronic communications code and in the matters they refer to in their consultation document, which I read for the first time this morning.
Clause 8 amends Section 109 of the Communications Act, which is headed, “Restrictions and conditions subject to which code applies”. The Government want to add to Section 109(2),
“the need to promote economic growth in the United Kingdom”,
which is very different from all the others. They are constraints and this is an encouragement, so I am not sure that it belongs here, but I am not arguing about that particular aspect. I do not really mind it being added; the problem is what the Government are doing as a result.
Section 109(2) states:
“In exercising his power to make regulations under this section it shall be the duty of the Secretary of State to have regard to each of the following”,
and subsection (2)(b) refers to,
“the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside”.
As I understand it, that is not being changed and applies to all applications, not just to these special areas. In a sense, the Government will say that that remains. Section 109(2)(da) states that they have to have regard to,
“the need to ensure that restrictions and conditions are objectively justifiable and proportionate to what they are intended to achieve”.
That qualification seems to remain and will allow the broadband position to go ahead.
I am never sure whether I live in a rural area or an urban area, because when I look out of the back window I see the town, and when I look out of the front window I see the countryside. I live in an old industrial village on the edge of the town, and the sooner fast broadband comes, the better, because we are in an area where on Saturday night and Sunday night, when lots of our neighbours are watching movies on broadband, our broadband just closes down completely, so roll it on. I think everybody is of this view, but the question is whether this legislation is necessary to achieve that, particularly in protected areas.
Lord Marlesford
My Lords, I put my name to these amendments for very much the reasons put forward by the noble Lord, Lord Adonis. Clause 8 is really not necessary. I declare an interest as president of the Suffolk Preservation Society. I have some experience in this area, because I did 12 years on the Countryside Commission, under the distinguished chairmanship of the noble Lord, Lord Barber of Tewkesbury, and was lucky enough to get to know the national parks very well during that time. In eight of those years, I was also on the Rural Development Commission under the chairmanship of my noble friend Lord Vinson. One saw then the importance and possibility of combining the conservation and protection of our finest countryside with economic development, which the noble Lord, Lord Cameron, so rightly pointed out.
I have always regarded the planning system and, with it, the creation of the national parks, as one of the two great venerable icons of the Attlee Government—the other, of course, being the National Health Service. Over the years, it has worked extremely well. I have seen at close quarters how it works. Of course, it is necessary to have new technologies, and indeed they are to be welcomed. Indeed, the broadband technologies, which make new forms of economic enterprise possible in remote areas is one of the least intrusive.
There has been a lot of talk about undergrounding, and I have a bit of experience of that, too. I am very keen on undergrounding. For some years, I was a non-executive director of the Eastern Electricity Board, both before it was privatised and for a while afterwards, when it was taken over by Hanson. I persuaded my co-directors to start a scheme for undergrounding wires in designated areas, which worked extremely well. It is not wildly expensive. Of course, the 440 kilovolt pylons are hugely expensive to underground, but the network of wirescaping, which can so badly damage a landscape, is remarkably inexpensive to underground. We did it in some 30 designated conservation areas on the heritage coast. The first one was in my own village, and I was attacked by Paul Foot in Private Eye, on the grounds that I lived in the village, because I had banged on about it for about five years before they did it. But it is a perfectly good scheme to do things such as undergrounding. All this can be done very well under the existing arrangements. Broadband can and will come, and it is crucial that it should do so. However, absolutely no reason that I have heard of or read about justifies the necessity for introducing Clause 8 to give special treatment to broadband.
I do not believe that we should for one instant consider damaging the unique quality and status of these most precious landscapes by weakening control over them. I believe it is unlikely that this Government would seek to do so, but if they were to do so, it is most unlikely that your Lordships’ House would agree to it.
Lord Judd
The noble Lord referred to world heritage. I am sure he will be aware that the Lake District, where I live, is seeking world heritage site status. This will have immense significance for the British economy and for attracting visitors and tourists. Will this process be helped or hindered by these unnecessary provisions in the Bill?
Lord Marlesford
I entirely agree with the noble Lord. I hope that the Lake District gets that status. The noble Lord, Lord Cameron, pointed out that a crucial part of the prosperity of these remote areas is their attraction for tourists. That applies to rural areas generally. As regards protecting the countryside, I could have declared another interest in that for five years I was chairman of CPRE, which tries to protect the countryside. Had we not had the planning laws of 1948 and 1949 and the national parks in place, England and Wales would not be the beautiful places that they are.
Lord Burnett
My Lords, I apologise to the House for missing the opening speech of the noble Lord, Lord Adonis, which I much regret. I spend a good deal of my time in Dartmoor National Park. I live part of the time very near to it and am president of Dartmoor Search and Rescue.
Some years ago a survey was carried out to measure the economic activity within Dartmoor National Park. Before the results were published, I wondered whether the most prevalent aspect of economic activity would be agriculture or tourism. However, the House will be surprised to hear that the greatest proportion of Dartmoor National Park’s gross domestic product came from financial services. Therefore, I understand the importance of broadband. My previous comments on the Bill have supported the promotion of sustainable economic growth. I have openly stated that much of the planning system is sclerotic and immensely time-consuming and expensive.
I do not wish to repeat all the compelling points made by my noble friends Lady Parminter, Lord Renton, Lord Greaves and Lord Marlesford, as well as those made by the noble Lords, Lord Judd and Lord Cameron, who are also my noble friends. We need to foster and promote economic activity everywhere, including within the national parks and areas of outstanding natural beauty. However, we must not jeopardise these uniquely glorious landscapes that have the highest planning protection. Yes, the introduction of broadband is very important, but is this clause necessary to realise this aim? I hope that the Government will rethink the clause. I look forward to hearing the Minister’s comments.
Lord King of Bridgwater
My Lords, I had the privilege of representing for many years Exmoor National Park and the Quantocks AONB. Perhaps I may say to the noble Lord, Lord Adonis, that I am grateful to him for quoting my good friend, Dr Nigel Stone, who is the chief executive of Exmoor National Park.
It has been common ground throughout this debate that everyone here is in favour of two things. Everyone is in favour of helping the rural economy and considers that the rapid expansion of broadband is a vital ingredient in that. The noble Lord, Lord Adonis, set the tone at the start of the debate by making that absolutely clear. It is important to get broadband into the rural economy. We know that the problems in the economies of national parks are not easy. They depend on diversity, and tourism is enormously important. People must be able to ring up, book their bed and breakfast or hotel, communicate and run businesses of all varieties. I have some interesting statistics about the increasing number of SMEs within the national parks made possible by the huge improvement in modern communications.
Everyone is agreed on that and everyone is agreed about the other aspect—we are all here to make sure that we do not damage the national parks. One or two of the speeches were slightly exaggerated—if I may say so, with respect—and suggested that the clause was an undercover attempt to somehow undermine the protection and beauty of the national parks. It is a judgment as to the way in which we proceed, but nobody will discourage anyone’s motives in this—it is very important indeed to protect the beauty, quality and character of our national parks and AONBs.
The point was made by the noble Lord, Lord Cameron, and repeated by my noble friend Lord Marlesford, and I agree that the onus is on the Minister to say why we are here. It is suggested that there are no planning problems or delays—that it is possible to introduce high-quality broadband rapidly within a short timeframe, which is what the whole House wishes to achieve, and that it does not require an upheaval of the planning process. This clause is not the end of civilisation as we know it or the end of the national parks as we know them. That is a judgment that one or two noble Lords have thought to make. The theme that came through in many speeches, including that of the noble Baroness, Lady Parminter, is that there is not necessarily a fear of what the clause does but of whether it is a precedent for other things that might then happen and be the thin end of a wedge that could lead to all sorts of permissions and lack of protection in other areas.
Perhaps I may ask my noble friend about a matter that came up in Committee in the Commons. Am I right in thinking that we are talking entirely about cabinets and overhead wires and that we are not talking at all about masts? That is important. When people first hear about this provision, they think that there will be huge masts rising up on top of the Quantocks, without anyone having a chance to say anything about it. I note that the Minister in the other place made it clear that the Government are insisting on maintaining the statutory duty on people wishing to embark on schemes,
“to consult local authorities on the siting”.—[Official Report, Commons, Growth and Infrastructure Bill Committee, 29/11/12; col. 360.]
That dealt with one aspect of the statutory powers that some people thought might have been lacking. His second point related to the discussions on the code of best siting practice.
I do not think that we will vote on this matter today, but I hope that my noble friend will say something about it because it is important for the Government to give clear reassurance that the objectives that everyone in this House shares—rapid broadband expansion and proper protection of the national parks—can be combined. That is what the Government want to achieve and we want to make sure that they have the best way of achieving it.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I was looking around the Chamber to check that everyone had finished. Many points have been raised and it is important that I try to deal with them.
We have been discussing the consultation paper. Although there was criticism that it was late, I am sure that noble Lords will give me some credit for the fact that I made sure that they were aware of it last night and had copies of it. I apologise that that was rather late for today’s purposes but it was completely missing for the discussions in the other place. At least we have had the opportunity to see it.
Within this group we have several amendments and a clause stand part debate which have not been moved. In the light of the general discussion, it may be helpful if I lay out some of the rationale behind the provision. I think that, as I do so, some of the questions that have been raised will be answered.
As noble Lords know, the Government’s ambition is to have the best superfast broadband network in Europe by 2015. It is a challenging target. It has not been helped by the discussions on state aid, but improving the UK’s communications infrastructure is integral to our ability to grow our economy.
No one wants to destroy, upset or prejudice areas of national beauty—the national parks—and that forms no aspect of what we are trying to do. I understand noble Lords wanting to preserve what we have. I can only say that, as part of the process of ensuring that broadband has a wide distribution, cabinets and wires will be inescapable, but it is how we deal with them that matters.
In order to ensure that the economy can grow all over the country, we need to make sure—
Baroness Miller of Chilthorne Domer
I am sorry to interrupt my noble friend but, before she goes into the detail of her speech, I just want to point out that my noble friend Lady Parminter, in her very broad-ranging and able speech, spoke on the question of the clause standing part, although I understand that in this House we do not say, “I beg to move” at the end of a clause stand part debate.
Baroness Hanham
My Lords, I am grateful for that and I apologise to the noble Baroness for not realising that. However, that gives me greater justification for doing what I am doing, which is to answer immediately what would have been the clause stand part debate. I think that we will all benefit in the end.
The more rural and remote areas, including protected areas, are some of the places where an infrastructure upgrade for broadband is needed the most. Without action, it is likely that these rural and quite remote areas will be left even further behind. I think that noble Lords have acknowledged that people who live in these areas want broadband and that there is a strong rationale for it. There are 700,000 households and businesses in national parks and areas of outstanding natural beauty, and most of these will not be served by the market alone. In England, 25% of premises in these areas currently get less than 2 megabytes per second. We estimate that, in total, potentially 4 million more people and nearly 2 million households could have access to superfast broadband as a result of Clause 8.
Without the rollout of broadband, businesses in these areas would suffer, including those in the tourism service sector, which increasingly find that visitors demand greater connectivity when they come and stay at guest houses, bed and breakfast establishments and hotels, and these businesses are frustrated by the lack of broadband to offer their customers. National parks authorities, along with many other rural areas in England, have cited insufficient broadband provision as a particular barrier to growth.
We are trying to tackle this disparity in the provision of superfast broadband and it is a key priority for the Government. We are spending nearly £700 million to stimulate the market to improve broadband connectivity and we are taking action to ensure that the barriers to deployment are removed. These actions are designed specifically to close the rural-urban broadband divide and promote economic growth. The broadband support package, which the Government announced on 7 September, is key to delivering that.
The consultation paper, Proposed Changes to Siting Requirements for Broadband Cabinets and Overhead Lines to Facilitate the Deployment of Superfast Broadband Networks—succinct as that is—published yesterday by the Secretary of State for Culture, Media and Sport, to whom we have been talking, brings forward proposals for two changes to the Electronic Communications Code (Conditions and Restrictions) Regulations 2003.
Perhaps I can take a few moments to set out what the consultation covers. The consultation’s first proposal is that we remove of the requirement to underground telecommunications apparatus. This is the only restriction that stops communication providers deploying overhead infrastructure. It does not say that they cannot provide underground structures. They can. If they want to share a gully or a trench with some other provider, they can do it in a way that is satisfactory to them. There is nothing to stop that. All this does is to say that it is not a requirement. If you cannot do it for some reason—
Lord Greaves
This is a crucial point. It is clear that they can still put them underground if they wish to, although there will be the removal of the statutory power of the local planning authority, which is usually the national park authority, to require it, and there will be less time for consultation. If I have understood it correctly, the consultation period will be 28 days and not 58 days in future. It would be helpful to have that confirmed. Do the Government have an estimate of the proportion of the lines in, for example, national parks in England and Wales which, in future, would be put underground compared with the present situation?
Baroness Hanham
I cannot answer the noble Lord’s question. He probably does not really expect me to answer it here. The consultation process will begin to throw up some of that information if we do not have it. If we do have the information, I shall see that noble Lords receive it.
The second proposal removes the prior approval requirements for broadband cabinets in protected areas. Of course, the cabinets have to be there, otherwise you cannot have broadband. They have to be at certain spaces and there are all sorts of things about broadband cabinets that require them to be placed in a specific location. We are bringing forward Clause 8 to enable us to make these amendments to the communications code through secondary legislation.
Let me be clear that the removal of prior approval will be temporary, as noble Lords have seen in the consultation which sets out a period of five years. By limiting the window to five years, this will also ensure that the operators have an incentive to get on with the rollout of that business and community need.
Lord Adonis
The noble Baroness said that the requirement for prior approval will be removed. However, she still has not told the Committee how that will accelerate the deployment of superfast broadband, given that there appear to be virtually no cases where the prior approval process has held up the deployment of superfast broadband in the national parks and in areas of outstanding natural beauty.
Baroness Hanham
My Lords, I have about another 15 pages in my brief.
Again, referring to the consultation paper, in the national parks, there are more than 22,000 businesses, of which more than 70% are small and medium-sized enterprises, as noble Lords have said. There are more than 153,000 homes and we know that there is a lot of demand for it. The proposed changes are about creating certainty and reducing the time and cost of deployments. Evidence to date from commercial deployment shows that deployment can be held up by planning decisions. In conservation areas where planning permission is currently required for broadband, there is evidence that it has been held up for 27 months by the need for consultation. This has resulted in the new broadband service not being provided in these areas.
Lord Adonis
The noble Baroness referred to conservation areas but did not cite any evidence in respect of national parks.
Baroness Hanham
My Lords, I was citing the reason for the process in conservation areas taking up to two- and-a-half years. Under the measures on which we are consulting, local authorities will still be involved.
Lord Greaves
As I understand it, there are no proposed changes in this legislation to conservation areas. I declare an interest as living in not one conservation area but two—they overlap. Are there proposals for changes to the rules in conservation areas?
Baroness Hanham
I am citing conservation areas that in many cases are in urban areas and have held up some of these decisions. I accept that we are talking about rural areas. I was asked why some of this was necessary. Part of the reason for the decision is the delays caused by conservation areas.
Lord Greaves
I wonder whether the Minister would write to me on that, as she does not have the answer. I asked a specific question about whether the rules in conservation areas were to be changed.
Baroness Hanham
My Lords, as I understand it, the rules in conservation areas are not to be changed.
Under the measures on which we are consulting, local authorities will still be involved and will have more of an opportunity to put forward their views on the siting of poles and boxes, and on their appearance. The existing regulations require, and will continue to require, consultation with local authorities. In addition, providers will work to a new code of best practice on the siting of infrastructure. This will contain an agreed set of overall principles on sensitive siting, together with specific requirements for consultation with local communities about new overhead line deployment. My noble friend Lord King asked whether these measures were related to fixed broadband. As I said in my Second Reading speech, these measures cover fixed broadband—poles and boxes.
We will outline the main principles of the code of practice by Report, and the code will be agreed before changes are brought into effect by regulations. We expect broadband operators to adhere to the code that they will be involved in drawing up. We believe that the sector should have responsibility for its own code. I can confirm that the English National Park Authorities Association will be invited to join the group that is drafting the code of practice.
Importantly, local authorities will also be able to influence how new broadband services are deployed when procuring projects under the Broadband Delivery UK programme—including, for example, determining whether lines should be run overground or underground. As I said, the underground aspect is not being removed. This will be balanced against how much coverage can be provided.
I turn now to the specific amendments. I do not agree that there is a need to place conditions on the Clause 8 enabling power.
Lord Judd
Before the noble Baroness turns to the amendments, perhaps I may ask her a question. I have great respect for her as a person and a Minister; I know that she very much cares about the qualitative dimensions of British life. On reflection, would it not have been better for the Government to say, “Our objective is to have the most efficient possible economic performance in Britain. We will include the rural areas in this objective. We are determined to have the best possible facilities to service that economic activity. However, we not only want our broadband system to be the best in Europe, we want our areas of outstanding natural beauty, including the national parks, to be the best in the world”? The Government’s purpose is to find a policy that enables both objectives to be reconciled.
Earl Attlee
My Lords, I remind noble Lords that we are in Committee. Noble Lords may speak as many times as they like, but it might be for the convenience of the Committee if we allow the Minister to respond initially to the amendments and then I am sure my noble friend will be delighted to take further questions.
Baroness Hanham
My Lords, I am beginning to feel like a jack-in-the-box. I hope that I do not look like one, but I am beginning to feel like one. The noble Lord, Lord Judd, asked a philosophical if not a practical question. We are where we are. My job is the legislation before us. It is not to proffer a view on that. This is how the Government feel it is necessary to proceed in order to do precisely what the noble Lord said, which is to get broadband across the country as quickly as possible and in the best way possible. As I tried to say as I was going along, the only way that you can get broadband is through masts, lines and boxes, and somehow that has to be dealt with in the best way possible.
Turning to Amendments 59A and 59C, tabled by the noble Lord, Lord Adonis, I do not think that there is a need to place conditions on the Clause 8 enabling power in the way that the noble Lord proposes, and I have referred to the existing consultation requirements in the regulations. That consultation must be considered before further action is taken. The relevant secondary legislation—the Electronic Communications Code (Conditions and Restrictions) Regulations 2003—already includes both general and specific statutory requirements for consultation with planning authorities. This will continue to be the case.
Communications providers will be required to notify local planning authorities about the equipment that they propose to install and where they propose to install it. The regulations will make it clear, as they do currently, that planning authorities will have an opportunity to influence the siting and appearance of that equipment and can put forward objections, as is currently the case. Communications providers will be required to make changes, if they are reasonable.
Communications providers are under a strong incentive to ensure that they follow the statutory requirements for consultation with local planning authorities. If they do not, this would be considered a breach of the permitted development rights under which they install their equipment and could lead to planning enforcement action.
The noble Baroness, Lady Whitaker, called for the regulations to be subject to the affirmative procedure rather than the negative procedure as is currently the case. The requirements for consultation with local planning authorities that we propose to introduce for protected areas are not new. They are already well established and work well for non-designated areas. I am confident that they can work well in protected areas with the co-operation of communications providers and local planning authorities alike. At present, I do not see the need for the affirmative procedure. This is not new. It is not novel: it is how things have happened in the past.
The noble Lord, Lord Adonis, also proposed Amendment 59B. As I said at Second Reading, we are unable to draft legislation in such a way that is specific to broadband infrastructure. I explained then that this is because of Article 8(1) of the Framework Directive 2002/21/EC, which requires technology neutrality so far as the primary implementing legislation is concerned.
We can, though, be specific in secondary legislation. As I made clear at Second Reading and make clear again today, and as our consultation also makes clear, our proposed changes relate to broadband cabinets and overhead lines—in other words fixed broadband technology. As I said, that cannot be done in primary legislation. It will be done in secondary legislation.
The amendment also suggests that specifying consultation with local authorities on changes to secondary legislation is necessary. Consultation with local authority interests already happens under the existing provisions of the Communications Act 2003. Section 109(4) provides that before making regulations, the Secretary of State must consult Ofcom and any other persons as she considers appropriate. As I mentioned earlier, a large proportion of the existing regulations consists of the requirements for consultation with and notification to highway and planning authorities; this will not change, and of course we are now consulting on our proposed approach. The Local Government Association and others such as the national park authorities will want to make their views clear on the proposed planning changes.
My noble friend Lord Greaves has proposed Amendments 59D to 59H. These would remove what we believe are necessary subsections to ensure that other legislation relating to protected areas is amended so as to be consistent with the Secretary of State’s powers in Section 109 of the Communications Act. If we remove them, Clause 8 would not deliver the result the Government are seeking to achieve. It would also risk creating great uncertainty and inconsistency in the law. My noble friend Lady Parminter raised this with us at a meeting we held yesterday. We explained to her then that this was the way we had to deal with the matter legally, and although it may seem rather cumbersome, it is essential. I have heard nothing to change my mind since our discussion, but I did undertake that we would consider the reasons why. I also understand the intention of my noble friend Lord Greaves and I want to reassure him that the amended legislation will continue to make it explicit that the Secretary of State shall have regard to the need to conserve the natural beauty of the countryside when making regulations in relation to the Electronic Communications Code.
As with the relaxation of prior approval in protected areas for cabinets and poles, these subsections also only apply for a period of five years, which I hope gives some comfort to noble Lords. The provision of broadband to business and communities across the country is vital to ensure that we have growth. We want to see the economy grow right across the country.
I have spoken at some length regarding the existing and proposed consultation requirements that will be necessary through the secondary legislation that Clause 8 will enable. Perhaps I may go over those requirements again. Communications providers will still be required to consult with local authorities on the siting of infrastructure and to take on board any reasonable objections, which is the current situation. The proposed code of best practice for the siting of infrastructure will contain an agreed set of overall principles for siting, as well as specific arrangements for consultation with communities on new overhead wires. Local authorities will be able to influence how services are deployed in their area in consultation with their supplier when procuring under the Broadband Delivery UK programme. There is a great deal of scope for local authorities to influence what is going on, and it seems to me that broadband providers are going to find it much easier to get their work done if they co-operate and co-ordinate their activities with local authorities to ensure that between them there is a sensitive recognition of the environment.
As a side issue, I was asked about advertising on boxes, an issue that has been the cause of a lot of concern. Advertisements are not permitted unless specifically approved by the local authority. Permission has to be sought to do that. My noble friend Lady Parminter asked about the siting of equipment. A number of statutory requirements are set out in the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 which are aimed at ensuring that the amount of electronic communications apparatus and its impact on visual amenity is kept to a minimum, and these provisions will remain unchanged. The relevant provisions are in the general conditions, under Regulations 3(1)(b), 3(3)(a) and 3(4). Regulation 3(1)(b) requires communications providers to,
“consult … planning authorities in relation to the installation of electronic communications apparatus, including installation in a local nature reserve”.
Under Regulation 3(3)(a), communications providers,
“when installing any electronic communications apparatus, shall, so far as reasonably practicable, minimise … the impact on the visual amenity of properties, in particular buildings on the statutory list of buildings”.
Under Regulation 3(4) they,
“where practicable, shall share the use of electronic communications apparatus”.
There is nothing in this legislation to change any of that.
I hope that I have dealt with more or less everything that has been said. If not, I am sure that somebody will remind me and ask me again. I hope, with those explanations, that the noble Lord will withdraw his amendment.
Lord Adonis
My Lords, we are very grateful to the noble Baroness for giving us so much detail as to how the reformed regime will work. However, I cannot help but observe that she spoke for 27 minutes but did not give us a single shred of evidence as to why the existing planning regime is halting or delaying the rollout of superfast broadband to the national parks or to areas of outstanding natural beauty. I will ask a direct question: does she have any evidence that she would like to share with the Committee as to how the current planning regime is delaying the rollout of superfast broadband in the national parks or in areas of outstanding natural beauty?
Baroness Hanham
My Lords, first, we need some speed to get this done. As the noble Lord will know, so far there has been very little deployment of broadband in areas of natural beauty and it is estimated that 85% of premises will not be reached by the market unless we can speed things up. This is at least a contribution to speeding up the provision of broadband in the rural areas where, at the moment, it is not very significant.
Lord Adonis
My Lords, that does not meet the point at all. The evidence which the national parks have given to noble Lords shows that 97% of several hundred applications—I think 292 have been made under the pre-notification procedure—have been agreed by the national parks authorities. I am sorry to keep putting this to the noble Baroness but it is a fairly fundamental issue. There has been a large number of applications, and we obviously want a great deal more so that we have a great deal more rollout of superfast broadband in the national parks and areas of outstanding natural beauty. However, almost all those that have been brought forward have been agreed. Does the noble Baroness have any evidence at all that there are cases which the Committee should take into consideration where the planning authorities themselves have been slowing down a rollout of broadband that would otherwise have taken place?
Lord Jenkin of Roding
Before my noble friend responds to that, I wonder whether the noble Lord, Lord Adonis, has taken account of the paragraph in the impact assessment which says:
“We have received reports where multiple sites have had to be surveyed and prior approval applications submitted, only for agreement still not to be reached, and delays in some cases of up to two years. Examples have been provided by BT based on their experience of rolling out broadband over the last two years with delays ranging from 12-27 months”.
It seems to me that that is really quite a serious bar on broadband in these areas
Lord Adonis
My Lords, I am not sure whether the noble Lord was present for my opening speech, but I pointed out that national parks authorities are not aware that any of those cases raised by BT apply to national parks or areas of outstanding natural beauty. The Government say airily that they have received reports but will not actually publish anything. The noble Lord, like me, has been a Secretary of State in the past. It is one thing to declare airily that you have received reports but it is another thing actually to give chapter and verse. No chapter and verse whatever has been given in this debate that there is a real issue that would justify a very major change in the law of the kind that the Government are proposing.
Lord King of Bridgwater
Is there not a serious point in what the noble Lord, Lord Jenkin, has just read out? The noble Lord, Lord Adonis, has quite correctly said that there has now got to be a large expansion of broadband into the rural areas. What the noble Lord, Lord Jenkin, has cited is the experience so far of trying to introduce broadband more widely. Maybe my noble friend is thinking that it is a precautionary principle—that the Government are giving top priority to the expansion of broadband. I think that the point that I tried to make in my comments, that it is important if we are coming back to this on Report that we have a clearer answer on these points about the risks that may arise.
The Earl of Lytton
I apologise to the Committee for intervening now; I thought that I would intervene earlier but felt that it had been discussed. I want to try to disassemble something here. The Royal Institution of Chartered Surveyors, of which I am a member, recently looked into this question of the operation of the telecommunications code. One of the things that became apparent was that the code has been an exceedingly clunky means of dealing with difficulties and disputes because it has to be dealt with through the county court. One of the things that the institution was particularly keen to air—and perhaps I should have done so earlier—was that this process really needs to be dealt with. I would have invited the Minister then, and maybe I still can, to say whether it is correct that the Law Commission is looking into this whole business to try to find a better and more streamlined way of dealing with that particular process. I do not know whether British Telecom, or whoever it may happen to be, is concerned about the whole process, or specifically concerned about planning, or whether within that it is concerned about national parks, or whether it is actually the telecommunication code that is a common denominator for all planning authorities. If the Minister cannot respond to that now, perhaps it could be explored at some juncture.
Baroness Hanham
My Lords, I am grateful to the noble Earl. I will make sure that that is considered and give him an answer before next time—as I will with the other matters raised before Report.
Lord Adonis
My Lords, it is always good to try to be constructive. Given the scale of the concern that has been expressed in the Committee and the noble Baroness’s good intentions—as always—to seek to meet legitimate concerns which have been raised, I wonder whether she and the Planning Minister, Nick Boles, would agree to meet the chief executives of the national parks authorities before Report? They could discuss this matter directly and go into the specific issue of how superfast broadband can be rolled out more swiftly and effectively while seeking to preserve the landscape and not subvert the existing planning system.
Baroness Hanham
My Lords, the noble Lord knows that I am always happy to have meetings that are relevant to the legislation. Let me look into what would be sensible and the best way of setting up such meetings before Report. I give him an undertaking that I will do that.
Lord Adonis
I very much welcome that commitment from the noble Baroness. I hope that Mr Boles will also be present at the meeting and that we can make some good progress so that when this matter comes back on Report we do not have to have the same debate yet again.
Baroness Parminter
Perhaps I may ask the Minister to address an issue that was not fully responded to in her reply—an issue which was raised by a number of Peers, including the noble Lords, Lord Adonis and Lord Cameron, and myself, namely the issue of statutory guidance. The Minister said that the Government expect the operators to abide by the code. For those of us who are concerned about this issue, we feel that it should be a statutory code. Bearing in mind the fact that the final siting will be at the discretion of the operators and that the operators have the ability to deploy new infrastructure if they believe that there is still merit in doing so, can the Minister confirm whether the Government intend for the code of practice to be statutory or voluntary?
Baroness Hanham
My Lords, I apologise for overlooking that. The proposal is that the code should not be statutory. It should be a code of guidance but not backed up by statute.
Lord Greaves
My Lords, perhaps I could ask again: if everything goes well with a particular proposal and notification, is the difference in timing between the present system and what is proposed just 28 days as it seems to be? In other words, does the 56-day prior approval system disappear but the 28-day period still exist for the local planning authority to comment? Can the Minister say, either now or perhaps in writing, what will happen and what is available to people, particularly the local planning authority, under the proposed new system if there is a difference of view that cannot be resolved? If a proposal is put forward and the planning authority has comments—not necessarily on whether the proposal should be there at all but on the two key issues of siting and appearance—and if that dispute between the local planning authority and the broadband provider cannot be resolved, does the provider simply go ahead and do it or is there some other procedure? I am a bit mystified about where the county court comes in but perhaps everybody else understands that.
We have been told that the number of such cases that have been refused is very few indeed—it is a handful. But the fact that there was a handful means that there will be some cases where the local planning authority believes that what is being proposed is unacceptable. So under those circumstances will it be possible now for the proposal to go through?
Finally, with regard to the issue I was talking about before, Section 11A of the National Parks and Access to the Countryside Act is a general section that refers to everything. We are told that subsection (2) has to be put aside for this specific purpose because when the decisions are being made or the Secretary of State is issuing guidance and regulations under the Electronic Communications Act, if the national parks Act provision remains, there will not be a level playing field and the different considerations that the Secretary of State has to take into account will not be given equal weighting. Since Section 11A of the national parks Act is a general provision on everything that happens in national parks that authorities have to take account of, surely that is the case with all sorts of other things as well, yet all this other legislation that it must apply to—all these other powers of the Secretary of State and other authorities—does not appear to be invalidated by this section of the national parks Act. This is a fairly esoteric legal point but it would be very helpful to have clear legal guidance from the Government as to why they think this particular provision is necessary.
Baroness Hanham
My Lords, with regard to the latter point made by the noble Lord, Lord Greaves, this was a discussion that we had last night with the noble Baroness, Lady Parminter, and I said earlier that the strong legal advice is that it has to be done in the way that has been proposed at the moment. I said that I was happy to go back and have that checked but I expected that I would come back with exactly the same outcome because that is the legal process, but I am happy to give that undertaking to come back on it.
If all else failed and the providers could not get anywhere with the local authority and the planning committee, ultimately, yes, they could go ahead and provide the facilities where they need to. We do not expect that to happen. The whole purpose of this legislation is to ensure that there is good consultation and a clear understanding of where broadband is going to be placed, and that it should be done as quickly as possible so that we can move on.
Operators will have to adhere to the code. They are going to be involved in drawing it up, and we believe that they should have responsibility for their own code. I am sure that if we did not think that was going to happen properly we might consider taking a backstop power to ensure that the code is placed on a statutory footing, but I would like to come back to that on Report.
Lord Judd
The Minister said that she was willing to consult, which is encouraging. Can she say a little bit about the thinking that has gone on in government about any requirements for such installations to be removed as soon as advances in the technology make them superfluous?
Baroness Hanham
My Lords, I am sure that that is worthy of an amendment on Report. I am sure that they will be expected to be removed, but I take the noble Lord’s point that sometimes these things are put up and are not then pulled down. However, it is not part of this legislation; I will find out whether consideration has been given to that; and I will find out what the precedents are, because we have got boxes all over the place for cables and all the rest of it, some of which are not used again.
Lord Adonis
My Lords, on the basis that the Minister is content to meet the chief executives of the national park authorities before Report—
Baroness Hanham
I am content to meet their representatives. If we confine ourselves to chief executives, they may not be able to come in time, but I will certainly meet the organisations.
Lord Adonis
On that basis, my Lords, after an hour and 48 minutes, I beg leave to withdraw the amendment.
Baroness Whitaker
“( ) The Secretary of State must by regulations introduce statutory guidance on how statutory undertakers will consult local planning authorities, and these regulations will be subject to the affirmative procedure.”
Baroness Whitaker
On the basis of the discussion of consultation, I shall not move the amendment.
Lord Jenkin of Roding
“Extension of economic development powers to councils
In the Localism Act 2011, after section 16 insert—
“16A Duty to report on proposals for the extension of devolved economic development powers to all local councils
(1) Within one year of second round of bespoke “city deals” being completed, the Secretary of State must lay before Parliament a report setting out the government proposals, policies and timescales for the extension of devolved economic development powers to all local councils.
(2) The report must, in particular, fully set out—
(a) the case for making the “core package” of devolved powers achieved in the second round of bespoke “city deals” available to all councils to help boost growth; and(b) the time-scales over which those proposals and policies are expected to take effect.(3) Where the Secretary of State has determined it not appropriate to extend devolutionary powers to all local councils, the report must, in particular, fully set out—
(a) why this has been determined as not appropriate;(b) include a resolution that sets out how the government intends to review this determination; and(c) the review of this determination must be laid before Parliament not later than one year following the laying of the original report.””
Lord Jenkin of Roding
With the agreement of my noble friend Lord Tope, in whose name the amendment has been tabled, I wish to move Amendment 60. The amendment is also in my name and that of the noble Lord, Lord McKenzie.
The amendment returns us, as I am sure the Minister recognises, to localism. She will remember that when we were debating the Localism Bill, as it then was, two years ago, we made considerable progress in persuading the Government to go for a greater degree of localism than had originally been in that Bill. At the same time, I did not seek to conceal my disappointment that it had not gone further. There is huge scope for increasing the decentralisation of power and decision-making from central government to local areas and local people.
Since then, there have been a number of developments. I start with the remarkable report prepared by my noble friend Lord Heseltine, No Stone Unturned in Pursuit of Growth. I told my noble friend that I did not agree with everything in that report, but I applauded the emphasis which he laid—indeed, in an entire chapter—on the need for achieving greater localism.
That chapter is Chapter 2, Building on our Strengths. I cannot begin to quote the whole of that chapter, and the Committee, I think, would become singularly impatient if I did, but I want to quote just two sentences. Paragraph 2.14 states:
“For the UK to face up to the challenge of increasing international competition, we must reverse the long trend to centralism. Every place is unique. Local leaders are best placed to understand the opportunities and obstacles to growth in their own communities”.
That is highly relevant to the Bill.
In paragraph 2.22, after reciting a considerable number of measures that the Government have taken—they cover two pages of the report—my noble friend goes on to say:
“We need to go further and faster to achieve an essential rebalancing of central and local power and resources, extending not just to cities, but to local areas right across England”.
I thoroughly endorse that. As my noble friend will recognise, that is what the amendment is all about.
Another development is that in December 2011, the Government announced their intention,
“to develop tailored deals with our core cities, devolving powers and supporting projects which will boost growth and jobs for the long term”.
That was widely applauded. It has been followed up vigorously by the relatively small number of cities to which it extends. The question is: why should it stop with the cities? The new city deals recognise that local leaders, rather than Whitehall departments, are best placed to understand the economic opportunities and challenges that they face and that they have a key role to play in shaping incentives and conditions for private sector success.
There is also a case for mainstreaming the devolved powers achieved in the early city deals as part of a general mainstreaming programme making those powers available to all councils to help them to boost growth. The wave 2 cities will receive a core package of devolved powers as part of their deal. I submit that the case for extending that more widely is becoming very strong.
I am told by the Local Government Association, which of course has followed that up with much enthusiasm, and has conducted seminars and conferences to seek the views of its members on it, including a seminar with the Centre for Cities on 19 December last year, that it is now receiving many expressions of interest from other cities, towns—and, indeed, not only single local authorities but groups of local authorities—which would like encouragement to develop similar negotiated deals with central Government to give them the additional powers and resources necessary for them to develop the economy in their area.
Another aspect is that when we were passing the Localism Act, the local enterprise partnerships were still very rudimentary. They had only recently been announced; they did not at that stage cover the whole country; some of them were taking longer than others to get off the ground; and they did not have significant financial resources behind them. Those are partnerships led by employers. I have always been firmly of the view that the most effective encouragement to employment, growth, and all the rest of it comes from employers rather than from central government. The Government can facilitate, encourage and provide a framework but, in the end, it is local authorities, individuals and businesses which can make it happen on the ground.
We have not only the strong recommendations of the report of my noble friend Lord Heseltine; we now have the growing experience of the city deals, which are proving very satisfactory and popular and are producing results, and the now well established local enterprise partnerships set up over the greater part of the country, which are beginning to work well. The Government have recognised that by allocating more finance to them. I very much welcome that.
The missing link is that local authorities, apart from the big cities, do not have the same power to negotiate deals with central government that would allow them to have the same opportunities and encouragement to develop their economies and provide jobs and growth in their areas. They know their areas best. We should be prepared to do that; I hope that my noble friends on the Front Bench agree.
We are not seeking by the amendment an immediate commitment for that to happen. Clearly, there needs to be study and further consideration of how, where and when that would best be done. Our amendment would add a new clause to the Localism Act entitled:
“Duty to report on proposals for the extension of devolved economic development powers to all local councils”.
The first subsection states:
“Within one year of second round of bespoke ‘city deals’ being completed”—
that is very wise, because it gives a chance to assess the experience of city deals without charging ahead too rapidly—
“the Secretary of State must lay before Parliament a report setting out the government proposals, policies and timescales for the extension of devolved economic development powers to all local councils”.
Then the amendment suggests what should be in the report. Subsection (3) states:
“Where the Secretary of State has determined it not appropriate to extend devolutionary powers to all local councils … The report must, in particular, fully set out—
(a) why this has been determined as not appropriate;
(b) include a resolution that sets out how the government intends to review this determination”.
Then the review of the determination must be laid before Parliament within a year.
That is asking the Government to take this forward positively as a further means of spreading the localism—which is the Government’s policy and has been declared to be and has rightly been at the centre of their attitude to local government—but gives them time to ensure that it would really work if extended across the country.
The amendment is reasonable. It builds on what is there already. It reflects the important chapter in my noble friend’s report, No Stone Unturned, and it fits well with the general thrust of the Government’s policy of increasing localism. I hope that my noble friends will feel able to smile on the amendment. I do not say for one moment that the wording is right, but I hope for some encouragement. Then we can return either with a government amendment or something that takes account of what Ministers have said. I beg to move.
Lord McKenzie of Luton
My Lords, I have added my name to the amendment, which we enthusiastically support. We should thank the noble Lord, Lord Jenkin, for moving it so comprehensively in the absence of the noble Lord, Lord Tope. Too often, we hear the mantra of devolving power but see the reverse: power and decision-making moving to the centre, from schools policy to planning.
We should acknowledge the progress being made on devolving powers to some areas, building on the achievements of multi-area agreements. Following the deal on the first eight cities, the Government are encouraging bids from a further 20, as the noble Lord, Lord Jenkin, said.
Perhaps I may remind noble Lords of what was involved for some in the first tranche. Nottingham City Council would be given powers to create a venture capital fund to invest in high-tech business, start-ups and growth businesses. I think that for Newcastle, Sheffield and Nottingham the deal has been backed by tax increment finance schemes. A control over part of central government’s skills budgets will be given to Sheffield, while Bristol, Leeds, Newcastle and Nottingham will join Manchester in creating apprenticeship hubs. That is just a flavour of what has been achieved from those first few city deals.
Lord Shipley
My Lords, in speaking to this amendment I first declare that I am a vice-president of the Local Government Association and, as your Lordships know, a government adviser on cities policy. This amendment would extend the city deals structure, potentially to all councils, and it would be a practical manifestation of what we passed in the Localism Act. I welcome that. The aim of this amendment is to boost economic growth, based on the core package for wave 2 cities. As the noble Lord, Lord McKenzie, explained there will be a confirmation, I think within a few weeks, of those wave 2 cities. However, the core package will be derived from the experience of those in wave one. I expect that that announcement will be made during March; I certainly hope it will be before Easter.
The amendment would mainstream the core package of the city deals. When the Deputy Prime Minister launched the wave two process at the end of October, he said that,
“while it’s too early to talk exactly about what a third Wave might look like, I very much see this”—
wave two—
“as a step in a journey”.
I have concluded that the door is ajar and that this amendment may well represent a means of providing it with a gentle push, for all the reasons that my noble friend Lord Jenkin outlined. There is a very clear base of evidence that if you localise, decentralise and devolve, you will actually drive faster economic growth if you provide local councils and their local enterprise partnerships with the statutory means of delivering that economic growth.
I have one caveat. Councils will need to show governance structures demonstrating their stability, their ability to manage risk and their ability to pool thinking and resources with their local enterprise partnerships and neighbouring councils so that driving growth in an area is seen as a collaborative process rather than a competitive one. I am particularly impressed by the governance structure that is in place in Greater Manchester, where the combined authority—enabled under legislation from 2009—provides a model that could be built on in other parts of the country.
Finally, on timing, if wave 2 city deal announcements are made later in 2013, this amendment will be implemented some time around the summer or autumn of 2014. As my noble friend Lord Jenkin said, this gives the Government an opportunity to consult and think further—but then to come forward with a means whereby the powers that are being given to a number of cities will actually be available to all of local government.
Lord Smith of Leigh
My Lords, I must follow the noble Lord’s compliments to Greater Manchester by speaking at this point. I need to declare my interests, which I repeat from Second Reading, particularly to mention that I am the chair of the Greater Manchester Combined Authority. I therefore support this amendment, which gets to the heart of the Bill’s Title—it is what the Bill should be about.
I took part in the negotiations with the Government over the city deal. It was a very interesting process. Obviously, we developed ideas on our own and in conjunction. The noble Lord, Lord Jenkin, is absolutely right that it needs to involve not just local authorities but the local business community. It takes a very special skill for many businesspeople to rise above their day-to-day work to have that comprehension of local economic policy, but in Greater Manchester we are fortunate to have many people who can do that. We rely on them and other partners such as universities, which are very important, too. On the key partners, we need to remind the Government that this is not a financial issue for local authorities. We are actually asking for devolution—not necessarily for more money but to have the money spent at a local level, where many of us believe it will be spent more effectively. In some cases, no money is involved at all; it simply gives us permission to do what we currently have to do.
The city deals work. They can harness the strengths of local partners and build on local knowledge, and they can be addressed to the local circumstances. I am sure that the city deal for Greater Manchester is different from the city deal for Newcastle, because the issues are clearly different. We will have some similar issues. No doubt skills are a very important part but, for us, transport was a key issue. As the noble Lord, Lord Jenkin, rightly said, this amendment mirrors the report of the noble Lord, Lord Heseltine. It is really beginning to address this point about freedom. At a meeting of the Greater Manchester Combined Authority on Friday, we were pleased that we were beginning directly to fund local businesses to take on new workers and expand, so the measure is working practically on the ground. It is not a theoretical thing, and I will be very glad to see the rolled-out programme.
Like the noble Lord, Lord Shipley, I am a bit concerned about the wording of the amendment because I would not like every local authority to have to have its own deal with the Government. That is not what the spirit of this measure is about. What we did very carefully in Greater Manchester was to think about the functional economics. What is an economic area that makes sense? As important and lovely as the great city of Manchester is, its geography is a very odd shape. It is very long and thin. It is not a functioning economic area. The centre of Manchester and the centre of Salford are very close together, so we need to go over local authority boundaries. I hope that in passing some version of this amendment, we can encourage local authorities to be co-operative, as the noble Lord, Lord Shipley, said, to work together to think about what is in the interests of their communities and to make sure that we start to deliver what all noble Lords want, which is more growth, more employment and more opportunities in the country.
Lord Greaves
My Lords, I am pleased to follow the noble Lord, Lord Smith of Leigh, because outside Greater London, Greater Manchester is probably the best example of a classic city region in this country. City regions suddenly became all the rage a few years ago under the Labour Government, and they are perhaps making a bit of a comeback now.
The problem is that when people get new ideas, they tend to regard them as a template that applies everywhere. There is no doubt that city regions can be very powerful places in democracy and growth, but the geography of this country is not the same everywhere. Even within England, there are places which it is difficult sensibly to allocate to a city region. The temptation is for people to look at the model and try to impose it everywhere, instead of asking about the geography of this country, which is very different in different places, and about the appropriate model given the geography of a region or sub-region.
A classic example is the towns of west Cumbria—Barrow, Whitehaven and Workington—and their local authorities, Allerdale, Copeland and Barrow. It is very difficult to say which city region they can be part of. Newcastle upon Tyne might have imperialist designs on them and pretend they are part of it, but they are clearly not, and they are equally clearly not part of the Greater Manchester city region, Merseyside or whatever. They are different. The largest places in those areas, including Carlisle, are smaller than the largest places in west Yorkshire or Greater Manchester, obviously, so the system that is used ought to take account of the geography of those areas. That is not to say that they should not have the kind of powers which are set out in this amendment, the powers that existing city deals have, which will, I hope, go on to get more; it is to say that central government has to get out of the mindset of trying to fit everybody into the same size bottle and accept powers have to be devolved to some smaller places because that is the nature of the economic geography and the economic regions in those areas.
It will not surprise noble Lords to learn that I think that east Lancashire is another area, not quite as extreme an example as west Cumbria, that is very difficult to fit sensibly into any particular city region. If we were forced into a big city region, it would be Greater Manchester, but we would always be peripheral and far too far out. Despite the wishes of some people in Preston, it is very difficult to claim that Lancashire is in any way geographically a city region with Blackpool out on the coast, Blackburn and Burnley, former county boroughs, further inland, Lancaster further to the north and then all the other places.
If this is going to be successful, it has to be accepted that it is not just the major metropolitan centres, such as Manchester, Leeds and Newcastle, and smaller but equally important ones such as Norwich, that are going to be the engines of growth in this country. They are probably the main engines of growth because of geographical factors, but the rest of the country needs a fair deal as well, and we do not want to be looking forward to a country where some areas are growing: the south-east and Greater London, obviously, but also those cities that have been remarkably successful in recent years, of which Leeds and Manchester are perhaps the leading examples. Those of us who live out in the sticks need a decent standard of life, a decent level of growth and a decent level of local services, just the same as everywhere else.
My final point is that it is more difficult institutionally where there is two-tier local government. In some areas, the districts are not important. District councils vary hugely across the country. There are some areas where shire districts are not really important within the economic development sphere, never have been and are never going to be. Some of them are quite weak rural authorities in that sense. There are other areas where they are the motors of economic development and the places were inspiration, motivation, ideas and people from the public sector and the private sector come from. I suggest that west Cumbria and east Lancashire are classic examples of this there the county councils traditionally have not had a very strong economic development role.
Lord Beecham
My Lords, on behalf of the city of Newcastle, I disavow any territorial ambitions in relation to Cumbria, even though we are connected by the Roman wall, part of which runs through and, indeed, is visible in the ward I represent.
I am the fifth consecutive former council leader to address the Committee this afternoon. It was in that capacity that I first made the acquaintance of the noble Lord, Lord Jenkin, some 30 years ago when he chaired the inner city partnership in Newcastle. At that time, a number of authorities had such a partnership chaired by a senior Minister, and the noble Lord, Lord Jenkin, was chairman of the Newcastle inner city partnership. I recall rather amusing him by referring to the city action teams that were created in those days as “feral cats”. He might remember the phrase. We worked well together, as did other inner city partnerships. It was a process initiated by Peter Shore in the Callaghan Government of the late 1970s.
Lord Jenkin of Roding
I ought to put on record—I do not think that the noble Lord will disagree—that there were some areas that found that extremely difficult. I need only mention Liverpool.
Lord Beecham
Liverpool was in many minds at that time. The noble Lord and I perhaps shared a view about Liverpool, but we were not alone in that.
The principle of looking across government departments and local authority functions embodied in a small way in those arrangements was returned to under the previous Government with the concept of Total Place. As I think I have said before in debates in your Lordships’ House, that has, I believe, been rebranded as community budgets, but it is consistently compatible with the thrust of the Government’s policy on city deals and the thrust of the amendments, which, of course, I support. The noble Lord, Lord Jenkin, was quite right to refer to the powers and resources that are required to invigorate local economies. That involves, by definition, a wide range of public organisations, including government departments. One thinks of BIS, the Department for Transport, the Department for Work and Pensions, the Department for Education, the DCLG, Defra and the Department of Energy and Climate Change. All potentially have a role to play with not only their policies but sometimes with their resources in individual areas. I hope that the Government can look at reinforcing the concept of the city deal by connecting it to the concept of community budgeting or Total Place, so that one looks at the sum of government-directed public expenditure in an area and sees how it can fit into and be applied to the issues of economic growth and regeneration.
Of course, the city deals that have been announced are welcome. Newcastle has benefited; I think that the figure is roughly £80 million. Liverpool got a little more at £110 million. That is not necessarily cash coming from the Government. It is the value of some of the freedoms that have been given, including, for example, tax-increment financing. Tax-increment financing is the permission effectively to borrow against the anticipated business rate income, which will generated by development. It has been deployed effectively for some years in the United States. There is reason to hope that it will help us here.
It is not, then, a question of the Government passing resources to the local authority, but of borrowing. Useful and impressive though those schemes and those amounts of money to invest will be, however derived, they have to be contrasted with the loss of financial resources to the very same authorities as a result of the local government finance settlement, exceeding on an annual basis in the cases of both Liverpool and Newcastle—and perhaps the others, I cannot say for certain—the value of the city deal and its financial implications. That is ultimately money taken out of the local economy, which is likely to have a deleterious effect on that local economy, employment and business. It is a curious inconsistency, which the Government have to address. They have to align their local government finance policies with the ambitions, which we share in local government, across the parties, of the city deal programme.
Finally, I entirely agree with the noble Lord, Lord Shipley, and my noble friend Lord Smith on the need for local authorities to co-operate and not to be seen to be competing with one another, at least in the same sort of area. There will no doubt be competition —healthy, I hope—between different parts of the country, offering different attractions for investment from within this country or overseas; that is a healthy process. However, it would be a great mistake if, within regions—or, to use the current governmental phrase, sub-national areas—there were to be cut-throat competition between more-or-less neighbouring authorities.
It was striking in those dark days of the 1980s—which the noble Lord, Lord Jenkin, did his best to brighten in Newcastle—that the region of the north-east came together in two ways. First, it came together—I have to say, at my suggestion—to create a Northern Regional Councils Association, which included Cumbria in those days, as it rather looked to the east than to the south. It also came together to facilitate the hugely important Nissan development in Sunderland. There was no competition between authorities as to who should get that. We came together and worked with business in the region and the Government of the day on behalf of the region as a whole. It is effectively a functional economic area, to use the jargon. That spirit of co-operation certainly needs to be driven, and I hope that the Government will incentivise it as these proposals go forward. I hope that—with the slightly cautionary words of the noble Lord, Lord Greaves, about not conferring significant powers and functions on unviably small groups of authorities on their own terms, with which I agree—
Have I misunderstood the noble Lord?
Lord Greaves
My Lords, that was not my point at all. My point is that people who live in big cities think that these places are functionally unviable because they are smaller than where they come from. My point is that they are not necessary functionally unviable just because they are smaller. They are big towns, small cities and areas with an urban nucleus which can actually do the job themselves, even though their population might be only 500,000 rather than 8 million.
Lord Beecham
I agree with that. What would be a concern would be the individual smallish councils in an area each seeking a separate agreement. It is the point about co-operation, which I thought the noble Lord was advancing, that I seek to emphasise and I assume the Government would accept.
Again, will the Minister indicate in replying whether the Government will look at the connection between the city deal programme and community budgeting or Total Place, and whether these things need to be linked? If that needs to be discussed further during the course of the Bill—I do not expect an immediate response—perhaps we can have some discussions about that before we get to Report stage.
Lord Ahmad of Wimbledon
My Lords, I first thank all noble Lords who have participated in this debate. I noted that my noble friend Lord Jenkin’s final words in moving the amendment were, “I hope my noble friends on the Front Bench smile” at his proposal. I assure him that whenever he makes a contribution I often smile, because I often agree with what he says. In what he said, there is nothing specific with which I can disagree. I think it would be generally accepted by the Committee that all contributions across the Chamber were supportive of the initiatives that are being taken.
I was particularly delighted to hear the noble Lord, Lord McKenzie, agreeing with my honourable friend in the other place, Greg Clark. What can I say? Détente has broken out. I am glad that we agree on these issues. When we have these debates, it is important that things which are working across the board are acknowledged as doing so. I do not think for a moment that we are where we want to be with the city deals. This is an evolving issue. We are clearly seeing the trialling of city deals, as has been acknowledged by many noble Lords.
Look at the first wave of the cities listed outside London: Liverpool, Manchester, Bristol, Birmingham, Nottingham, Newcastle, Leeds and Sheffield; I feel a bit like a train announcer here.
Lord Ahmad of Wimbledon
I am glad that the city deal has. I was concerned by the suggestion of the noble Lord, Lord Greaves, about the expansion of areas and Manchester connecting with Newcastle. As a Liverpool fan, for football reasons alone, that is something that we would want to park.
Coming to noble Lords’ points, I first reassure your Lordships on where we are on city deals. As the noble Lord, Lord Greaves, said, it is not a one-size-fits-all proposal. City deals are about bespoke solutions unlocking local growth and trialling different and innovative approaches. Perhaps it would not be appropriate for every single trial to be rolled out wholesale to every single council across the country. That said, the Government have a strong record of commitment to the localist agenda and are working directly with local authorities to provide the powers and support that they need. Where local models and city models make sense, I say to my noble friend Lord Jenkin that we will seek to make them more widely available.
On what we have already done with local authorities, we have given them greater control over their own budgets. First, an estimated 70% of income will be raised locally, compared to 50% to 60% under the current formula grant system. Secondly, from next April, councils will retain nearly £11 billion of business rates. Thirdly, the Government intend to devolve a greater proportion of future growth-related spending, based on the recommendations to which many noble Lords have alluded, as detailed in my noble friend Lord Heseltine’s recent, excellent review. My noble friend Lord Jenkin quoted my noble friend Lord Heseltine. We agree with him that local leaders and businesses are best placed to set the strategic direction of the area. He made a powerful case for increased devolution, and the Government agree with that.
Local people and businesses are better placed to take greater economic powers from central government, particularly in terms of funding and responsibilities, as the LEPs have. They can act as a stronger voice for local people, incorporating the local private sector. As several noble Lords have acknowledged, we have allocated funding. The Chancellor announced an additional £250,000 of capacity on top of the £625,000 core funding announced in September. So steps have already been taken, and I am pleased that noble Lords have acknowledged that.
Lord Jenkin of Roding
I think that my noble friend did indeed smile. He has given us a very fair and encouraging report, and I entirely take the point with which he finished, that there will be a full response to the report of my noble friend Lord Heseltine. There was one point on which I disagreed with my noble friend Lord Heseltine, when he suggested that local authority structures should be reviewed and they should become single-tier authorities. I told him that I did not agree with that, and the Government have made it perfectly clear that they do not agree.
I warmly support what has been said about the need for co-operation. When we debated the Localism Bill—my noble friend Lady Hanham will remember this—there was a good deal of scepticism about the Government’s wish that local authorities should co-operate. The fact of the matter is that two years later one can point to any number of examples where local authorities are co-operating admirably. That is a far better way than to embark on a major restructuring, which would be unrealistic.
I shall not comment in detail on everybody who has spoken. I am extremely grateful for the amount of support that we have received. I mention two points. The noble Lord, Lord Beecham, mentioned the achievement of the Nissan investment. That was very much a collaborative exercise; I was the Secretary of State for Industry who in the end persuaded Nissan to come here. We were negotiating as well with Honda, which eventually went to Swindon. I composed what my Japanese friends were kind enough to say was a sort of haiku: “We get fonder and fonder of Honda, but the kissing with Nissan is missing”. In the end, the kissing was everywhere; we got them both.
That was a very good example of local authorities co-operating. My noble friend Lord Greaves mentioned the West Cumbria authorities: Allerdale, Copeland and West Cumbria. I had been led to believe—with considerable optimism, I hope—that the decision will be announced that the idea of a nuclear repository within that territory, on terms that will need to be finally agreed, is welcomed. We had a three-month delay on this. But the co-operation of the county council and those two district councils has, to my mind, been an admirable example of how local authorities can work together in the national interest.
I thank my noble friend Lord Ahmad for his very encouraging response and beg leave to withdraw the amendment.
Lord Shipley
“Planning permission required for development
(1) Section 57 of the Town and Country Planning Act 1990 (planning permission required for development) is amended as follows.
(2) Subsection (3), after “Where by a development order (or a local development order)” insert “issued by the local planning authority.”
(3) After subsection (3), insert—
“(3A) Where a local planning authority propose to make an order under this section they shall first prepare—
(a) a draft of the order; and(b) a statement of their reasons for making the order.(3B) The statement of reasons shall contain—
(a) a description of the development which the order would permit; and(b) a plan or statement identifying the land to which the order would relate.(3C) Where a local planning authority have prepared a draft local development order, they shall consult, in accordance with regulations, persons whose interests they consider would be affected by the order.”.”
Lord Shipley
In moving Amendment 60A, I shall also speak to Amendments 60B and 60C, as well as Amendments 71 and 71A. I present the apologies of the noble Lord, Lord Tope, who is unavoidably away today. Amendment 71A, in the name of the noble Lord, Lord McKenzie, is in practice virtually the same as Amendment 60A in our name, but the grammar in his is better than the grammar in ours.
Amendment 60A would allow local authorities to set their own permitted development rights. It is a logical extension of the Localism Act, because what is and is not permitted development should be decided locally. The current system allows central government to set out permitted development rights and provide local authorities with limited mechanisms to amend this. We noted the debate in your Lordships’ House on Monday about free schools and the powers of government over permitted development rights, and the limited powers that local authorities can sometimes have. We shall debate that issue further, but allowing permitted development to be managed by a local authority at a local level would mean that individual local issues and differences such as between rural and urban, suburban and city and town centres could be considered.
I accept that the proposal is a significant change to the planning system, and there may be concerns about that both from professionals and from the Government. Any change would need to be accompanied by robust consultation before commencement, but there is a principle behind this that permitted development should be decided at a local level.
Amendment 60B would remove the need for the Secretary of State to give approval for local development orders. Local authorities can currently restrict or extend permitted development rights via the use of an article for direction or a local development order. That can be important when, for example, a council could better support local economic growth. But the procedures that have to be followed are complicated and time-consuming and rarely used by local authorities. I have been concerned by the length of time that it can take to get a conclusion to a consultation on an Article 4 direction from the beginning of the consultation. Removing the need for the Secretary of State to give approval for each and every local development order as it is implemented across the country would make the procedures quicker and more effective.
Amendment 60C would remove the need for an individual annual report on all local development orders. I question whether those annual reports are necessary. If there was a problem with the local development order, I think it is inevitable that councillors and planning officers would know about that. However, Schedule 4A to the Town and Country Planning Act 1990 states that an annual report must be produced detailing,
“the extent to which the local development order is achieving its purposes”.
The schedule also states:
“The Secretary of State may prescribe the form and content of the report”.
This is very centralist, and I think that the provision could be safely removed from the statute book in order to speed up the process of extending and relaxing rights better to support growth. At a time of constraint in local authority staffing and planning departments, it would also free up considerable local authority resource and time. As I said a moment ago, councillors and planning officers will know whether a local development order is not working properly.
In the absence of the noble Lords, Lord True and Lord Tope, both of whom are unavoidably unable to be here, I wish to comment on Amendment 71. This amendment would offer local discretion on permitted development reforms. As I am sure my noble friend the Minister knows, there is great concern about this. The amendment would offer councils the local choice of whether or not to introduce the permitted development changes which the Government are seeking to introduce. It is not clear to me, and has not been throughout the process, why the Government want to do this. It is supposedly to have a positive impact on growth. It is not clear to me how the Government’s proposals would have a positive impact on growth. I have concluded that permitted development rules should not be changed by Whitehall, since such a move cannot take account of significant local differences. As I said a moment ago, city centres, suburbs, town centres, urban areas and rural areas may all have different requirements, and councils are best placed locally to make these judgments. This is a very important issue, and there is a very important principle at stake. If we believe in localism, surely we should permit a planning authority to have local discretion on permitted development schemes. I beg to move.
Lord Beecham
My Lords, I strongly support these amendments. It seems contrary to the whole thrust of the Localism Act that central government should impose its decision on what are absolutely fundamentally local matters, and do so in such a way as effectively to preclude the local council from taking decisions of this kind in consultation with its residents. For example, it would be interesting to know how many extensions are being built under the dispensation given by the Government. I should think that on the whole that would be more likely to engender conflict between neighbours than lead to any significant development of extended housing in urban areas.
In addition to that, we had the recent announcement, which I referred to in the Chamber a few days ago, of the Government’s decision to grant permitted development status to the conversion of office premises into residential premises. This has provoked a good deal of concern up and down the country, not least within a couple of miles of this place. I do not know whether it has succeeded, but I understood that the City of London was endeavouring to negotiate an opt-out, as it were, from this provision. That seems to be a fashionable thing to do these days.
I do not know whether the Minister can tell us what has happened with that, but can she explain why the Government deem it necessary to override local authorities? Councils can, of course, give this permission if an application is made, and indeed if it is refused it may be appealed, but why should the Government take this decision, effectively on behalf of every local authority in the country, and see that it applies willy-nilly? What is the rationale for that? Where is the evidence that it will lead to the satisfactory development everywhere of housing of an adequate standard, particularly affordable housing of an adequate standard? I recognise, of course, that in certain places that could be the outcome, but why should that decision not be made by those responsible for their local community?
Lord McKenzie of Luton
My Lords, as the noble Lord, Lord Shipley, pointed out, Amendment 71A in this group, which stands in my name, is to all intents and purposes identical to the amendment that he moved and which stands in his name and that of the noble Lord, Lord Tope. It is also identical to the amendment moved in another place by my honourable friend Roberta Blackman-Woods.
The thrust of the amendment is to reverse the current arrangements whereby permitted development is determined at the centre but with local authorities having the right to restrict or extend permitted development rights by an Article 4 direction or a local development order. It would anchor the process of permitted development rights at the local level with full obligations to prepare a draft order for consultation. The Minister will doubtless argue, as was argued in the Commons, that the powers available under Article 4 or a local development order are sufficient to secure that the decision of the centre can be modified in the local context. However, the LGA briefing—the noble Lord, Lord Shipley, endorsed this—makes clear that these approaches are heavily bureaucratic, time-consuming and resource-intensive. If the Minister does not accept that case, I would be grateful if she would provide the evidence to the contrary. Accordingly, the briefing suggests that these approaches are rarely used. As I say, if this is challenged by the Government, will they supply evidence demonstrating that these approaches are used?
I have also added my name to Amendment 71 in the names of the noble Lords, Lord True and Lord Tope. This is a narrower amendment and requires that a new or amended development order that grants planning permission for development within the curtilage of a dwelling house should have approval from the local planning authority before being applicable.
My noble friend Lord Beecham has clearly argued the case for supporting the amendment and said why the Government’s position is inappropriate. The noble Lord, Lord True, has spoken previously about concerns in his local borough regarding developments in gardens and the challenges that this poses to the local community. Alarm bells were certainly set ringing by the November 2012 technical consultation on extended permitted development rights for home owners and businesses. Its proposals included doubling the size limits for single-storey domestic extensions, although for a limited period. Will the Minister let us know what is happening with that consultation, when we might expect the Government’s response, and whether, in advance of that response, we might at least have an understanding of the direction in which it is travelling?
Amendment 60B in the names of the noble Lords, Lord Tope and Lord Shipley, seeks to remove the requirement for the Secretary of State to approve all local development orders. We agree with this, but could this not also be addressed by secondary legislation? Is primary legislation required to do that?
On Amendment 60C, will the Minister please remind us what happens to the reports that are made under Section 35 of the Planning and Compulsory Purchase Act 2004? The amendment seeks to remove the requirement for those reports. What happens to the reports that are made and how do the Government deal with them? Is there any process by which the results of that are reported to Parliament?
Baroness Hanham
My Lords, that was rather a quick ending. I am grateful for this short debate, which I thought might take a bit longer.
The amendment tabled by my noble friends Lord Tope and Lord Shipley, and Amendment 71A in the name of the noble Lord, Lord McKenzie, have the admirable aim of giving local authorities the power to decide how to adapt nationally set permitted development rights to their own local circumstances. I am pleased to say that that power is already there. Where local authorities have concerns about the impact of permitted development rights locally, they are able to consult their local communities on removing those rights via Article 4 directions. I know that my noble friend Lord Shipley said that that process is complicated, but it is really up to local authorities how complicated it is and how long it takes. It is in a local authority’s hands; it has to consult for 28 days, but after that it can decide whether to confirm an Article 4 direction. Because there are concerns regarding potential compensation issues, local authorities can, if they give 12 months’ notice that they are going to consult on an Article 4 direction, always manage to avoid compensation requirements.
Where the aim is to extend permitted development rights locally, local development orders provide a quick and simple way to do this. After a slow start, the number of local development orders being put in place across the country is increasing. Local authorities are recognising the benefits of this flexible provision, which can be put in place through a simple and streamlined procedure. More than 30 local development orders have now been put in place in enterprise zones, and local development orders are contributing to growth by helping to speed up everything from small domestic alterations to major industrial development. Rather than being a cumbersome process, as suggested, local development orders work quite well.
Amendments 60B and 60C, tabled by the noble Lords, Lord Tope and Lord Shipley, are intended to make the local development order process even more straightforward. The amendments seek to remove the Secretary of State’s role in the local development order process and remove the requirement for local authorities to report on local development orders, with the aim of reducing burdens further. The Secretary of State only exceptionally exercises his powers to intervene in local development orders. In many cases, local authorities can proceed to adoption within a few days of submitting local development orders to the Secretary of State. However, that does not mean that we should not constantly be seeking to improve and simplify the processes under which development takes place.
Officials have already begun discussions with the Local Government Association with the aim of learning from the experience of local authorities about the best way of using local development orders. That experience is growing rapidly, and it is important to capture it in deciding whether and how local development orders can be improved, including in the ways that my noble friends have suggested. Given my assurance that local development orders are a perfectly reasonable way forward, I hope that my noble friends are willing to withdraw or not move these amendments. I have also given an explanation of how the Article 4 direction plays, or could play, a particularly big role in the control by local authorities.
I turn now to Amendment 71, tabled by my noble friends Lord True and Lord Tope—I am sorry they are unable to be here—and the noble Lord, Lord McKenzie, who has spoken to it. I appreciate the noble Lords’ wish to make sure that local authorities are able to take their particular circumstances into account when considering the operation of national permitted development rights. This is indeed a vital safeguard, because nationally determined rights will of course have different effects in different local areas. As I have already outlined, local authorities have this power now through the use of Article 4 directions, which they can implement themselves. However, I remind noble Lords that every time permitted development rights are removed, local people are deprived of the benefits that they offer and become subject again to the additional work and costs of putting in a planning application.
Extending development rights will reduce the bureaucracy and delays that home owners face when they want to carry out what remain, even with these revised proposals, small extensions. That applies to businesses also. This amendment would deny people those benefits on a much wider scale. It would fundamentally undermine the well established and popular system of permitted development rights, which allows home owners the freedom and flexibility to make the best use of their homes without getting bogged down in red tape. However, I hear noble Lords’ concerns and I am sure that we will return to this issue at a later stage, when perhaps other noble Lords who tabled amendments in the group are here.
The noble Lord, Lord McKenzie, asked about the consultation. It ended on 24 December and is being considered at the moment. I hope that we will have some indication of the response in due course. There is no fixed date for the announcement of the response, but I hope, given my explanations, that noble Lords will withdraw or not move their amendments.
Lord Greaves
My Lords, the Minister used the word “small” in reference to extensions. Does she understand and agree that what is or is not small depends to some extent on the size of the existing house and, particularly if it is an extension into a back yard, the existing size of that back yard?
Baroness Hanham
My Lords, I appreciate that proposals and applications for extensions will always be different because it will depend on the nature of the property—for example, whether it is terraced or detached. Permitted development rights are being removed for small-scale and reasonably small-scale developments.
Lord Shipley
My Lords, I thank the Minister for her detailed reply. She may be right to say that there will be a desire to return to some of these concerns on Report. For the moment, I beg leave to withdraw the amendment.
Lord Greaves
“Notification of Parish Councils
(1) After section 261 of the Town and Country Planning Act 1990 insert—
“261A Notification of parish councils
(1) Where an order is made under this Part by any authority or person for the stopping up, diversion or creation of any highway, the extinguishment of any rights over a highway, or for any work in relation to a highway, a copy of the order shall be sent to each parish council that the highway crosses or serves.
(2) “Highway” in this section includes a footpath, bridleway or other right of way.”
(2) After section 129F of the Highways Act 1980 insert—
“129FA Notification of parish councils
Where an order is made under this Part by any authority or person for the stopping up, diversion or creation of any highway, of the extinguishment of any rights over a highway, or for any work in relation to a highway, a copy of the order shall be sent to each parish council that the highway crosses or serves.” (3) In section 15 of the Commons Act 2006 (registration of greens) after subsection (9) insert—
“(9A) Where an application is made under this section to register land as a town or village green, a notice of the application must be sent to any parish council whose area includes the land that is the subject of the application or any part thereof.””
Lord Greaves
My Lords, the amendment would add a new clause after Clause 12, headed “Notification of Parish Councils”. I apologise that the amendment was circulated a day late but it took me some time to track down the bits of legislation that I need to amend. The genesis of this came from the National Association of Local Councils, which knew what it wanted to do but relied on me to find out how to do it.
The amendment is about three different matters which are conveniently lumped together. It would amend parts of different Acts to make sure that when certain proposals or orders are made by what I might call higher authorities, parish councils are notified. The amendment goes no further than saying that they have to be notified but, clearly, notification is the first stage in reaching a view and perhaps putting it forward.
The amendment follows the procedure on planning applications whereby parish and town councils have, under the Town and Country Planning Act 1990, the right to be notified about planning applications. The first provision amends that Act and would secure that when,
“an order is made … by any authority or person for the stopping up, diversion or creation of any highway, the extinguishment of any rights over a highway, or for any work in relation to a highway, a copy of the order shall be sent to each parish council that the highway crosses or serves”.
The second part would make a similar amendment to the Highways Act 1980. The wording is very similar but, in practice, it refers to rights of way orders. It really refers to lower-order highways—bridleways, footpaths and similar routes. The third part refers to Section 15 of the Commons Act 2006 concerning the registration of greens, and we will be moving on to that shortly. This part of the amendment would make a provision that, where an application is made to register land as a town or village green—that is, the beginning of the registration process—the parish council that includes the green or part of it should be informed.
So far as concerns the second part of the amendment, I am aware that the practice guidance notes on rights of way orders—that is, in relation to footpaths, bridleways and so on—issued by the Rights of Way Review Committee, include consultation with various local bodies, including parish councils. However, I am informed by the NALC that that does not always happen and it would much prefer to have such a requirement in primary legislation. With regard to both the other matters, I am informed that they have caused difficulties for parish councils over the years and that these fairly simple provisions would make life a lot easier for them. I beg to move.
Lord McKenzie of Luton
My Lords, I look forward to the Minister’s reply but, on the face of it, these amendments seem entirely sensible.
Lord Ahmad of Wimbledon
My Lords, I absolutely agree with my noble friend that it is very important that parish councils are notified of the making of any legal orders affecting rights of way and other highways serving or crossing a parish and indeed of any town and village green applications relating to land within the parish. It may be helpful to the Committee if I set out how the process works to ensure that this is the case.
First, as regards rights of way creation, diversion and extinguishment orders, paragraph 1(2)(b)(ii) of Schedule 14 to the Town and Country Planning Act 1990 and paragraph 1(3)(b)(ii) of Schedule 6 to the Highways Act 1980 require the order-making authority to serve notice on,
“every council, the council of every parish or community and the parish meeting of every parish not having a separate parish council, being a council, parish or community whose area includes”,
any land affected by a rights of way order.
As regards orders for stopping up or diverting highways for the purposes of development—that is, Section 247/248 orders—Section 252 of the Town and Country Planning Act 1990 requires that, before making an order, notice be served on the local authority in the area of the proposed stopping up or diversion of a highway. Therefore, the notice of a stopping up or diversion is served on the parish council in whose area the development lies.
For town and village green applications, existing regulations require notification of Section 15 applications to parish councils. Specifically, the Commons Registration (England) Regulations 2008, which apply to registration authority areas in England in respect of which the registration provisions in Part 1 of the 2006 Act have been commenced—known as “pioneer areas”—and the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007, which apply to other authority areas in England, require notification of such applications to parish councils.
Schedule 14 to the Town and Country Planning Act 1990 and Schedule 6 to the Highways Act 1980 require that, before a rights of way creation, diversion or extinguishment order is confirmed by either the Secretary of State or the order-making authority, notice shall be given in the prescribed form: first,
“stating the general effect of the order and that it has been made and is about to be submitted for confirmation or to be confirmed as an unopposed order”;
secondly,
“naming a place in the area in which the land to which the order relates is situated where a copy of the order and of the map referred to therein may be inspected free of charge … at all reasonable hours”;
and, thirdly,
“specifying the time (which shall not be less than 28 days from the date of the first publication of the notice) within which, and the manner in which, representations or objections with respect to the order may be made”.
The notices shall be given, among others, to,
“every council, the council of every parish or community and the parish meeting of every parish not having a separate parish council, being a council, parish or community whose area includes”,
any of the land to which the order relates.
The Commons Registration (England) Regulations 2008, which apply in the pioneer authority areas that I mentioned earlier, require, in Regulation 22(1)(a), an applicant to serve a notice of any application to a registration authority under Part 1 of the Act,
“on each of the persons specified in Schedule 6”.
Schedule 6, as it applies to Section 15 applications, requires the notice to be served on any local authority other than the registration authority in whose area the land in question lies. “Local authority”, as defined in Regulation 2 of the 2008 regulations, includes a parish council and the chairman of a parish meeting.
Finally, the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007, which apply to the non-pioneer authority areas, require, in Regulation 5, a registration authority to send notice of an application in the prescribed form to every “concerned authority”. In this case, “concerned authority” is defined in Regulation 2(2) as,
“a local authority … in whose area any part of the land affected by the application lies”.
“Local authority”, as defined in Regulation 2, includes a parish council.
I believe that what I have illustrated answers my noble friend’s questions. With those assurances and the details that I have provided, I hope that he will be happy to withdraw his amendment.
The Earl of Lytton
My Lords, I declare interests as the president of the National Association of Local Councils and as chairman of the Rights of Way Review Committee. If there is a failure to give the relevant notification to a parish council, will any sanction or redress be available to the parish council? I realise that the Minister may not be in a position to answer that question straight away.
Lord Ahmad of Wimbledon
My Lords, I am sure that there are instances where that is the case. For completeness, it may be appropriate if I write to the noble Earl on that specific point. However, I assume that appeals procedures are available to parish councils to take forward where orders are not adhered to.
Lord Greaves
My Lords, I thank the Minister for his reply and should be grateful to receive a copy of his letter to the noble Earl. It may be that what is now required is for the NALC to circulate to its member councils the fact that there is a need and a requirement for them to start to demand their rights from higher authorities. However, I am very grateful for the Minister’s care in setting out the details and, on that basis, I beg leave to withdraw the amendment.
Lord Greaves
“(a) ”
Lord Greaves
My Lords, I shall speak also to Amendments 62 and 63. This group also contains a couple of amendments in the name of the noble Lord, Lord McKenzie. I shall refer to them in passing, although I shall wait for him to speak to them.
Clauses 13, 14 and 15 take us on to a new area in the Bill: the registration of town and village greens. These clauses refer to Section 15 of the Commons Act 2006, and some of us have fond memories of the passage of that legislation through your Lordships’ House.
Clause 13 inserts new Sections 15A and 15B into the Commons Act. Section 15 refers to the registration of town and village greens which exist—or which people claim exist—but which are not yet registered. It sets out the procedure for registration and that takes place through the commons registration regulations by commons registration authorities, which are local authorities in two-tier areas—now county councils.
Before we can understand any of these amendments or clauses we need to understand town and village greens and their registration. They are areas of land that may or may not be registered—most of them are now registered—in the commons register, and they confer on local people the right to informal recreation on that land. They are also open spaces. That common law right was codified in the Commons Registration Act 1965 and again in the Commons Act 2006.
Clause 13 brings in a new right for a landowner to bring to an end a period in which people have had rights to take part in informal recreation on that land. A piece of land can be registered as a town or village green under certain conditions: first, if people have used it for 20 years—usually continuously, but, basically, for 20 years; and secondly, if they have used it for lawful sports and pastimes—in other words, informal recreation—as of right as opposed to by right. That sounds legalistic and obscure but “as of right” means that they have not been stopped from using it; they have not used force; they have not used it secretly, having sneaked on there at two o’clock in the morning and kicked a ball about and left before anyone saw them; and they have not had permission. All those matters are crucial. If the owner of the land gives people permission by putting a sign up saying, “Ball games allowed”, that negates the ability to register it as a green. It is an ancient right and it is closely prescribed by those requirements.
If a piece of land has been used in that way without any of those conditions applying for 20 years or more, it can be registered as a green. It is very important to understand that if that happens, it is not being created as a green; it is simply recognising the legal fact that, under the old common law and under the Commons Act, where it has been codified, it is a green. It is a matter of fact. It is quite different from planning permission, which is a matter of saying, “Given the circumstances of that land and given all the planning laws and regulations, is it a good idea for that planning permission to be given?”. For example, it is very different from a designation as a piece of new green space under the new designation in the NPPF, where it is a matter of opinion as to whether that is a good idea or not. Either it is a green or it is not a green. That is why the process of registration often seems fairly bureaucratic, legalistic and long-winded.
Within the 20-year period, an owner can simply prevent the area ever being registered as a green by stopping people or by giving permission to people, whichever he wants to do. Clause 13 brings in a new right for a landowner to bring to an end the possibility of it being registered as a green—in other words, to bring to an end the period in which lawful pastimes can take place on it—by making a statement to a commons registration authority. In future, even if it has been used for more than 20 years or since the 15th century, it cannot be registered as a green.
Lord McKenzie of Luton
My Lords, we have Amendments 63A and 63B in this group. I should start by thanking the noble Lord, Lord Greaves, for his knowledgeable exposition on these issues. I was told by one of his colleagues that he is the world expert on these matters, as he has demonstrated.
By way of background, Clauses 13 and 14 mirror the approach taken in so much of the Bill. This issue is largely subject to anecdote, so the Government have taken the opportunity to address it in legislation in an unacceptably tough manner. Let me be clear: we reject the opportunity to use town and village green provisions to thwart development which is unwanted by some. However, we equally reject legislation that would, in large measure, make it difficult to establish such a provision in the future. Our approach is not to seek a deletion of these clauses but to amend them in an attempt to get a better balance.
Amendments 63A and 63B address the issue of the publicity that must be given to a statement under Clause 13. As the noble Lord explained, the statement is that which a landowner can deposit with a registration authority to bring to an end any period during which persons have indulged as of right in lawful sport and pastimes on the land. The knowledge of cessation of use is important because it is the trigger to the two-year window in which a person can seek to register the land as a green. Without that knowledge there is the prospect that the two years will elapse and the chance to register will be lost.
Amendment 63A inserts “must” rather than “may”—an issue that perhaps we do not need to dwell on extensively. However, Amendment 63B requires regulations concerning publicity to be inserted into the Bill. On that basis, we have broadly common cause with the noble Lord, Lord Greaves, on these amendments. His proposition about the nature of the publicity is more detailed and possibly more appropriate, but we seek to achieve the same thing by our amendments.
Baroness Young of Old Scone
My Lords, I support this group of amendments on a very important issue. I will make a perhaps slightly illegitimate point, because I probably do support the removal of the two clauses, which I consider unnecessary. I apologise to the Committee for the fact that I will not be here for the debate on whether the clauses should stand part, so I will say that were I to be here I would support the proposition that they should not.
The amendments in this group are particularly important if the clauses remain—in particular the need to publicise and notify those whose interests could otherwise be removed surreptitiously, without them realising that that had been done. However, it is important to say—as the noble Lord, Lord McKenzie, said—that these two clauses typify the Bill in that the number of applications for town and village greens has considerably reduced and is very small compared with the number of planning applications that are approved every year. Therefore, we must challenge considerably whether primary legislation is necessary. It is quite a large sledgehammer to crack a nut that probably does not exist—or, if it does, exists in very small proportions.
Baroness Hanham
My Lords, in responding to the noble Lords, Lord Greaves and Lord McKenzie, it may be helpful if I briefly set out why we are reforming the system for registering town and village greens. This explanation will take us through to the next group of amendments. In short, the reforms are needed to prevent the greens registration scheme being used to stop or delay planned development decided through the democratically accountable planning system. The changes will also protect the ability of local communities to promote or support development in their areas through consultation and decision-taking on planning applications and local and neighbourhood plans. Another aim is to reduce the financial burden on local authorities in considering green applications, and the costs to landowners whose land is affected by these applications.
Clause 13 inserts new Section 15A into the Commons Act 2006 which allows a landowner in England to deposit a statement and map with the commons registration authority, the effect of which is to bring to an end any period of use “as of right” for lawful sports and pastimes on that land. The noble Lord, Lord Greaves, very expertly went through what lies behind this clause. I will briefly say that under the current system, if landowners want to protect their land from town or village green registration, they may erect fences and/or notices to physically prevent access to the land. However, the courts have ruled that even taking such steps does not necessarily bring to an end any use “as of right”, in particular where fences or notices are not maintained in the event of damage or removal. Clause 13 will allow landowners to achieve the aim of ending use “as of right” through the submission of a statement. We hope that this reform will encourage landowners to allow recreational use of their land, safe in the knowledge that they can prevent the registration of their land as a green. That will then be of benefit to those who use the land, as well as to landowners.
The noble Lord, Lord Greaves, tabled Amendments 61, 62 and 63. As he explained, their intention is to ensure that, where a landowner makes a statement, notice is given to local people and other interested parties so that they are aware that the clock is ticking on the time that is available for making a town or village green application. Amendments 63A and 63B, tabled by the noble Lord, Lord McKenzie, would require that publicising the deposit of a statement should be mandatory.
In line with the statements made by the honourable Member for Sevenoaks in the other place, I offer the Committee the reassurance that we intend that, where a landowner statement is deposited with a commons registration authority, the authority will be required to publicise it. This will ensure that local people and other interested parties are made aware of the fact that a statement has been deposited. We intend to use the power to make regulations, set out in subsection (6) of new Section 15A, to make publication of the statement one of the steps that an authority must take when the statement has been deposited.
It is our view that the specific publicity requirements are best set out in regulations; it is not necessary to include such detail in the Bill. However, my officials will draw up those regulations in close consultation with key interested parties, including the Open Spaces Society and the Association of Commons Registration Authorities. The regulations will require that commons registration authorities take appropriate steps to ensure that local people and other interested parties are made aware of the fact that a landowner statement has been deposited.
Amendment 63 would ensure that a landowner statement under this clause cannot be made until regulations prescribing the detail of the process under subsection (6) have come into effect. However, there is already provision for Clause 13 and those regulations to come into effect at the same time. The commencement provisions in Clause 31 provide that the Government can commence Clause 13 at an appointed time, and I reassure the Committee that the reason that the clause will be commenced in this way rather than on a set date is to ensure that these provisions are not commenced until regulations are finalised. I hope that, with those reassurances, noble Lords will not press their amendments.
Lord Greaves
My Lords, I am grateful for that detailed response and for the Minister’s comments. I am also grateful to her for referring to Amendment 63, which I forgot to speak to. I thought that I had spoken long enough—and I am sure that the Committee did, too. That is my excuse, anyway. What the Minister said is exactly what my amendment would do, so I am very happy not to press it.
On the publishing of information when a statement is deposited with a commons registration authority, I think that the Minister’s response fitted the bill and that her assurance was okay. We will look at the regulations when they come out and, if they do not say what the Minister has just said, she will have to explain why—but I am sure that they will.
The only point I will make is that it is very important that the publishing of the fact that a statement has been made should be sufficiently local. Some commons registration authorities are big unitary authorities such as Northumberland or Cornwall, or big counties such as North Yorkshire or Lancashire. Simply publishing statements centrally or on a website will not get to the people who are using a piece of land in a village or town. It is very important that publication is sufficiently local so that somebody will pick it up and pass it on. With that comment, I am pleased to beg leave to withdraw the amendment.