Growth and Infrastructure Bill
17:34 - Division on Amendment 39B. - Ayes: 176 / Noes: 241 - Amendment 39B disagreed.
Baroness Whitaker
“( ) Any changes to the electronic communications code shall relate only to broadband infrastructure.”
Baroness Whitaker
My Lords, I declare my interest as president of the South Downs Society. Amendment 35A is in my name and that of the noble Lord, Lord Renton, who very much regrets that he is not able to get away from snowy Sussex today. The amendment would ensure that the stated intention of Clause 8, to facilitate the rollout of broadband in the national parks, does only that. Mobile phone masts would not be allowed; nor would any different economic purpose of any future Secretary of State be permitted. The Minister has explained, in a very helpful meeting held with her officials, that it is difficult to put this restriction in the Bill and that regulations will make it quite clear that only broadband is in mind. However, I think we need to debate this openly and see the text of the regulations before we accept the very wide power that is on the face of the Bill to install equipment in some of our most cherished and beautiful landscapes. Who knows what some future Secretary of State might want to do?
In Committee, we debated very thoroughly the danger to our national parks, briefed then, as now, by a wide range of organisations representing planning and the countryside, as well as by the Sunday Telegraph a couple of days ago. I do not propose to rehearse the arguments again, but I remind noble Lords that those concerns were shared all round your Lordships’ House. Nobody disputes the importance of broadband in rural areas or wants to impede it in any way. Equally, nobody was able to produce any evidence of difficulty which broadband operators had with any national park, and there were several examples of successful co-operation. Nor was any evidence of or anticipation of trouble given by BT when representatives kindly came to talk to us recently.
In short, there is no need for extensive powers, and the narrower the power, the better. We should be very careful about any precedent-setting power which could imperil the landscapes which parliamentarians before us fought to defend in the National Parks and Access to the Countryside Act 1949. Those landscapes are unique and they are vulnerable. I beg to move.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, as the noble Baroness has explained, the amendment has been tabled to prevent Clause 8 from being used to relax planning requirements for mobile masts. We discussed it extensively in Committee. If that is the intention of the amendment, I fear that it does not have the desired effect; nor would any amendment along these lines. I shall explain why.
At every stage of the Bill’s passage, we have made it clear that Clause 8 was brought forward to enable us to make changes to secondary legislation in relation to fixed broadband infrastructure, not mobile. Further to those reassurances in both Houses of Parliament, as noble Lords will be aware, we published a consultation on 29 January on the proposed changes to secondary legislation that Clause 8 will enable. That consultation also made it clear that the changes in Clause 8 relate only to fixed broadband infrastructure—cabinets and poles. As has been made clear previously in this House and in the other place, it is not possible to limit the scope of the clause to a particular infrastructure or technology. Clause 8 can make no distinction between fixed or mobile infrastructure, because Article 8(1) of the framework directive 2002/21/EC requires technology neutrality.
That is not to say that different technologies or infrastructures all have to be treated the same. They can be treated differently where it is objectively justifiable and proportionate, but that is done at the level of secondary rather than primary legislation. For example, the relative visual impact of different types of communications apparatus is sufficient to justify a differing treatment in planning terms.
As I mentioned, the amendment does not achieve the desired effect. Use of the term “broadband infrastructure” could equally apply to mobile infrastructure, such as mobile masts which provide 3G or 4G mobile services. They would also qualify as broadband infrastructure.
We could not limit the scope of any changes to broadband infrastructure, as that would prevent changes being made to narrowband infrastructure, which might impact on the delivery of narrowband voice services, which would include the 999 service. I am sure that the noble Baroness would not want that.
I can only reiterate that the distinction between fixed and mobile will be delivered through secondary legislation, through regulations which I think are already out to consultation. This measure will be introduced to provide certainty and will be an additional deployment option to enable superfast broadband to be rolled out in the more commercially challenging parts of the UK. As the noble Baroness said, these areas have people’s hearts in them and they do not like to think that they will be changed. I hope the noble Baroness will understand that there is no intention to try to prevaricate in any way or to try to introduce mobile by this clause. It is limited by the secondary legislation but because of the necessity under the EU regulations we have to do it this way. I hope that the noble Baroness will feel able to withdraw her amendment.
Lord Adonis
My Lords, I thank the noble Baroness for the very great care and attention she has taken in meeting representatives of the national parks and other interested parties and also meeting noble Lords to discuss this issue. It is a model of how a Minister should handle these conversations and I compliment her. In the notes that the noble Baroness circulated to us of the meeting with the national parks representatives, the record of the meeting says that the Minister from the DCMS, Ed Vaizey, gave an undertaking that the drafting of the code of practice would be a collaborative exercise. Can she put on record for the benefit of those who wish to collaborate that the Government will indeed be consulting them, intensively and extensively, as this code of practice is drawn up?
Baroness Hanham
My Lords, I am sure the noble Lord has seen from the other amendments that are coming up that we will be discussing the code of practice on probably the next amendment or the one after. At that stage I believe that I will be able to give the noble Lord the assurances he seeks.
Baroness Whitaker
My Lords, I echo the thanks of my noble friend Lord Adonis for the very detailed explanation by the noble Baroness, who was very helpful to the many organisations which share my concerns. I am also grateful for her specific explanation of the role of the framework directive as this will now be in Hansard and will be official. That also will be helpful. Her remarks on the consultation on the regulations are reassuring and, if I may, I will have another look at the Government’s text. In the mean time I beg leave to withdraw the amendment.
Baroness Parminter
Baroness Parminter
My Lords, Clause 8 as it stood would have set an extremely damaging precedent, removing key protections from our most cherished landscapes. My Amendment 36 sought to address that issue, enabling changes in secondary legislation to speed up the delivery of broadband in rural areas but not removing key protections against changing the long-standing duties in national parks and areas of outstanding natural beauty.
As I made clear in Committee, I can see the argument for adding a further consideration to the Communications Act 2003 for the Secretary of State to have regard to promoting economic growth at the same time as other existing duties, which is what Clause 8(1) proposes. However, the disapplication of the duty to have regard to conserving beauty in other pieces of legislation would be a very disproportionate approach. Clearly the Government do not feel that my amendment gave quite the certainty that they thought they needed, while not undermining key protections for those landscapes. They have therefore drafted their own amendment, which in this group, and with the leave of the House I should like to make a few comments on it.
The Government’s Amendment 36A equates the “have regard” duty to proposed Section 109(2B) of the Communications Act 2003, so that the Secretary of State will be treated as automatically having complied with the “have regard” duties if they have complied with Section 109(2B). It means that the primary legislation in place since 1949 protecting our iconic landscapes remains unchanged. I am extremely grateful to the Government and in particular to the Minister, who has gone well beyond the bounds of the usual standards to listen to Members of this House and to meet with us and hear the seriously held concerns that we championed in Committee about the wider impacts of the clause as drafted. Their willingness to respond to our concerns sends a powerful signal that while the Government are committed to bringing broadband to the greatest number of people they are not intent on nibbling away at essential protection policies for our most valued landscapes. I beg to move.
Lord Judd
My Lords, I am very glad to support this amendment. It seems that what we are dealing with here in this whole clause, as we argued in Committee, is not only the policy inherent in the clause now but the threat that it offers for the future. Since the Second World War, Governments of all persuasions have consistently adhered to the principle that there is something so special in this asset of these unique areas of countryside in our country—which are enjoyed by our people and have this incalculable value as a place for physical and spiritual regeneration—that there must be absolutely no doubt whatever that the protection of what they are about and of their scenic uniqueness takes precedence over everything. The trouble is that, once the door is pushed open and left, after discussion and argument, just a little ajar, there is this danger of still further erosion.
I support my noble friend on the Front Bench, who has paid a warm tribute to the Minister. She has been outstanding in her commitment and courtesy to the House and to the Committee. I have always thought that she was a decent, civilised person, and the way in which she has responded to the criticisms that have been made have left me in absolutely no doubt about that whatever. I would like her to accept that we are trying to uphold her in those values which she so obviously embraces. I was having a private word with her at one point and unfortunately—although I understand it—by the time that legislation is on the Order Paper and being debated there has been an awful lot of intellectual and policy input and people are very committed to the position which they have put forward and on which they have worked in a dedicated way to try to get the draft as true as possible. Sometimes there comes a moment when the logical thing to do is to stop trying to perfect something that is not really right and just to say, “That one was interesting but it is not going to be in the Bill in the future”. However, it is a very difficult thing for all those who have been involved to accept that sort of provision. I hardly dare say, and I do not mean this in any aggressive or patronising way whatever, but in all of us—not least myself sometimes—face is a very important issue, and sometimes it becomes so in the legislative process.
The logical thing for this House to do is to adopt the amendments that have been put so clearly by the noble Baroness, Lady Parminter. I hope that the House will endorse her position.
Lord Marlesford
I will just say a word in support of my noble friend’s amendment, which I have put my name to. First, I join in what has been said about my noble friend the Minister. In the years that I have been here, one has often had Ministers who, one feels, are mere parrots for the civil servants. That is not the case with my noble friend. She has taken a real interest and is really concerned to get the right answer. What is the right answer? I think there are three points.
First, as has been said, the protection and cherishing of these very special landscapes, particularly the national parks and the areas of outstanding natural beauty, is crucial for our very small island. The way in which we have retained them since 1949 is amazing. It must be remembered that we were 50 years after the Americans in inventing national parks, but a wonderful job has been done with them. We therefore have to make absolutely sure that we do not legislate for a short-term apparent problem. Nobody denies that the whole broadband thing is important, and we are united on the need for it, but we should not legislate on a short-term basis for that with any risk of undermining the very long-term principle of preserving these landscapes for generations to come. That is my first point, and I know that my noble friend is attempting to meet that in the amendment that she has put forward.
The second point is what could actually happen to the landscape as a result of what is going to happen in the way of installation of broadband. I had the advantage of going to a meeting with British Telecom—which my noble friend the Minister chaired, sponsored and arranged—and I found it, in a sense, quite helpful. There were one or two things that particularly struck me. First, although we questioned BT very closely, it was not able to produce a single example from the past or the predictable future of why this clause is needed. It is all very theoretical. The second point is that they showed us the various bits of hardware which are involved in broadband—one, of course, is the cabinets, which do the switching. They are quite big, about twice the size of filing cabinet, and they have to be scattered around; it is a little unclear how close they have to be to the service that they are trying to provide. They take the fibre optic cable and then transfer it to the copper cable, which is what most of the broadband ends up reaching the final premises in, unless it is a new premises in which case, they put the fibre optic straight in. The cabinets are quite big and could be very intrusive. It ought, in my view, to be quite easy to conceal them, and make sure that they are carefully sited.
The thing that worries me much more is the wires—the fibre optic cables that carry the signal. Wires that are strewn across open countryside can be very intrusive and damaging to the landscape and one simply does not want them. In the past, much care has been taken to ensure that that does not happen. British Telecom told us that where there are underground wires already, it will use the ducts in which those wires go to put the new fibre optics in. Where the services are already over ground, it will probably put the fibre optic cable on the poles that already exist. That is probably acceptable.
However, there is another point. BT is not the only organisation that will be putting in broadband in these rural areas. Another big company, the Japanese company Fujitsu, is keen to come in. We know that the ownership of existing methods of transferring wires is largely in the hands of BT. In theory it would be just as possible for the incoming company to take exactly the same care and trouble for its wires and cables as BT does. However, the fact is that this is something that belongs to BT and so it will have a commercial right to expect some money in exchange for using it.
The world of telecommunications—and the world as a whole—is highly competitive, and companies are trying to cut their costs to get the orders and the business. The point that I raised, which I hope that my noble friend may be able to comment on, is: to what extent—when we have finished with the Bill as it now looks with the amendments from my noble friend—will we be able to ensure that a third company, as it were, that comes in to install broadband in these sensitive areas is not able to cut a few cents of the cost by putting overhead lines where underground wires exist, or by putting up new poles where other people’s poles exist?
That is a really important consideration, which brings me to the third point about the importance of this debate. We know now, and have known for years, ever since various constitutional changes, that what is said in Parliament and can be read in Hansard is of value in the real world in years to come. Therefore, I am very anxious that, in expressing our concerns and wishes, we all spell out the problems and the Minister seeks to spell out the answers, so that when cases arise in which there are controversies and conflicts, at least Hansard will be able to be quoted and the intention and wish of Parliament can be interpreted.
Lord Adonis
My Lords, because the noble Baroness has a very important amendment in this group, perhaps I might speak after her rather than before.
Baroness Hanham
My Lords, I would be delighted to speak to Amendment 36A. I will just find it in my notes. In essence, Amendment 36A ensures that the duty that already exists under Section 109 of the Communications Act 2003 for the Secretary of State to have regard for the environment and beauty of the countryside will be deemed to meet the “have regard” duties set out in protected areas legislation, when the Secretary of State comes to make regulations under Section 109.
Subsections (2), (3), (4), (6) and (7) of Clause 8 caused concern because they disapplied the express “have regard” duty imposed on the Secretary of State when making regulations. As the noble Lord knows, and the noble Baroness, Lady Parminter, has been kind enough to indicate, we have listened to concerns and have removed those express disapplications.
The drafting approach could not be replicated in exactly the same way in relation to the “have regard” duty referred to in Clause 8(5) because that is not a duty of the Secretary of State but is specific to a statutory undertaker within the relevant Norfolk and Suffolk Broads Act 1988. However, by using a similar approach, the definition of statutory undertaker within that Act, for the limited period of five years, has been aligned with the policy so as to avoid the express disapplication of the “have regard” duty.
I hope that the amendment reassures the House that our intention was only to ensure that the right legal framework was put in place and that we had no wish to unpick the distinct and settled legislative framework that applies to the national parks. I emphasise that the purpose of our reforms is to ensure that fixed broadband deployment is not held back in the small minority of cases where local planning authorities and communications providers are not able to agree the best siting. The Government remain convinced that the natural environment and landscape are of crucial importance, which is why there will be a number of important safeguards. I could move on to other aspects, but I think that was the bit the noble Lord asked me to speak to.
Lord Adonis
My Lords, I am very grateful to the Minister, and to the noble Baroness, Lady Parminter, who has pursued this issue throughout the passage of the Bill and has achieved a very significant step forward on the part of the Government.
What we need to be clear about is when the Secretary of State will continue to be under a duty to have regard to,
“the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside”,
as required by Section 109(2)(b) of the Communications Act 2003. It is absolutely critical, in the desire that we all share to see the extension of broadband to the national parks and other areas of outstanding natural beauty, that a real obligation with a statutory foundation will continue to be placed on the Secretary of State to have regard to the need to conserve and enhance their natural beauty.
Baroness Hanham
My Lords, I was remiss in not thanking noble Lords who have thanked me very graciously. I hope we are still in that position when we get to the end of today but for the moment I will accept it with gratitude. It has been my pleasure—and always is—to have discussions with noble Lords and relevant people associated with the Bill. As the noble Lord, Lord Adonis, has said, the noble Baroness, Lady Parminter, has moved and shaken this aspect of the Bill and I am delighted that we have now achieved what she and other noble Lords are happy to accept.
With regard to the point about “having regard to”, the Secretary of State’s responsibility for having regard to is not changed by this legislation. It is just amalgamated into one area so it does not have to wander its way through all sorts of bits of legislation. I hope the noble Lord will be happy to accept that.
The Government have never intended to ride roughshod over the protected areas legislation but to ensure that there was sufficient legal certainty in the primary legislation when bringing forward our proposed changes to secondary legislation. Our policy goal is to simplify the planning regime so that the rollout of fixed superfast broadband—so urgently awaited in many of our rural communities—is not held back unnecessarily in the small minority of cases where planning authorities and communications providers are unable to agree the best siting for equipment. The noble Lord asked me a question and I have answered. He is in a position to wind up for his side. Does he wish to speak again?
Baroness Hanham
In Committee, at the noble Lord’s suggestion, I undertook to meet representatives from the English National Park Authorities Association. We did so, with Ministers from the Department for Culture, Media and Sport and the Department for Environment, Food and Rural Affairs. I met representatives from the English national parks and the National Association for Areas of Outstanding Natural Beauty, who highlighted their overriding concern that the express disapplication of the “have regard” duty would set an unwelcome precedent. Following this meeting, we undertook to consider if we could find an alternative way to ensure legal certainty—and that is a more formal response to the noble Lord—and give the necessary powers to amend regulations. I am delighted that, following further discussions between the officials, we have been able to table this amendment which directly addresses the concerns raised and has been welcomed by the English National Park Authorities Association. Amendment 36A picks up that duty.
The purpose of our reforms is to ensure that fixed broadband deployment is not held back in the small minority of cases where local planning authorities and communications providers are not able to agree the best siting. I hope that, after all we have done, this will not become an issue. Should it be, however, at any stage, this is the way it will be managed by the providers.
The Government remain convinced that the natural environment and landscape are of crucial importance, which is why there will be a number of important safeguards. First, the voluntary code on siting best practice for operators and planning authorities will have input from the national parks as the English National Park Authorities Association is involved in the working group which will draft the code. Secondly, communications providers will remain under a statutory duty to consult the local planning authorities on their proposed deployments.
The noble Lord, Lord Marlesford, asked me whether anybody other than BT would be committed by these clauses and amendments. We recognise that there will be other communications providers as well as BT. All providers will be involved in drafting the code and will be committed to complying with it. I have not been given the answer to the question of whether other providers would be able to use BT’s infrastructure, but I hope to know it before I come to the end of my speech.
First, as I said, the voluntary code on siting best practice for operators and planning authorities will have input and secondly, communications providers will remain under a statutory duty to consult local planning authorities. Thirdly, “environmental sustainability” is a requirement of the Broadband Delivery UK contracts in the areas to which they apply, meaning that local authorities are able to specify particular requirements in their Broadband Delivery UK contracts if they wish to do so.
The noble Lord, Lord Adonis, who has expressed support for the amendment—for which I am grateful—presented figures in Committee regarding planning approvals in national parks and suggested that the proposed relaxation of planning controls was unnecessary. I have written to colleagues and responded to the noble Lord’s points. Only a small proportion of those figures which the noble Lord quoted relate specifically to the installation of superfast broadband, which is, as he knows, still in its very early stages in these areas, while the larger proportion will be for voice services for the most part. While the figures show a high percentage of approvals, there has been no indication of the time taken for the decisions to be made. Our proposals are about ensuring certainty across all areas to aid investment decisions and ensure that resources can be deployed efficiently.
We have listened carefully to the concerns and have brought forward Amendment 36A to address them. Crucially, it has the support of the English National Park Authorities Association and the valuable support of my noble friend Lady Parminter. I hope that the House will support it.
The amendment will ensure that the duty that already exists under Section 109 of the Communications Act 2003 for the Secretary of State to have regard to the environment and beauty of the countryside will be deemed to meet the “have regard” duties set out in protected areas legislation when the Secretary of State comes to make regulations under Section 109.
I hope that I have dealt with questions that I have been asked. I shall therefore move Amendment 36A and hope that, with the explanations that I have given, my noble friend Lady Parminter will be willing to withdraw Amendment 36.
Lord Adonis
My Lords, the Minister’s explanation was clear and the position that she has taken is extremely important in preserving the requirement to enhance and conserve the natural beauty of the national parks. We therefore welcome her concessions in the amendment.
Perhaps I may put on the record the conclusions of the meeting which the Minister held with the representatives of the national parks, because they are quite important for how we proceed hereafter—as the noble Lord, Lord Marlesford, so rightly said, what is said in this House forms a benchmark for what happens afterwards. At the conclusion of the meeting, the Minister for Culture, Ed Vaizey, emphasised that the clause is not about stigmatising national parks and areas of outstanding natural beauty as obstacles. Representatives of the national parks and the areas of outstanding natural beauty reiterated their belief that there was no evidence that they cause issues with deployments and said that they do a lot of work on the issue. Ed Vaizey agreed that national parks and areas of outstanding natural beauty do some excellent partnership working. He offered to facilitate regular meetings with representatives of the national parks, areas of outstanding natural beauty and BT to discuss the rollout of superfast broadband in their areas and to ensure that they continue to support deployment and that any issues can be resolved quickly.
Those assurances given to the national parks by the Minister are extremely important. I think it is important to put them on the record and to state very clearly that your Lordships expect that the Government and BT will hold fast to those commitments and will consult intensively and extensively with the representatives of the national parks and the areas of outstanding natural beauty to see that we get the rollout of superfast broadband in the national parks—where there are large numbers of residents and businesses that badly need it—in the most sensitive way possible that conserves and enhances their natural beauty.
Baroness Hanham
My Lords, I know it is not up to me to intervene again but as we come on to the next amendment it may be helpful to say that I will probably be able to give the noble Lord the assurances he seeks on that as well. With the leave of the House, I should like to answer the question of the noble Lord, Lord Marlesford, which was whether any other operators apart from BT will be able to use the BT infrastructure or whether they would have to put in their own. BT is under a regulatory obligation to share its infrastructure.
Baroness Hanham
“( ) In section 109 of the Communications Act 2003 (regulations specifying the restrictions and conditions subject to which the electronic communications code is to apply) after subsection (2) insert—
“(2A) Subsection (2B) applies if—
(a) the Secretary of State has complied with subsection (2)(b) in connection with any particular exercise before 6 April 2018 of the power to make regulations under this section, and(b) the regulations in question are expressed to cease to have effect (other than for transitional purposes) before that date.(2B) The Secretary of State is to be treated as also having complied with any duty imposed in connection with that exercise of that power by any of the following—
section 11A(2) of the National Parks and Access to the Countryside Act 1949;
section 85(1) of the Countryside and Rights of Way Act 2000;
section 17A(1) of the Norfolk and Suffolk Broads Act 1988;
section 14 of the National Parks (Scotland) Act 2000 (asp 10);
Article 4(1) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (S.I. 1985/170 (N.I. 1)).”
( ) For the purposes of its application to section 17A of the Norfolk and Suffolk Broads Act 1988, the definition of “statutory undertaker” in section 25(1) of that Act is until 6 April 2018 to be read as if paragraph (d) were omitted.”
Baroness Parminter
“( ) The Secretary of State shall by regulation introduce a statutory code of practice specifying how operators of broadband networks to whom the electronic communications code is applied shall consult with local planning authorities.”
Baroness Parminter
My Lords, we all support the deployment of broadband in rural areas, and the key for us is how best we deliver that. I still do not think that the Government have made a conclusive case for the need to change the existing planning regime in terms of proving that existing arrangements are a barrier to delivering broadband. Few cases have been cited outside the national parks, and as my noble friend Lord Marlesford and the noble Baroness, Lady Whitaker, said, the national parks authorities are not inflexible regulators, bystanders or obstacles to broadband rollout.
Equally, I am disappointed that the Government have not published the responses to the latest consultation on their planning proposals prior to Report. Hearing stakeholder views could have helped our deliberations, thus enabling legislation. However, I understand why the Government want to introduce these changes to the planning regime, so we should seek to ensure a strong code of practice that delivers the best outcomes in deploying broadband infrastructure in our most valued landscapes.
I think a statutory code of practice to ensure best practice in siting infrastructure would be best, but I hear the argument that for such a code to be as effective as possible, it needs to be owned by planning authorities and broadband operators. Therefore, I hope that, in responding, the Minister will be able to confirm four things. The first thing is that the code of practice will be clear on mechanisms for dispute resolution between planning authorities and broadband operators when there are disagreements over siting. Given that the proposed changes give operators the final say on siting, it is important to seek agreement to ensure we do not end up with cabinets pepperpotting across our most treasured landscapes, causing detrimental impact to the landscape’s qualities and thus to the tourism industry that underpins economies in rural communities in our most highly visited and iconic landscapes.
The second is that the code will require the sharing of infrastructure where feasible: a critical issue that is not mentioned in the scope and guiding principles that have been drawn up to date. In this, I include pole sharing, where existing poles are available, and introducing processes so that broadband operators can be made aware of the opportunities to piggyback on to the work of energy providers who are undergrounding lines in the area.
The third is that the process for reviewing the success of the code and the trigger mechanism for deciding to make the code statutory is made clear. The final thing is that the anticipated date for the finalisation of the code is stated. Once this code is finalised, adherence to it can be incorporated as a contract requirement into publicly funded broadband deployment projects. As such, it is a key tool to ensuring the best siting of broadband infrastructure, and we need it finalised as soon as possible. I beg to move.
Lord Judd
My Lords, I warmly endorse this amendment and thank the noble Baroness, Lady Parminter, for introducing it. Across the whole history of legislation, I am afraid there is far too much evidence that codes and the like, without statutory authority, become useless in time. We have to remember—and we all pay tribute to the present Minister—that once new legislation is there, we are not necessarily going to be dealing with people like the current Minister. We cannot be certain who we will be dealing with. The current Minister is determined, and I am sure she means every word she says, that these things will be used to ensure what we all treasure about the parks, and so on. However, when she is gone, who will there be? I suggest to her that there are people with whom she must deal at the moment in her own Government who do not see it quite as she does. They have quite different thoughts about what this wonderful land might be used for. It is therefore really important to give the codes statutory authority.
As a vice-president of the Campaign for National Parks and as a patron of the Friends of the Lake District, I might say that the people who are, with their quality and commitment, turning concern into practical reality in all that they do to further the parks and the rest are deeply disturbed at the dangers that are there. They are not questioning the current Minister’s good intent but asking, “Where are the guarantees that these things that are being said in good will will actually be there for all to observe in future?”. Is this going to be another of those occasions on which we satisfy our own public profile by saying, “Well, we have this code”, or do we really mean what the code says? If we really mean it, let us for goodness’ sake make certain that it has the authority of the law behind it. This amendment is very important indeed.
Lord Tyler
My Lords, I strongly support my noble friend Lady Parminter. I should say that in the past I was vice-chair of a national park committee and therefore hold very dearly the responsibilities of the wider public within the national parks for their effective preservation and conservation in the national interest. I would also emphasise that there are many SMEs in national parks that will benefit from the extension of these very important communication facilities. However, there is a real urgency to have real clarity in the new regime to make sure that there is proper co-ordination between those who are going to provide for these new facilities along with the existing undertakings.
From my previous experience of seeing how the statutory undertakings, before they were privatised, never really got to grips with the need for co-ordination, the point that my noble friend made just now—about making sure that those who provide the new facilities are also properly co-ordinated with those who have responsibility, for example, for improving energy supplies—is absolutely critical. Otherwise we would have the ridiculous situation of upheaval and then renewed upheaval as the new undertakings take over. The equal need for greater clarity, to which my noble friend just referred, is extremely important, because otherwise we will have a very confused situation.
There is such urgency for this that I hope my noble friend the Minister will be able to give us an undertaking that preparatory work is well in hand to ensure that all the issues to which my noble friend referred are already being carefully examined. I am sure that all the communities within the national parks, and those who have concerns about the future of the national parks outwith them, will be met in the next few weeks and not be left with many months of consultation and revision before we see a final result.
Lord Marlesford
In supporting this amendment, I underline that we are talking not only about national parks but specifically about areas of outstanding natural beauty. Perhaps I could remind your Lordships that one is not more important than the other in the hierarchy of beauty. The difference between national parks and AONBs is that national parks are wilderness areas, which AONBs are not; they are very often highly cultivated and farmed areas.
I remind your Lordships once again of a phrase that was used and which is central to the whole issue in its broadest context. It is a phrase that was used by Nicholas Ridley while ex cathedra, as one of the best Environment Secretaries there has been since that government department was created. He stated the importance of protecting the countryside for its own sake. That really embraces it, whether the new broadband is being put into a national park, an AONB, a special landscape area or anywhere where there would be or could be gratuitous damage to a precious landscape.
Lord Adonis
My Lords, first, I reinforce the point made by the noble Lord, Lord Tyler, about the importance of seeing that there is a proper communications infrastructure for the national parks, including superfast broadband. He said there were many SMEs. I have been struck by quite how many there are. According to the information that has been supplied to us, there are 22,000 businesses in the national parks, of which over 70% are SMEs. In areas of outstanding natural beauty, there are more than 61,000 businesses, of which 74% are SMEs. There are also 153,000 homes in national parks and over 467,000 in areas of outstanding natural beauty. We are therefore wrestling here with the need to get the balance right. All these businesses and residents want to see modern communications infrastructure, but they want it installed in the most sensitive way possible after proper processes of consultation and collaboration locally. That is what we are seeking to get right.
We have been talking a lot about processes, and a key question is what is going to happen in the rollout of this infrastructure, a point made by the noble Lord, Lord Marlesford. It is clear that big choices will have to be made about how much undergrounding takes place when it comes to overhead wires. That will be a critical issue as this infrastructure is rolled out. There are real causes for concern. It is hard to predict quite what will happen after this legislation is passed and plans come forward. The impact assessment that followed DCMS’s consultation referred to possibly 1,600 kilometres of new overhead wire lines in protected landscapes over the five-year period for which the changes apply. However, it is impossible to gain an accurate understanding of the impact because the document quotes two different figures for the expected annual increase in overhead lines.
However, the Campaign for National Parks points out that there is a good deal of discretion when this work is being planned as to how much is undergrounded. The relevant regulatory bodies make allowances in the control periods for the amounts that can be spent on undergrounding overhead electricity lines. This also applies to decisions that BT will take about undergrounding other telecommunications lines. The sums of money involved are very large. The Campaign for National Parks also points out:
“Given the resources … now being put into undergrounding power lines, it would be more cost-effective to plan for broadband delivery in protected areas in a way that reduces the visual impacts from the outset, even if this results in higher costs initially. Installing broadband infrastructure as quickly and cheaply as possible would be a false economy and a waste of consumers’ and taxpayers’ money if further funding has to be generated at a later date to put these lines underground”.
The national parks make the very sound point there that to go headlong into the cheapest possible means of installing infrastructure only to have to replace it in due course because of a public outcry as a result of the failure to underground where it is needed to protect and enhance the landscape, would be a false economy. Let us be clear about that. Not to plan properly for this and then to have to come back a second time and spend a very large amount of taxpayers’ money in undergrounding lines because it was not planned properly the first time around would be a false economy. We are not very good in this country at planning infrastructure in such a way that we do not have to go back and do it a second time because we did not plan it properly the first time around.
I hope that the noble Baroness, in her concluding remarks, will recognise the problem that we face here: the obvious need to get infrastructure to those in national parks who require it for their livelihoods, but not to do so in a way that will only require us to go back and do it all a second time because we did not get it right the first time.
Baroness Hanham
My Lords, I thank the noble Baroness for moving this amendment, which gives us an opportunity to talk about the code of practice and whether it should be statutory or voluntary. At present, we do not believe that the proposed code of best practice for the siting and appearance of fixed broadband infrastructure needs to be given statutory effect. It is important that the code is agreed collectively by all those concerned and given a chance to work as a voluntary code.
In any case, it would not be possible or necessary to bring forward a statutory code of practice in the way that I think is intended. Rather than a statutory code, the material principles of the code of practice would instead need to be included in amended Electronic Communications Code (Conditions and Restrictions) Regulations. The power to provide for these matters in regulations already exists in Section 109 of the Communications Act 2003.
However, additional regulations are not needed. I am pleased to report that work is progressing well in developing a voluntary code. The working group drafting the code has agreed its scope and some broad principles, which I shared with noble Lords last week. While the final detail is still to be worked through, we anticipate that it will provide a good foundation on which to build for the future of broadband. The code working group is made up of communications providers—that is, over and beyond BT—local planning authorities, Ofcom, the Office of the Telecommunications Adjudicator, English Heritage and the national parks. It is a representative group, which is engaging keenly in bringing the code to fruition.
The key to rolling out broadband quickly will be partnership working between communications providers and planning authorities. We want to see that work, and the voluntary code will be an essential tool in achieving that. I believe that there is real commitment from all sides to addressing the issues around how broadband is delivered, the co-operation and co-ordination necessary and the involvement of those affected in the provision and siting of the infrastructure.
Communications providers have committed to taking forward the drafting, but the scope of the code of best practice that was agreed last week includes the size and appearance of cabinets and new poles; their location, including the proximity to homes and businesses, road junctions and placement in the footway; early engagement with all interested parties including local planning authorities, highways authorities, other infrastructure providers in the area; and, in the case of new poles, engagement with communities through the local authority—that is, consultation between us. The noble Baroness, Lady Parminter, asked whether there would be mechanisms for dealing with disputes. Part of the code that is being worked up at the moment deals with precisely that: there will be mechanisms for dispute resolution, in the event that there is disagreement. The agreed scope also includes ensuring consistency of definitions and how the code relates to the various pieces of legislation that underpin it; and the consistency of application through the supply chain, including contractors.
Consultation with other infrastructure providers probably includes, most specifically, consulting electricity companies because they work in this area. The purpose of this is to ensure that, before deploying any new infrastructure, providers explore opportunities for sharing existing infrastructure, and that would include underground provision as well. Early consultation with the electricity companies provides an opportunity to co-ordinate deployment with any plans to underground electricity cables in the area, so where everyone is linking up, they ought to be able to use the same trenches and ensure that as much is hidden from view as possible. In the meeting that we had with people from BT, they made it clear that this is what they would want to do—where there are opportunities for undergrounding, they will do it. That is something else that would have to be negotiated with the local authority regarding the contracts that those local authorities hold with BDUK.
I reiterate that local authorities that are procuring networks through the Broadband Delivery UK programme still have the opportunity to influence the type of infrastructure that is deployed; they are the procuring authorities, after all. Local authorities can also make adherence to the code of practice a contractual requirement of the Broadband Delivery UK projects for contracts that they enter into themselves.
In addition, bringing forward regulations at this stage would delay implementation of the broadband support package that the Government set out in September last year, particularly if the voluntary code first needs to be produced and agreed to by all parties, which we are confident will be the case. Indeed, we asked about when these regulations in the code will come into effect. We expect the code to be completed and ready to come in at the end of May—so not too long now.
We are anxious to see broadband implemented as quickly as possible. The noble Lord, Lord Adonis, quoted some very interesting figures as regards the number of people who live and work within the national parks. It is not an insignificant number. All of those people, particularly in businesses, need access to fast broadband as soon as they can get it. The difficulty of placing a code on a statutory footing would be getting it in time and at this speed; it could disrupt the productive work that is taking place, which is supported all round.
Having said that, we recognise the concerns that have been expressed again today. We will be monitoring the operation of the code closely for both commercial and publicly funded broadband deployments. The noble Lord, Lord Adonis, also referred to the meeting with Ed Vaizey, the Minister in the other place. Reviewing how the code of practice is working will be undertaken by him; he will include this in his regular meetings, which I gather are taking place once a week with all the communications providers. In the first instance, we would expect communications and planning authorities to report back on any early lessons learnt so that they can be reflected in changes to the code of practice. As I made clear, the opportunities for them to do that are very real and there will continue to be very close monitoring at the other end.
If concerns are raised with the Government on adherence to the code, we will of course need to consider whether those concerns are best resolved through bringing forward additional regulation, so this is not being ruled out. I assure the House that if it is concluded that regulation is needed, the necessary regulations could be brought forward with urgency and it would be our aim to put them in place. That could be done within a matter of months should the need arise and subject, of course, to Parliament agreeing to those regulations.
I hope that I have made clear why we do not support this amendment, which would, particularly at the moment, introduce delay. We believe that there are enough checks and balances in the code itself and from the monitoring that will take place within the Minister’s office and by the local authorities themselves—they have a very real role and interest in this. For the time being, anyway, we do not need a statutory code: we believe that the voluntary code will work. I hope that, with the assurances I have given, the noble Baroness will be able to withdraw her amendment.
Baroness Parminter
My Lords, I am grateful for those reassurances from the Minister and for the Government’s commitment to a strong code of practice. I am also grateful for the clarification that should this voluntary code fail to deliver the outcomes that we in this House wish it to, and to which at this stage both the broadband operators and the planning authorities are committed, the Government will look seriously at bringing forward—at the earliest opportunity, through secondary legislation—opportunities to make this statutory. With that, I seek the leave of the House to withdraw my amendment.
Lord Judd
My Lords, one might ask why I am moving the amendment in the light of the good exchanges we have been having in our deliberations so far. I go back to the basic issue: why is this clause in the Bill at all? If we have had to have this tremendous amount of discussion, this avalanche of reassurances from the Minister, meetings at which reassurances have been given and all the rest of it, why have the clause in the Bill?
That means that it is necessary to look at the motivation for the clause. I suggest that the motivation is not what we have been talking about. It is not about preserving the unique role and position of the parks and areas of outstanding natural beauty. There is a feeling that this could become an obstacle to other priorities in government administration and that, therefore, we need to look again at this absolute commitment and qualify it, whatever reassurances are given.
Like my noble friend, I read with great interest the note on the meeting with the English National Park Authorities Association. Again, it was far from clear to me after reading that why the clause was being proposed unless it was for the reason that I have put to the House. I therefore suggest that, at this stage, we need to hear from the Minister why it is essential to have it in the Bill, with all the qualifications that have now been made. I am sure that, as a reasonable person, the Minister will agree with me that those qualifications are all based on her word. They are not reinforced by the legislation. They are her interpretation, her good will, her undertakings and her reassurances, with a bevy of officials around her to add dignity and, I am sure, a good deal of intellectual input to the occasion.
The clause and its purposes, and why it is there in opposition to the priority we have all had in the past, are the real issue. I seek from the Minister some kind of convincing argument as to why the clause is necessary. I beg to move.
Lord Jenkin of Roding
My Lords, I have not tried to get into the discussion on Report so far. I made my view clear in Committee that this clause was a good thing. I, too, warmly commend my noble friend on the Front Bench for the amount of care and trouble that she has taken. I particularly valued the meeting that she arranged with the representatives of BT. I found it extremely informative, both as to their attitude to all this and as to some of the technology, of which I confess I was not wholly aware. For instance, one does not need a continuous line to take superfast broadband across the country. If you have the right equipment in a cabinet, you can, I think, go up to a kilometre by wireless transmission. That may well be a way in which one can protect a particularly sensitive area from the need for lines.
The other thing that was made absolutely clear, and which we have heard all along from my noble friend, is that for overhead lines we are not talking about anything other than poles. This is not the kind of thing one has for mobile telephones; they are straightforward wooden poles with the wires on top. I recognise what has been said about the need to site these sensitively, because one is talking about sensitive areas.
I totally admire the sincerity of the noble Lord, Lord Judd, on this. He feels very strongly about it. The noble Lord, Lord Adonis, read a bit of a passage from the conclusions of the meeting with the national parks and others, which was held under my noble friend’s chairmanship on 1 March. He quoted the first sentence of the paragraph headed:
“Working together on the deployment of superfast broadband”.
It states:
“Ed Vaizey emphasised that the clause is not about stigmatising National Parks and AONBs as obstacles”.
That is absolutely right. He then went on to the next paragraph, but it is worth reading the words that come between because I think that to some extent they answer the question of the noble Lord, Lord Judd, as to why we have the clause at all. It states that Mr Vaizey said:
“Government recognises the important work that they”—
the national parks—
“already do in encouraging broadband deployment. However, we need to find a way forward to encourage investment in broadband and provide the certainty we need that will ensure the public money being used to support Broadband is not tied up with bureaucracy”.
Lord Judd
I wonder whether the noble Lord, who is a good friend of many years’ standing, might just reconsider the impression he is giving that it is a question of the practical needs of the nation against bureaucracy. I do not believe that that is the situation at all. Of course there are practical needs of the nation, and in this sense I declare an interest, as I have done before in our deliberations: I live in a national park and I want good broadband—of course that is true. Having said that, what we have had in the past is the paramount consideration of the unique role of the past. Regarding what is taking up time—and I again come back to the point which my noble friend has so convincingly made ever since we started deliberation on this Bill—it is precious difficult to find any evidence that there has ever been unnecessary delay or a hold-up of the kind described. In fact, I would suggest that there is no evidence that this is out of kilter with what happens anywhere else.
It seems to me that we want to ensure that, notwithstanding this need to take seriously the issue of broadband for the sake of a strong economy, we do not push to one side this paramount concern that we have had in the past. I do not believe that it is impossible to reconcile the two, but I think that it has to be argued very hard, and on occasion it will need a lot of serious deliberation. I do not think that it is just a straightforward administrative point. From this standpoint, it is not just a bureaucratic delay but a battle of priorities.
Lord Jenkin of Roding
I was happy to give way to the noble Lord and he has confirmed what I have always regarded as one of the most heartening aspects of this whole question: the universal desire to make sure that broadband reaches even the most remote rural areas so that they can participate in the modern economy. That is hugely important. It is absolutely right that it is a function of Parliament, and perhaps of this House in particular, to ensure that there are proper safeguards and controls and that AONBs are properly protected. The noble Lord, Lord Judd, talked about the unique value of these national parks. It is a question of finding a balance between those two.
I believe that this clause is right, and it would be a pity if the noble Lord were to press his amendment—I am not sure whether he will—and if it were carried. We have had a good discussion. The amount of care that my noble friend has taken and the number of meetings that she has convened and chaired herself have been extremely helpful in getting people to understand what is involved in this—and that certainly applies to me. I hope that we will resist the amendment of the noble Lord, Lord Judd, while at the same time recognising his passion for defending his beloved national parks.
Lord Adonis
My Lords, I agree with the very last words of the noble Lord, Lord Jenkin. I have huge admiration for my noble friend Lord Judd, but even he would accept that they are not his national parks but the nation’s parks. That is why the concerns that have been raised this afternoon are so significant. They are held in trust for the nation, and we want to see that their beauty is preserved and enhanced for subsequent generations so that all the good work done by my noble friend is not wasted in the years ahead.
Baroness Hanham
My Lords, nobody in this House would disagree with the last remarks of the noble Lord, Lord Adonis. We all have an interest and are all convinced that we want to keep hold of the beauty of the national parks and preserve them from totally inappropriate infrastructure. The noble Lord, Lord Judd, rather suggested that what I was saying was mere words. I hope that noble Lords will take it a step beyond that. In fact, mere words can be made to translate intention into real life. The scrutiny that this House has given this clause is invaluable because it will be exactly and precisely recorded how the broadband operators are going to work and how everybody is going to co-operate. The reasoning behind the clause will be made clear.
The noble Lord, Lord Judd, kept saying, “Why is this clause necessary at all?”. When we started this afternoon, I gave a rather truncated version of why the clause is necessary. It will make sure that the providers know how long this whole process will take. Everybody wants this completed as soon as possible. If there are problems at any stage that hold that up and that cannot be dealt with by the code of practice, the consultations or the discussions between all the parties, at the end of the day the operators will know that they can proceed—although it will probably be over everybody’s dead body. We believe that that is important. Goodness knows, we all know of many projects that get held up because people disagree and nobody will come to a conclusion, but this will ensure that there is a conclusion and that the process can proceed. Again, I expect there to be a hold-up in a very limited number of cases but, should those cases arise, these provisions will be helpful for carrying on and ensuring that we deliver broadband as quickly as we possibly can.
It may be of interest to noble Lords to know that for the first time Ofcom has published something called the European Broadband Scorecard. I am sure that noble Lords have all lit on this as something which has the lightness of touch that they want to read at night as they go to bed. It is intended to allow the Government to measure progress towards their ambition. The scorecard currently shows that the United Kingdom is performing well among the major European economies. We currently benefit from low prices and a high degree of competition in the broadband market, and so far the UK has the best deals available for consumers across a selection of pricing bundles in the major European economies. On superfast broadband coverage, this country currently ranks in third place behind Germany and Spain. Clause 8 is intended to help to improve on that position by making sure that we achieve our goals by 2015.
We recognise that more rural and remote areas, including protected areas, are where an infrastructure upgrade is needed the most. We also recognise that they are some of the areas in the country where there is most sensitivity. However, we do not want those rural areas to be left behind.
The national parks and areas of outstanding natural beauty have been key partners in the rollout of broadband and we very much welcome their involvement, their commitment to the process and their conclusion that the first amendment I moved, in particular, was satisfactory and solved their particular problems.
Things are already happening. Connecting Cumbria is a partnership which has brought together a range of partners who are already working together and improving the broadband process. When Ed Vaizey, the Minister for Culture, Communications and Creative Industries, and I met with representatives from the national parks and areas of outstanding natural beauty, he confirmed—and I confirm again what I said in relation to the previous amendment—his intention to continue working closely and having regular meetings with them throughout the deployment of superfast broadband.
The Government remain convinced that the natural environment and landscape is of vital importance. That is why the code of best siting practice for operators and planning authorities will have input from the national parks. That is why the duty that we are adding to promote economic growth sits alongside the other duties, including,
“the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside”.
That is why “environmental sustainability” is a condition of the Broadband Delivery UK contracts.
The rollout of superfast broadband is of national importance because of the contribution that it can make to GDP growth, apart from anything else. It is, however, an infrastructure that is built locally. Local authorities know their areas and that is why the Government have given them a central role in all this. They are in charge of the Broadband Delivery UK contracts in their areas and will be able to set their own conditions on those contracts. For example—and here I underline the point made by the noble Lord, Lord Adonis—if they want to, they can specify in the contracts that in certain areas cables must be underground. They can also specify requirements in respect of the visual impact of installations. This can include compliance with the code of best siting practice, when it has been agreed, which it is hoped will be in May.
A number of questions have been raised as to why, given the excellent work under way from the national parks and areas of outstanding natural beauty, this clause is necessary. I hope that I gave the answer to that in my opening response. It is crucial not only that we achieve value for money from the investment that we make but that we get speed broadband developed as quickly as we possibly can.
It is important to make the point that we are not suggesting that without this clause applications for cabinets or poles will be turned down. We recognise that the vast majority of applications for telecoms equipment have been accepted to date and that the national parks and areas of outstanding natural beauty are extremely keen to work with us on broadband coverage. I have given the reasons for this clause twice now, so I will not go through them again.
It is also about providing local authorities with a choice of deployment options. The relaxation of the restriction on new overhead lines does not mean that it will become the default deployment option. Perhaps I may also make it clear, for the avoidance of doubt, that the intention is not to use the Clause 8 power to remove prior approval requirements for mobile masts. This measure is being introduced to provide flexibility and an additional deployment option to enable superfast broadband to be deployed in the more commercially challenging parts of the UK.
We have had an excellent discussion on this clause. We have spent quite a lot of time on it in this House and I do not regret that at all. At the end of the day—and I hope at the end of today—we will all have provided answers to some of the many questions that have been raised. I hope that, as a result of what we have done in the House today and the work that has been undertaken, we can be sure that superfast broadband will be rolled out as quickly as possible. With that, I hope that the noble Lord, Lord Judd, will feel satisfied enough to be able to withdraw his amendment.
Lord Judd
My Lords, I thank all those who have participated in the debate on the amendment, not least the Minister for her characteristically full and sensitive reply. In our deliberations today, she has drawn the attention of the House on more than one occasion to meetings with the English National Park Authorities Association and has sought to reassure the House that its concerns have been met. Of course, the ENPAA is firmly on record that it would like the clause removed. Therefore, the Minister has not met that particular concern. To her credit, she has not attempted to claim that.
This has been an important debate because, listening carefully to the Minister and to the noble Lord, Lord Jenkin of Roding, with his tremendous commitment to the economic success of the British economy and the contribution by an efficient energy sector to that success, it has become clear to me what I have always worried about. In this game, we can have all the reassurances and all the arrangements that we like as to what ideally should happen, but it must be firmly understood that going ahead with projects, in the end, prevails. That is where I get off the bus. I take second place to nobody in wanting a strong economy, not as an end in itself but in the interests and for the well-being of the British people. I am convinced that the parks, the areas of outstanding natural beauty and, indeed, much of our countryside make an unrivalled contribution to the well-being of the British people. I do not want to fudge this. There will be moments when the interests of that wider well-being—measured not just in cash terms, in financial terms, but in the richer enjoyment of life and the fulfilment of potential—will need to take precedence if we want a civilised society in which to live. That is the whole point. The Government do not share that view because they believe that in the end the financial considerations of the economy and the rest must at all costs take precedence. That is probably why I am on this side of the House and the noble Baroness is on that side of the House. That is an honest position. I do not take a totally materialist view of the well-being of the nation.
I have listened to the arguments put by the Minister and others. I have also, because I have been here a long time now, listened to the atmosphere conveyed by words—if you can listen to an atmosphere; I think that noble Lords will know what I mean—and at this stage I have to say that I see a lawyers’ paradise ahead and some very tough battles ahead for those who share my perception of what our civilisation and society should be. Just at this moment, we will have to make good with the assurances that the Minister has given. I genuinely hope—I am not being in any way sarcastic—that she will go to her grave, a long time hence, convinced that all she said is being fulfilled in the spirit and not just the detail. I hope that one day she will come to share my view of what is the well-being of the British people and what hard decisions may be necessary in that context. However, at this stage, I seek leave to withdraw the amendment.
Lord Shipley
“Definition of indebtedness
(1) The Localism Act 2011 is amended as follows.
(2) For section 171 substitute—
“171 Definition of indebtedness
(1) A local authority shall determine and keep under review the amount of housing debt held by that authority.
(2) A determination under this section must have regard to the duty to determine an affordable borrowing limit under section 3 of the Local Government Act 2003 (duty to determine affordable borrowing limit).
(3) A determination under this section must have regard to any guidance issued or approved by the Secretary of State and this may include provision requiring a person making a determination under subsection (1) or (2) to have regard to one or more specified codes of practice, whether issued by the Secretary of State or another.
(4) A local housing authority may not hold debt in contravention of a determination under this section.
(5) In this section “housing debt”, in relation to a local housing authority, means debt—
(a) which is held by the authority in connection with the exercises of its functions relating to houses and other property within its housing revenue account, and(b) interest and other charges in respect of which are required to be carried to the debit of that account.””
Lord Shipley
My Lords, the amendment would help to solve three problems: the urgent need for more social housing; the lack of growth in the economy; and the need to boost the construction industry. It is supported by a number of organisations: the Local Government Association, of which I declare my vice-presidency, Shelter, the Home Builders Federation, the Federation of Master Builders, the Chartered Institute of Housing, the National Housing Federation, London Councils and, crucially, the National Federation of Arms-Length Management Organisations, ALMOs. All urge a relaxation on borrowing by local authorities to enable them to build up to 60,000 more homes over five years.
Last year saw the lowest house completion rate since 1923. The Government urgently need to get more social homes built and there should be absolutely no reluctance to build them. The shortage is now being exacerbated by the underoccupancy or bedroom tax. Many people on low incomes want to move to a council home with fewer bedrooms but too many are unable to do so because the homes do not exist. The numbers on housing waiting lists, the rising demand for temporary accommodation and high rents in the private sector all point to the social and economic benefit of building more homes at below-market levels. This amendment would help to build the homes that people want to move into.
The question is whether it is affordable for local government. Councils have the capacity to build more homes, given that council housing is now self-financing. They could raise £7 billion. This could be done if the Government removed the borrowing cap on housing revenue accounts, relying instead on a prudential borrowing code to guarantee that only sustainable investment gets the go ahead. Many councils have successfully used prudential borrowing and have shown that they can manage such borrowing without risk. The Local Government Act 2003 already empowers the Secretary of State to cap any local authority which undertakes risky borrowing.
I understand the need for the Government to be careful about public borrowing levels. However, relaxing the housing borrowing cap need not be counted as public sector borrowing any longer. The UK uses a much wider measure of public debt than other countries. Council housing is a trading activity and international regulations already permit this to be discounted from government borrowing levels, although unfortunately the UK does not currently adopt such an approach and I remain puzzled as to why it does not. Council housing has been self-financing since April last year, and that is welcomed. The average debt on a home is just over £17,000. There is clearly scope for additional borrowing against the asset represented by the existing housing stock.
This is an opportune time for the Government, with the support and input of partners such as CIPFA and the Local Government Association, to produce a new, additional, prudential borrowing code, focused on borrowing undertaken specifically through the housing revenue account. The prudential code framework is a successful model that has worked well and supported councils to manage their borrowing sensibly. A similar model alongside strong backstop provisions already in legislation—the 2003 Act—would be an effective safeguard on borrowing through the housing revenue account.
I spoke on this matter in Committee and this new clause differs slightly from that tabled in Committee to emphasise that local authorities must have regard to government guidance such as a new prudential borrowing code. Ministers raised concerns in Committee that removing the housing borrowing cap could jeopardise the Government’s deficit reduction programme. This amended new clause, alongside a new, tailored prudential borrowing code, discussed by providers and authorised by HM Treasury, would offer a compromise approach to the Government that could address the concerns of Ministers.
Advice has been received that there would be no adverse reaction from the capital markets. This is because the increase in borrowing would be comparatively low and, in any case, the sums involved fall well below the size of the OBR’s forecasting errors on local government debt. This amendment offers a major opportunity to build more homes, to cut waiting lists, to get builders building and to drive growth. I beg to move.
Lord Jenkin of Roding
My Lords, I support the amendment moved by the noble Lord, Lord Shipley, to which I have added my name. I imagine that my noble friend on the Front Bench will have seen the letter published in the Financial Times this morning under the heading, “Give councils freedom to build homes”. In addition to the list of organisations which the noble Lord, Lord Shipley, quoted at the beginning of his speech, this letter is signed by 13 separate organisations, which one might say cover the whole field of housing all the way from the Home Builders Federation to Shelter, and including, as just mentioned by the noble Lord, Lord Shipley, the National Federation of ALMOs—arm’s-length management organisations. They make this important point in the letter:
“Investing in housing not only helps tackle the housing crisis, which requires us to double the number of national homes and build 249,000 homes in London alone by 2020, but also stimulates economic growth and creates jobs. Building 60,000 homes would add 0.6 per cent to gross domestic product and create 19,200 jobs. For every £1 invested by the public sector in construction, 56p returns to the exchequer”.
I find the arguments in favour of modifying and lifting the housing cap really quite overwhelming. I recognise that my noble friend on the Front Bench has very little option but to defend the existing policy and I do not blame her for that—she is a loyal member of the coalition and that is exactly what one would expect. I therefore address my remarks to the Chancellor of the Exchequer. It will rest with him, in his Budget in a few days’ time, to convince the country that he really has a strategy for growth as well as a strategy for cutting the deficit and, eventually, reducing the debt. I cannot think of any better way for him to convince the country, and large numbers of people who are currently looking for housing of various sorts—not just affordable housing but housing they wish they could find if only it was available—that this strategy actually does mean benefits for the country. It would be something that would considerably lift the spirits of all those who are deeply concerned, as I am, about the level pattern of GDP under the present circumstances. It is a very uncomfortable position for a developed country to be in. One can understand why we have got here but, as well as reducing the deficit, we must attain a proper strategy for growth. I am convinced that my right honourable friend the Chancellor of the Exchequer accepts that.
Many policies—I will not weary the House with reciting them all—have been introduced with the objective of trying to restore growth to the economy, but here is one which evidence shows, really conclusively, could have a really quite dramatic effect on what is a hugely important area of our national life, namely the provision of houses. The building of houses has declined substantially over recent years. Although, as my noble friend has pointed out, council housing is now self-financing, the fact of the matter is that councils have huge resources but are not entitled to borrow against them, even though they would of course be subject to the general restrictions on borrowing that apply to all of the public sector—this is a special restriction that applies to local authorities and housing. I cannot see that it is justified and issue a plea to my right honourable friend at the other end of the Palace to please look at this extremely carefully. It would be a valuable addition to his armoury and would go quite a long way to convincing the country that he is genuine about searching for growth.
Lord Best
My Lords, I rise to give fulsome support to this amendment. It addresses an issue which is high on the priority list of the Local Government Association, and I declare my interest as its president. I congratulate the noble Lord, Lord Jenkin of Roding, on those remarks, which will probably have more weight than anything I say, but perhaps I could add a little elaboration to the excellent points already made.
During the passage of this Growth and Infrastructure Bill, noble Lords from all parts of the House have noted that a key element in the growth agenda is the necessity to reduce the housing deficit—the acute and growing shortage of the homes that we need—and as in all previous recessions, to use housebuilding as a key engine for economic recovery. If we returned to housing output levels of just a few years ago—even then we were not building enough—we would add 1% to GDP. That is enough to lift the country above the threshold for an officially defined recession. That is the reason why the backing in the Financial Times today came not just from the bodies representing housing providers, but the CBI and representatives of British business and industry.
At present, there are few levers to pull to get housebuilding going again. Another part of this Bill is based on the hope that allowing housebuilders to cut back on their obligations to provide affordable housing will persuade them to start work on stalled sites. I hope that that part of the Bill, following our earlier deliberations, and the Minister’s helpful clarification of the Government’s intentions, will prove fit for purpose. However, it seems unlikely to make a huge difference. It is, of course, about less not more affordable housing—fewer homes at prices or rents that the next generation can afford.
This amendment, in the names of the noble Lords, Lord Shipley, Lord Tope, Lord Jenkin of Roding and myself, goes for a bigger prize—a real opportunity to get a lot of homes built for those on more modest incomes, and almost miraculously, without recourse to large amounts of public subsidy. The amendment would allow local authorities, within constraints required by the Secretary of State, to borrow prudentially and to use the security of their housing assets. Thereby, they will make a significant local contribution to meeting housing needs and boosting the output of the construction industry.
Not so very long ago, councils were building 200,000 homes in a single year. By 1990, the annual output was down to 14,000 new homes in 1990. Today, it has dropped to virtually zero. In London, for example, just 80 new homes were built by local authorities in the years 2003 to 2010. The Government’s admirable self-financing housing revenue account reforms should now make possible a programme of an average of 5,000 new homes, from councils, for each of the next five years. This is a good start, but local authorities have the capacity to do far better.
Many councils have sites—plots of vacant land, redundant council buildings and all those unsightly garages on estates that can be demolished. They now need the opportunity to borrow and repay from rental income, and indeed to use cross-subsidy from house sales in mixed tenure developments to boost affordable housing numbers. Very often, they would achieve these results through working in partnership with a housing association or a private sector builder. What they need is the current artificial constraints on their borrowing powers for housing purposes to be lifted.
The Chartered Institute of Housing, with the Local Government Association and others, set out the case in a report Let’s Get Building: The Case for Local Authority Investment in Rented Homes to Help Drive Economic Growth, by John Perry. This shows that another 60,000 homes would be built over the next few years if the lending cap was lifted. This represents an addition of 10% on top of the private sector’s efforts and the important work of housing associations, and that would make a real difference.
Why would the Government not wish to see this modest extension of local freedoms taken forward at a time when there are so very few other ways of stimulating growth and tackling the backlog of unmet housing need? The answer is that the extra borrowing would add to the total UK public sector debt. However, since this borrowing can be comfortably repaid, it does not add to the structural deficit. Also, extra taxes, benefit savings and reduced expenditure on temporary accommodation, et al, would immediately return much of the extra spending. As London Councils and CIPFA have pointed out, the borrowing caps are unnecessary given that councils are not subject to caps on their non-housing borrowing.
Moreover, there is an anomaly here, which the noble Lord, Lord Shipley, has pointed out. In the other countries of Europe, this kind of borrowing by the municipalities is counted as trading and falls outside the definition of public expenditure used by the EU, the IMF and the OECD. By inventing borrowing rules that are unique to the UK, we are tying one hand behind our backs, as Professor Steve Wilcox of York University, the real expert in this field, has been pointing out for many years.
I understand the dilemma facing the Treasury. The problem is that raising the cap or changing the definition used in this country to mirror that elsewhere could send out the wrong signal. Even if it is entirely justified and sensible, the impression could be given that the UK is taking a more relaxed view of borrowing in the public sector. However, the sums involved are small. Council borrowing accounts for just over 6% of the total, and the estimated extra £7 billion that would be borrowed over five years, if this amendment was accepted, is a small part of local government borrowing. Managing the presentation of this change should surely be possible.
Turning to housing associations as the key providers of affordable homes has worked well but has relied on them borrowing heavily as grant levels have been cut back. Many will run out of borrowing capacity in about two years’ time and many of these so-called registered providers will not then be in a position to keep up their current modest but important level of development. We are going to need to bring on stream another source of investment in rented affordable housing. Fortunately, just such a source of investment is at hand.
This is a carefully calibrated amendment that enables the Secretary of State to be cautious in raising the cap for each local authority’s housing investment as he so determines. But it opens up the possibility of a real opportunity to get some significant growth going of the most positive sort, boosting the economy by some £20 billion in return for borrowing £7 billion, without the need for subsidy, raising taxes or burdening the next generation. I believe that the time has come for the benefits that this amendment could undoubtedly achieve.
Lord Tope
My Lords, my name is also on this amendment, which was so ably moved by my noble friend Lord Shipley and spoken to very eloquently and powerfully by the noble Lords, Lord Jenkin of Roding and Lord Best. That leaves little more to be said other than to repeat what has been said, and I shall try to refrain from doing too much of that.
The noble Lord, Lord Jenkin, referred to the letter in the Financial Times today. I have been able to supply the Minister with a copy of that letter during this debate. I think it is noteworthy to list the organisations that have signed that letter. Reference has been made to there being quite a number, but it would be useful to have the signatories on record. They are: London Councils, which represents all 32 London boroughs and the City of London; the British Property Federation; the Chartered Institute of Housing; the Home Builders Federation; the Local Government Association; London First; the Federation of Master Builders; the National Housing Federation; the New Local Government Network; the Royal Town Planning Institute; Shelter; and the Association of Retained Council Housing.
I read that out, deliberately, to get it on record and to show what a wide range of support the amendment has from local government, planning, and the housing sector. It is hard to think immediately of an appropriate organisation that has not signed the letter. There is now overwhelming support for the lifting of the borrowing cap. As the noble Lord, Lord Jenkin, said, there are overwhelming reasons for doing so and it is hard to see why we should still be resisting it. As he and I recognise, the Minister who has the misfortune to have to reply to this debate is not the person who will be in a position to do anything about this. We all recognise that we are addressing our remarks, not to the Minister who will reply in a few minutes, but to the Chancellor of the Exchequer who has a speech to make next week. He must urgently recognise this need. The noble Lord, Lord Best, has referred to the message he is concerned about sending out. The message the Government want to send out, which is shared on all sides of this House, is that there is an urgent need to get building. That is the important message from this debate. The Bill must recognise the need for more housing. It must also recognise the need for growth which is in the title of the Bill and which many of us feel the Bill is not yet doing enough to achieve.
We therefore urge the Chancellor, through the Minister who will reply shortly, seriously to consider lifting the cap or, at the very least, sending a clear and strong message that that is the Government’s intention. Reference has already been made to the international consideration that the United Kingdom is the only country in the EU not to use the internationally recognised rules. If we were to do so, it would have very little effect in terms of the message to which the noble Lord, Lord Best, referred. I understand that, standing on this side of the Chamber, praying in aid of the European Union is not always to my advantage, but on this occasion the Government should give serious consideration to that. I hope the Minister will surprise us all, stand up and say that the Government are now ready and able to accept the amendment and that the cap will be raised in the way suggested. If that does not happen today, I hope we will see a more positive move in a few days’ time in another place. If that cannot happen now—I would need to understand in the next week or two why it cannot happen now—will the Government at least reassess the borrowing ability under the current cap? Will they speed up consideration of the consultation on the use of other means, such as using local government pension funds?
The Government want to send a message that they are serious about housebuilding. They also want building to start happening and to start getting building completions. If that is to be achieved in the period of office of the current Government, it needs to be happening this year. It is urgent. The amendment proposes an internationally recognised way of achieving that. I hope the Minister can give us some indication of support and that next week we will get a better and clearer indication from the other place.
Lord Smith of Leigh
My Lords, I support this amendment and congratulate the four noble Lords who put their names to it on their contribution. I declare an interest as vice-president of the LGA.
It is difficult to find much more to say, but I want to remind noble Lords of what has been said. The noble Lord, Lord Jenkin, made the point that this is important for its economic impact. As it concerns housebuilding, 92p in every £1 is spent within the UK, making it a very effective way of recycling money within the British economy. It has a strong multiplier effect. This goes to the heart of what the Bill is about. The provision would have a great social impact, because, as noble Lords have commented, we have not produced enough social housing in this country for many years now, with great shortages across the country. We need to do more on that. This provision would achieve it.
The financial arguments, too, are strong, because the provision would be almost cost free for the Government. They would not be committing any tax revenue, but it would impact on deficit reduction. Not only would it produce the tax revenue that the noble Lord, Lord Jenkin, mentioned but it would reduce housing benefit payments, because, as people moved into social housing rather than the private sector, housing benefit payments would go down and fewer people would be stuck in temporary accommodation and so on.
The noble Lord, Lord Shipley, mentioned the bedroom tax. He is absolutely right that, in many parts of the country, the mix of housing is not right to meet the problems addressed by the tax. There will be pressure to build one and two-bedroom properties to do that. However, the bedroom tax will have a greater impact than that. It will have a financial impact on the HRAs of many authorities as people choose not to pay. In my own authority, of the 4,500 households which will have problems with the bedroom tax, more than 550 are in properties on which we have spent a considerable amount of money adapting to the needs of some disabilities. If those people have to move, we reckon that it will cost us more than £1.5 million simply to place them in a smaller property that meets the needs of their disability. Within the pressures on housing revenue accounts, the most flexible side will be new capital builds. Rather than building new houses, we might have to spend the money on adapting properties.
If we do not accept the amendment, or something similar, what will happen to social housing during the next few years? The noble Lord, Lord Tope, read out a list of organisations supporting the amendment, but the key thing is not the presence on it of the usual suspects from the local authority world or the housebuilding world, of whom you might say, “Well, they would support this kind of amendment, wouldn’t they?” but the fact that the CBI has recognised that it would be one of the most effective ways of stimulating growth in an economy which really needs it. That should give it a lot more weight.
I hope that the Government will consider this very carefully as a way forward. If they do not, I hope that my noble friends on the Front Bench will adopt it as a really good way of producing growth.
Lord McKenzie of Luton
My Lords, we return to a local authority’s freedom to borrow for the purposes of its housing revenue account, an issue that was spoken to powerfully by the noble Lords, Lord Shipley, Lord Tope and Lord Jenkin of Roding, my noble friend Lord Smith and, of course, the noble Lord, Lord Best.
We have by any measure what we must call a housing crisis in the UK. According to the Government’s own figures, the growth in households in England is expected to mean an additional 232,000 households per year for the next 20 years. Last year, 2011-12, there were just 118,000 completions, which is 31% below the peak under the previous Labour Government. Thus completions are woefully short of coping with new households, let alone the backlog, the pent-up need.
We should acknowledge that the inadequacy of new provision is not confined to this Government, but matters seem to be getting worse. Last year, there was a decrease in the number of affordable homes created compared to the previous year, a pattern replicated in the decrease in the number of affordable homes provided for social rent.
These issues are of special importance at this juncture, because the need for new homes for individuals and families, so that they can have a decent life, is matched by the need to inject some economic stimulus which will give a spur to growth and help employment. As pretty much every noble Lord who has spoken has said, we need more homes, to buy and to rent, we need more jobs, and we certainly need more growth. Rather than imposing the draconian bedroom tax, one way of dealing with underoccupation is, as my noble friend Lord Smith said, to build more homes.
The availability of finance is obviously key. We have seen a plethora of initiatives from this coalition Government but their early decision to chop some £4 billion of funding for affordable homes has undermined their efforts to make progress. Switching to an intermediate rent model at a time when housing benefit support is under attack has not improved the situation. The Chartered Institute of Housing, Shelter and the National Housing Federation provide regular updates on coalition Government progress and their November 2012 report states:
“After two-and-a-half-years, it is extremely worrying that house building remains so low and that the Government’s record warrants no better verdict than ‘no progress’ towards improving the dire state of housing supply”.
We need to look at how this failure can be addressed on a comprehensive basis, and that is what we as a party are engaged upon. Our deliberations and policy conclusions will obviously be announced in due course.
What of the role of local authorities? It is more than 20 years since local authorities were able to make any significant contribution to new build. Where small progress has been made in recent years it is Labour councils which are leading the charge. We should not overlook the very substantial improvement to the quality of local authority housing stock over the past decade. However, if we believe in localism we must believe in the role of local authorities in addressing the housing needs of their areas as enablers and direct providers.
I acknowledge, as have other noble Lords, the role that local authorities have played in being sensible about prudential borrowing arrangements. The CLG Select Committee produced a focused report on the financing of new housing supply in April 2012 which included a chapter on the role of local authorities. This report had a range of recommendations including the lifting of the cap suggested in this amendment. The Government have—in a sense—already facilitated this by completing the reforms to the housing revenue account system promulgated under the previous Government. The report’s other recommendations covered the sharing and pooling of borrowing headroom, a changed role for ALMOs, a change in the classification of debt, looking to the bond markets as an alternative source of funding for the Public Works Loan Board, doing more to release land and ensuring like-for- like replacement of houses under the right-to-buy provision. We should—and are—looking at these issues comprehensively rather than in the piecemeal fashion suggested in this amendment.
Perhaps the Minister could make it clear where the coalition Government now stand on each of those issues raised by the Select Committee. They set out their original position, but given what has happened to the lack of growth, they may have changed their stance. Like other noble Lords, we would happily support the Chancellor whenever he gets up to make his Budget speech if he sees this as a means of getting some growth.
We certainly see the opportunity for an expanded role for local authorities and the benefit of building on the changed arrangements for the housing revenue account which is the thrust of this amendment.
Lord Ahmad of Wimbledon
My Lords, I thank all noble Lords who have taken part in this debate. I can confirm that while certain matters have been addressed to my right honourable friend the Chancellor of the Exchequer in the other place, of course both my noble friend Lady Hanham and I will be consistent in the view which was expressed by the coalition Government that reducing the national deficit remains the priority. From that the Government cannot be deterred. I am sure the Chancellor, as he often does, will be following through Hansard the debates in which noble Lords have expressed their views.
Section 171 of the Localism Act 2011 provides powers to the Secretary of State to set a limit on the amount of housing debt each stock-holding local authority can hold. This was felt necessary because the self-financing settlement, successfully concluded in April 2012, gave local authority landlords direct control over a very large rental income stream and with it the potential to increase levels of borrowing beyond what we as a country can afford—indeed, far beyond what could be accommodated within the prudential code. I remind noble Lords that when the Local Government Act 2003, which introduced the prudential code, was enacted, local authorities did not have access to this extremely large income, which is now provided by self-financing. Several noble Lords, including the noble Lord, Lord Best, mentioned this scheme. This code has worked well but borrowing arising from self-financing must be affordable within national fiscal policies, which the prudential borrowing rules do not address.
Several mentions were made of housebuilding and new homes; the coalition Government remain committed to this objective. Noble Lords and others cite this amendment as a means to increase housebuilding. Let me assure noble Lords that the Government are committed to seeing an increase in housebuilding and have indeed made it easier for local authorities to build. Under self-financing we have given local authorities direct control over their rental income, some of which they may wish to invest in new homes. I remind noble Lords that the vast majority of council landlords—it is 139 out of 167, or more than 80%—have £2.8 billion of collective borrowing capacity within their settlement.
What is more, 157 authorities have taken up our offer to use additional right-to-buy receipts to deliver new homes needed in their areas, either themselves or by working with local housing associations. The noble Lord, Lord McKenzie, alluded to Labour leading the charge, to use his words, in housebuilding up and down the country. It is interesting to reflect on the 26 authorities which are delivering nearly 4,000 new homes with grant funding via the Homes and Communities Agency or the GLA. “Leading the charge” may be a slight exaggeration. If we look at those 26 authorities, three of them are Liberal Democrat and 11 are Conservative, with the remainder being Labour.
However, rather than getting into a political point here, the fact is that housebuilding is occurring. It is taking place within the limits which are being set by authorities of all political colours up and down the country. That remains reflective of the commitment that this Government have given. To put it in the wider context, in addition to that which we will deliver through the reinvigorated right to buy, 170,000 more affordable homes are being delivered between 2011 and 2015 with £19.5 billion of investment, over 75% of which is being provided by the private sector.
Several questions were raised and I will seek to answer at least some of them. Those which I do not answer, we shall of course seek to respond to in writing. Several noble Lords, including my noble friend Lord Shipley and the noble Lord, Lord Best, asked why the Government do not use the general government gross debt instead of the public sector net debt to account for housing debt—a move that would bring us into line with some of our European neighbours, as noble Lords pointed out. I remind noble Lords that the general government gross debt excludes the net debt provision of public corporations, which includes housing debt. The Government use public sector net debt as the key measure of debt because their view is that it is the best principled measure of government indebtedness. One reason for this is because the Government are generally likely to step in if public corporations cannot service their liabilities, so a focus on public sector net debt provides a fuller and more transparent picture of the Government’s total liabilities. If there are not controls over public corporations’ accrual of liabilities, it means that the Government do not have control over their contingent liabilities, which if called upon would impact on the deficit as well as on general government gross debt.
Perhaps I could pick up on a few additional points. I believe it was my noble friend Lord Shipley who referred to the impact on financial markets. The financial markets have a view on this; the Government’s view remains that we are determined to ensure that the housing debt remains affordable. The figure of £30 billion is one which is perceived and we certainly do not wish to see any rise in that figure. The noble Lord, Lord McKenzie, mentioned various schemes and the Select Committee. On the specific points that he made on them, I will respond to him in writing if I can.
Lord Shipley
My Lords, I am grateful for the unity of views across your Lordships’ House. I am very disappointed by the Minister’s response although I am aware that agreeing to this amendment is not actually within his gift today because it is a matter for the Treasury and, specifically, for the Chancellor. I hope, however, that the strength of feeling demonstrated today will be taken seriously by them.
The Minister talked about the importance of reducing the national deficit, and we can agree with that. The point is that housing revenue account borrowing, because it has been ring-fenced since April 2012, need not count as part of the national deficit. I find it strange that the Government can promote sales of owner-occupied housing, where the average debt is £111,000, but with local authority housing, which has an average debt of only £17,000, they deem borrowing against the asset of those houses to be a challenge to the national deficit. There does not seem to be any logic in the Government’s position. I make no apologies for saying so, because housing revenue accounts are now ring-fenced and should not count as public sector debt. If the Government have a concern about the borrowing plans of any local authority, they have the power now, under the Local Government Act 2003, to cap that authority. However, they should not cap an authority which can use the prudential borrowing powers effectively.
I am finding it very hard to understand what the disadvantage is of this amendment, but I am at least grateful to the Minister for having clearly spelt out the Government’s position. I know that discussions are going to continue on this matter outside your Lordships’ House, and I shall continue to press the case—I hope with the support of all sides of your Lordships’ House—for relaxing the housing borrowing cap for local authorities. In the mean time, I beg leave to withdraw the amendment.
“Controlling infrastructure: removal of redundant infrastructure
(1) This section applies to infrastructure on or under land—
(a) in a National Park or under the control of a National Park Authority or the Broads Authority or their successors in title; or(b) designated as an Area of Outstanding Natural Beauty.(2) It shall be the responsibility of the person, undertaking or authority who installed infrastructure to which this section applies to make arrangements for its removal in the event that it becomes redundant.”
Lord Judd
My Lords, I will be brief. We have been debating the importance of these new developments in the countryside in order that the economy will prosper. Technological development is sometimes faster than we believe or anticipate even now, and all sorts of changes can happen. It is entirely feasible that in quite a reasonably short period of time in historical terms, a lot of what we are talking about now will become obsolescent.
Who has the responsibility for putting the countryside back to how it was before we made special arrangements to breach our wider commitments? I hope that the Minister will have an opportunity to put forward how we can have watertight arrangements for ensuring that when projects of this kind are being costed by firms, the cost of removing the unsightly debris is part of their responsibility. One just thinks of the debris from the first industrial revolution, which despoiled vast areas of our countryside and indeed urban areas. Surely we have progressed. I would like to hear what the Minister has to say on this.
Baroness Hanham
My Lords, that was a very straightforward question from the noble Lord, and an understandable one in light of what we have been talking about: the new infrastructure. Perhaps I can give him a couple of very straightforward answers, because that is probably what he is looking for.
There are already provisions covering electronic communications infrastructure under Part 24 in the Town and Country Planning (General Permitted Development) Order. Where equipment has been installed using Part 24 permitted development rights, which I think is what we have been talking about, and the equipment is no longer needed, communications providers are required to remove it and to restore the land to its former condition or a condition acceptable to the local planning authority. Of course, national parks are their own planning authority. Failure to comply with a Part 24 condition would be a breach of planning control, and local planning authorities could use their enforcement powers to have the matter put right.
Where the equipment has been installed on private land, the Electronic Communications Code also provides for landowners to serve notices on communications providers requesting its removal. Paragraph 22 of the code specifically addresses what the noble Lord means by “redundant” equipment:
“where the operator has a right conferred by or in accordance with this code for the statutory purposes to keep electronic communications apparatus installed on, under or over any land, he is not entitled to keep that apparatus so installed if, at a time when the apparatus is not, or is no longer, used for the purposes of the operator’s network, there is no reasonable likelihood that it will be so used”.
In layman’s terms, that means that they are meant to clear it up if they do not need it any more. If the operator refuses to remove the equipment and the equipment is not lawfully on the land, the landowner is entitled to enforce its removal.
In respect of electricity underground cables and buried gas lines, it is generally more efficient and less environmentally damaging to leave any redundant equipment in place, but I presume that one must make sure that the land is returned as it would have been. In respect of overhead power lines, landowners can serve a notice under Schedule 4 to the Electricity Act 1989 to remove the equipment on their land, and the Secretary of State will consider each case on its merits.
I hope that that sufficiently reassures the noble Lord that there are provisions to ensure that what he fears might happen cannot happen and that they can be enforced. I hope that he will feel able to withdraw his amendment.
Lord Judd
My Lords, I thank the Minister for having said what she has said and getting it on the record. We shall need to monitor this extremely carefully. This could well be another of those cases where we just cheerfully hand on to future generations the costs of our immediate priorities. I am not so sure that that is always a very good idea or a very responsible way to behave. I wish that at every point we could bring home to those who are taking steps that inevitably detract from the qualitative value of the countryside that they have real financial responsibilities for putting right what they have put wrong. Perhaps at some stage, when it is clearer how things are developing, we will have to consider specific legislation in this regard. In the mean time, I thank the Minister and beg leave to withdraw the amendment.
Lord McKenzie of Luton
“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 the 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 timescales 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 McKenzie of Luton
My Lords, we had a short but harmonious debate on an equivalent amendment in Committee, which was moved by the noble Lord, Lord Jenkin of Roding, on behalf of himself and the noble Lord, Lord Tope.
In his response to the debate, the noble Lord, Lord Ahmad of Wimbledon, in expressing his agreement with the thrust of the amendment, said:
“I do not think for a moment that we are where we want to be with the city deals. This is an evolving issue”.—[Official Report, 30/1/13; col.1587.]
Of course, things have evolved further to that discussion with an announcement by the Deputy Prime Minister on 19 February of 20 more cities that were offered city deals.
We fully support the proposals of the city deals, but must express some concern that other areas risk losing out. We do not want to see two-speed regional growth with city deal areas motoring ahead and other regional cities or towns left behind. While we welcome the stated intent that the Government wish to move away from a London-centric approach, we do not want to see that replaced with a “some cities”-centric approach. It is essential that we develop a strategy that works for the whole country, rather than just part of it. We understand that the second wave of deals will enter staggered negotiations on devolved powers and funding, with the aim of these being concluded by the end of 2013. Of course, not everything can be accomplished at once, but there are recorded expressions of disquiet from some county council leaders that the impetus for negotiated deals outside urban areas is not strong.
Little in this Bill is actually focused on growth, but the prospects of greater devolution of power and responsibilities to more local leaders who are best placed to understand the economic opportunities and challenges they face is one means of addressing this omission. Adopting this new clause would require the Government to maintain momentum beyond the identified urban areas. It does not prescribe that all local councils must end up with the some deals, but they should all have the opportunity to be engaged. I beg to move.
Lord Ahmad of Wimbledon
My Lords, we discussed this issue very thoroughly in Committee, as the noble Lord, Lord McKenzie, said. I welcome the general support for the initiative. City deals are about bespoke solutions to unlocking local growth and trialling different and innovative approaches. They offer a real opportunity to drive growth across the country. The first eight cities have estimated that their deals will create 175,000 jobs over the next 20 years and 37,000 new apprenticeships.
Following the success of wave one, we opened up city deals to another 20 areas, to which the noble Lord, Lord McKenzie, has already alluded. They have submitted their initial proposals and we are working closely with these areas. However, it would not be appropriate or effective or represent value for money to roll these out to all local authorities in the same format. I have already said that these are bespoke solutions for each area.
Although city deals are not the solution everywhere, the Government recognise the importance of effective devolution. We have a strong record of commitment to a localist agenda and are working with authorities to provide the powers and support they need. Therefore, where it would make sense to make local models developed in city deals more widely available, as I have previously said, we will certainly do so.
We are giving local authorities much greater control over their own local budgets. An estimated 70% of the income will be raised locally, compared with 56% under the current formula grant system. From next April, councils will retain nearly £11 billion of business rates. This was recently initiated. I know that many noble Lords from across the Chamber have been involved in local government and that this is something for which, through their own experience in local government, they have campaigned long and hard. That is now happening. In addition, the Government intend to devolve a greater proportion of future growth-related spending based on the recommendations in my noble friend Lord Heseltine’s recent review.
Lord Shipley
My Lords, I have a question for the Minister about timing. There are three separate contributors to a policy that the amendment seeks to address. One is the report of my noble friend Lord Heseltine, to which we hope there will be a response quite soon. Separately, there is the request in this amendment that, within one year of the second round of city deals being completed, a report would be produced. That could take us through to the autumn of 2014. Then, quite separately, there was the Deputy Prime Minister’s commitment at the end of October, which I quoted in Committee, when he said of the second wave:
“while it’s too early to talk exactly about what a third Wave might look like, I very much see this as a step in a journey”.
We have all these things. It seems that there might be an opportunity for a round table discussion over the summer once some of the timing of some of these matters is a bit clearer.
Lord McKenzie of Luton
My Lords, I thank the Minister for his reply. We agree with the Government about the progress of city deals thus far. However, the amendment is about completing arrangements so that councils that feel left out at the moment can be reassured that a process is under way, a requirement on the Government to report back. It does not require the Government to produce exactly the same solution for every council; it recognises that there will not necessarily be arrangements for absolutely every council in the land. We are trying to ensure that councils that at the moment feel uneasy about the concentration on urban areas, and are feeling left out, are reassured. If the Deputy Prime Minister says that that is a step along the way, that is fine, but why not accept the amendment, which imposes an extra obligation on the Government to make sure that what has happened so far is just a step along the way?
Having heard the Minister’s reply, and not wishing to divide on an issue where we have some fundamental agreement about the core cities programme, I think the Government are unwise not to accept this fairly modest request for a further obligation to look across the piece. Accordingly, I would like to test the opinion of the House.
Baroness Byford
“Registration of town or village green: reduction of period under section 15(3)(c)
(1) Section 15 of the Commons Act 2006 (registration of greens) is amended as follows.
(2) In subsection (3), in paragraph (c), for the words from “the period” to the end of the paragraph substitute “the relevant period”.
(3) After that subsection insert—
“(3A) In subsection (3), “the relevant period” means—
(a) in the case of an application relating to land in England, the period of one year beginning with the cessation mentioned in subsection (3)(b);(b) in the case of an application relating to land in Wales, the period of two years beginning with that cessation.””
Baroness Byford
My Lords, I shall speak also to Amendment 40D standing in my name. I apologise for my voice, which is going. Amendment 40A introduces a new clause which amends the Commons Act 2006, reducing the time period from two years to one in cases where the application relates to land in England—that is, in proposed new subsection (3A)(a)—and, in relation to land in Wales, proposed new subsection (3A)(b) specifies,
“the period of two years beginning with that cessation”.
I remind the House that I am a member of the CLA. In its briefing, it considers that the two years proposed for England is too long a period. The briefing states that where people have genuine concerns—which I am sure they do,
“that they are being denied access to a site which they genuinely believe they are entitled to have registered as a village green or the basis on which they are accessing it has been changed, it need not take more than one year for the community to be galvanised into action, hold a local meeting, gather their evidence and make an application for a claim. A year is really quite a generous period of time”.
The briefing goes on to say:
“The proposal for the new map and statement procedure (clause 13) is going to involve wide publication of such a deposit including notification to parish councils and notification by email to any party having requested the registration authority to inform them of the deposit of such statements. So notification will to all intents be instantaneous”.
In Committee on 30 January this year, the Minister offered reassurance that,
“where a landowner statement is deposited with a commons registration authority, the authority will be required to publicise it”.—[Official Report, 30/1/13; col. 1602.]
My understanding is also that anyone interested in the notification can, if they give their e-mail details, have this information sent to them as soon as the declaration has been registered by the registration authority, with parish councils being notified in the same way. That being so, my amendment reduces the time limit from two years to one.
One difficulty is that if a landlord tries to sell some land to which there has been some element of public access for a period, the purchaser’s solicitors will be filled with trepidation about a potential claim coming for village green status. Generally they will insist on the use being stopped or made permissive, and on waiting two years to see whether a challenge is made before completing the purchase. This is unnecessary in the context of today’s modern communications. With further apologies for my voice, I beg to move.
Lord McKenzie of Luton
My Lords, briefly, we cannot support the amendment moved by the noble Baroness. It is a restriction on the registration of town and village greens, and we think that the balance is already moved in a restrictive direction by this Bill.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend for tabling the amendment and particularly for taking the time, despite her straining voice, to articulate the reasons behind it. I had hoped that the noble Lord, Lord McKenzie, on the Benches opposite might have shown some sensitivity in accepting her amendment. It now falls to me to reiterate the Government’s position.
The purpose of the amendment tabled by my noble friend is to reduce from two years to one year the “period of grace” within which a town or village green application can be made after the requisite 20 years of recreational use as of right has ceased. Currently Section 15(3) of the Commons Act 2006 allows a two-year period during which a greens application can be made after the end of a 20-year period of recreational use as of right. After such use has been challenged, it takes time for the local community to recognise that challenge and, if it wishes, to put together the information necessary to make an application. The key steps would be to seek out evidence in support of the application, to identify witnesses, to gather testimony and to collate and prepare evidence for submission.
My noble friend made important points about the impact of the current legislation on landowners. Her concerns are valid, and I agree that a period of a year is sufficient for users of land to gather the necessary information to make a greens application. A period of a year provides a better balance between the rights of landowners and those of recreational users of land. Therefore, I accept the amendment and I urge all noble Lords to support it.
The Government think that it is fair that those grace periods which have already started to run before commencement of the new clause should remain at two years, and we intend to include transitional savings provisions to this effect in the relevant commencement order.
Baroness Byford
My Lords, I thank my noble friend on the Front Bench. Clearly I am disappointed that the noble Lord, Lord McKenzie, did not feel able to support the amendment, but I am very grateful for the Minister’s support.
“(6A) Regulations may specify the minimum actions that the commons registration authority must carry out to bring the deposit of a statement under subsection (1) to the attention of persons likely to be affected.”
Lord Tope
My Lords, my noble friend Lord Greaves found today that he was unable to get to London and asked me to move his amendment, which with the leave of the House I rise to do. I shall endeavour to say roughly what my noble friend would have said, although not necessarily in the manner in which he would have said it.
This is an amendment to Clause 13, which inserts new Sections 15A and 15B into the Commons Act 2006. Their effect is to allow the owner of a piece of land that is not already registered as a town or village green to make a statement to the commons registration authority—a unitary or upper-tier council—which brings to an end any period during which persons have indulged as of right in lawful sports and pastimes on the land; that is, informal recreation, openly, without hindrance and without permission.
The result of making such a landowner statement is to bring to an end the right of anyone to make an application for registration of the land as a town or village green under Section 15 of the Commons Act 2006. However, under Section 15(3) of the Commons Act, there is a period of two years before that right comes to an end, in which such an application for registration as a green can still be made.
There was discussion in Committee on the question of how people would know that a landowner had made a statement under this new provision. Amendments were proposed by my noble friend Lord Greaves and the noble Lord, Lord McKenzie of Luton. In Committee, the Minister, the noble Baroness, Lady Hanham, made some very helpful commitments that,
“where a landowner statement is deposited with a commons registration authority, the authority will be required to publicise it”.—[Official Report, 30/1/13; col. 1602.]
The Minister assured the Committee that regulations will include this requirement but that specific publicity requirements are best set out in regulations rather than in the Bill. She added, equally helpfully:
“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”.—[Official Report, 30/1/13; col. 1603.]
The purpose of this amendment today is to probe further the Government’s thinking on what are “appropriate steps”. In particular, will there be appropriate publicity in the local media serving the locality in which the land is situated, not just centrally in what might be a far-flung county authority—which might just be Lancashire? Will it include a physical notice on the land itself? Will it include notification of specialist organisations such as the Open Spaces Society and the Ramblers’ Association, as well as organisations representing landowners? I hope that the Minister can give these assurances today. I beg to move.
Lord McKenzie of Luton
My Lords, the noble Lord, Lord Tope, who seems overnight to have inherited the expertise of the noble Lord, Lord Greaves, in this area, pressed the point about assurances that we seek from Ministers. My recollection corresponds with that of the noble Lord—that in Committee we got assurances from the Minister about publicity that would be given to these registrations—and it would be helpful to have some further clarification on the lines proposed.
Lord Ahmad of Wimbledon
My Lords, I thank and of course commend my noble friend for his admirable performance in imitating the noble Lord, Lord Greaves, whose contributions we are missing immensely. I understand that he is snowed in, so our thoughts are with him. I hope that he has not been caught on the motorway.
I turn first to Amendment 40B and the questions asked about publicity arrangements. We have shared a draft of the regulations with the relevant parties, which include the Open Spaces Society and the Association of Commons Registration Authorities, and we are continuing to work with them. We are also grateful for their input to date.
In terms of notice requirements and regulations and the minimum actions required to publicise these particular issues and site notices, the details of notice requirements are currently being worked up with the relevant 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. As a more general point, regarding the issue of the draft regulations being made available to noble Lords, we need to do some further work on them with relevant parties, including the Open Spaces Society and the Association of Commons Registration Authorities. I would prefer that the regulations are worked up further in conjunction with those people, with the relevant expertise, before they are discussed more widely.
Lord Tope
My Lords, I thank the Minister. I reassure the noble Lord, Lord McKenzie, that I most certainly have not acquired the expertise of my noble friend Lord Greaves overnight; indeed, I have not managed to acquire it since I learnt of this at lunchtime. I certainly claim no expertise whatever on the subject. I thank the Minister for his reply. Both I and my noble friend Lord Greaves will read it carefully. In the mean time, I beg leave to withdraw the amendment.
Lord Tope
My Lords, I rise once again to move on behalf of the noble Lord, Lord Greaves, Amendment 40C and to speak to the other amendments standing in his name in this group.
These are amendments to Clause 14 and Schedule 4, which amend the Commons Act 2006 by inserting a new Clause 15C and a new Schedule 1A. Their effect is to restrict the right of persons to apply to register land as a town or village green on the basis that it has been used by persons for at least 20 years as of right for lawful sports and pastimes—that is to say, informal recreation, openly, without hindrance and without permission.
The new provisions end the right to apply for registration if a trigger event occurs. These are basically of two kinds: first, the publication of an application for planning permission on the land, or a similar action such as an application for development consent; or the publication for consultation of a draft development plan document—that is, a document that is proposed to form part of the local development framework or “local plan”—or a draft neighbourhood plan. In this context we welcome government Amendments 42 to 45 on neighbourhood plans, which appear to deal with some of our concerns in relation to those plans.
The trigger events are set out in the schedule. However, new Section 15C(5)(a) gives the Secretary of State powers to, “specify … additional trigger … events” by order. The purpose of Amendment 40C, therefore, is to ask the Minister to specify why the Government think they need these powers and what these further trigger events might be, and what the Government have in mind to use this rather draconian power for.
The other amendments are intended to assist the Government in their stated wish to align the system for registering greens with the planning system in cases where there is a published proposal for development, either as a planning application or as a draft of part of a local plan. Unfortunately, the proposals in the Bill do not do this. The problem is that there are two separate and different systems. The system for registering greens, set out in the Commons Act 2006 and rooted in the common law, is based on the facts of the case—whether the land has been used by persons for at least 20 years as of right for lawful sports and pastimes. It is based on the facts of past use of land.
Decisions in the planning system are a matter of policy and opinion about the future use of land. It is difficult to reconcile the two—to align them—but not impossible. The way this Bill deals with the matter is not to align the two processes, but to suspend one of them—the right to apply to register a green—when a trigger event occurs under the planning system.
We accept that the Government believe that there is a problem of misuse of the system of greens registration by some people in order to try to stop development, and that there is a weight of opinion behind this view. In Committee we moved amendments to probe the extent of this and its necessity. Now we are proposing ways in which both rights can be aligned within one process—the planning process—giving the Government what they want while retaining the effective right of people to put forward a view that a piece of land is a green, and to have that properly considered as part of the planning process. The amendments we have put forward suggest ways of doing this and could be taken individually. They are not necessarily a package.
Amendment 41B is the simplest, and just seeks to incorporate within the system of development management the question of whether a piece of land is a town or village green under the criteria set out in Section 15 of the Commons Act. It simply says that, where such a representation is made as part of the development management process, this question is a material consideration. Of course, like any other such representation it may be accepted or rejected by the relevant decision-making authority. It should not slow down the process of making the decision in any significant way.
The first part of Amendment 45A says that where the trigger event is the publication of a draft development plan document, which includes a proposal for a piece of land that has not previously been in the public domain, the trigger event should not occur until three months following the date of that publication. This may occur, for instance, if a last-minute change is made to a draft development plan document covering land allocation, as a result of representations made as part of a previous round of consultation on that question, such as on a housing land availability study. It would still allow a green registration application to be made. The second part of Amendment 45A will in most cases be covered by the government Amendments 42 to 45, for which I have already thanked the Minister. However, we recognise that this may be a step too far for the Government. So Amendment 45B states that if representations are made to a local planning authority or a neighbourhood planning body, as part of the normal consultations on a local plan or a neighbourhood development plan, that a particular piece of land is a town or village green, the authority must consider them having regard to the criteria set out in Section 15 of the Commons Act.
Although the appropriate authority would not have the power to designate and register the land as a green, applying the same criteria in this way would indeed align the two processes, which is what Ministers promised that they wanted to do, whether or not a trigger event has occurred. If the planning authority considers that the land qualifies as a green it could of course then be referred on to the commons registration authority for it to consider in the normal way. We expect this would be in a small minority of cases. However, the time taken to produce local plans would mean there is time for this process to take place. We emphasise that this procedure would only apply in plan making, which inevitably takes years rather than weeks, and not in the case of planning applications and the like which should be dealt with speedily.
These amendments are put forward in a positive way, in an effort to reconcile—indeed to align—the planning and green registration systems. In the disappointing event that the Minister is unable to accept them today, perhaps he can answer the following questions. There are six. If the intention is to align the system, what consideration can the planning bodies give during the plan-making process to representations that a piece of land qualifies as a town or village green, either as part of the local plan process or a neighbourhood plan? Secondly, if a planning authority or neighbourhood planning body considers a piece of land to be a green on the basis of the criteria in Section 15 of the Commons Act, what action may it take to promote or pursue that view?
Thirdly, what precise action in the submission and consideration of an application for planning permission or development consent will constitute publication, and so constitute a trigger event? Fourthly, in the case of a draft development plan document, would the trigger event be the publication of a report to the local planning authority which included the details of the DPD; would it be the formal publication for consultation of the DPD following a council decision to publish a consultation; or when?
Fifthly, could the publication, for consultation or otherwise, of any prior reports intended to form part of the evidence base for a DPD but not forming a draft DPD as such, be the trigger event for those purposes? Lastly, can the question of whether a piece of land is a town or village green, having regard to the criteria set out in Section 15 of the Commons Act or otherwise, be a material consideration in the case of an application for planning permission or development consent?
I hope that the Minister will at least be able to provide clarity on those detailed but important questions. If he cannot do so today, perhaps we could return briefly to them at Third Reading, to allow him to do so. My noble friend Lord Greaves has promised me that, if that is the case, he will table only a simple amendment enabling those answers to be given. I beg to move.
Lord Best
My Lords, I urge caution about accepting the amendments tabled by the noble Lord, Lord Greaves. Any watering down of the Government’s proposals would be cause for concern. The Government’s propositions are supported by the Local Government Association, the National Housing Federation, Shelter, the Home Builders Federation, the British Property Federation, the Federation of Master Builders and, indeed, the Country Land and Business Association.
I mentioned during Committee the case of the 50-acre site on the east of York which, on the grounds that it had been used, without permission, for dog walking over the past 20 years was the subject of a village green proposal. The intention was simply to prevent, or, rather, to delay—as a 50-acre village green was never a realistic proposition—a much-needed mixed-tenure housing development by the Joseph Rowntree Foundation and its housing trust, of which I declare a past interest as its previous chief executive. The delays that then ensued, the legal fees and the staff time over several months were costly and wasteful. The objectors to the housing scheme—which, I am delighted to say, is now being built, and a wonderful development it is too—were simply taking advantage of well intended legislation that, sadly, lent itself to such abuse.
The Government’s intent, which, I believe, their proposals will achieve, is that false claims are swiftly revealed. It would lead to all genuine registrations receiving fair and robust consideration and maintain the primacy of the democratically elected local plan. I urge caution in accepting the amendments tabled by the noble Lord, Lord Greaves.
Lord McKenzie of Luton
My Lords, first, I say to the noble Lord, Lord Best, that we acknowledge that the system left itself open to abuse. The issue is whether what is before us produces the right balance. I say to the noble Lord, Lord Tope, who seems to be warming to his task in substituting for the noble Lord, Lord Greaves, that we might wish for many repeat performances—do not tell the noble Lord, Lord Greaves, that.
I do not propose to speak to Amendment 41A. Reviewing what we did in Committee on that, I think it was covered. As for Amendment 40C, I think that the noble Lord, Lord Greaves, has an appropriate probe there to understand the circumstances in which additional triggers or terminating events might be promulgated by the Secretary of State, although I note that there is a subsequent government amendment which would have that matter dealt with by the affirmative procedure. The noble Lord, Lord Greaves, has an ingenious formulation in “material consideration”. That is an interesting concept. I am not sure that I want to get into the detail of the six—or was it seven? —questions posed. I look forward to the Minister’s response.
Lord Ahmad of Wimbledon
My Lords, once again, I thank my noble friend for his sterling performance as my noble friend Lord Greaves. My noble friend Lord Tope has articulated eloquently the concerns that my noble friend wished to raise. I also thank the noble Lord, Lord McKenzie, for indicating that he will not press Amendment 41A, and note his comments.
Turning to Amendment 40C, one of four amendments tabled by my noble friend Lord Greaves, we have debated the order-making powers previously, and why they are required, so I will avoid going into too much detail. My noble friend Lady Hanham explained in Committee that the Government propose to bring other planning procedures within the scope of the reforms for registering greens: local development orders, neighbourhood development orders and Transport and Works Act orders. My noble friend also explained that we would consult on our proposals. We have also, as my noble friend said that we would, responded positively to the recommendation of the Delegated Powers and Regulatory Reform Committee that new Section 15C(5) should be subject to the affirmative procedure. Consequently, Parliament will have the opportunity to scrutinise any draft order proposed in the light of public consultation.
Furthermore, my noble friend Lady Hanham pointed out in Committee the need for additional terminating events to ensure that all outcomes in plan making are covered. We want to avoid the situation where an exclusion on applications to register land as a green fails to lift even when there is no longer an active development proposal. That would be contrary to our policy and unfair. Amendment 40C, tabled by my noble friend Lord Greaves, would stop such change from being made without requiring further primary legislation. That cannot be practicable.
I turn to the proposed new clause in Amendment 41B. I appreciate why my noble friend Lord Greaves wants to ensure that the potential value of land as a green will be considered as part of the planning process, but there is no need for the amendment to secure this intention. In considering an application for planning permission or for development consent, the recreational value of the land concerned is already capable of being a material consideration. Material considerations will relate to the development and use of land in the public interest.
I am sure that the House wants to move on, and I will turn specifically to answer at least some, if not all, of the questions raised by my noble friend Lord Tope. One question that he asked was, if a planning authority or neighbourhood planning authority feels that a land should be a green, what should it do? Where that is raised with a planning authority or the neighbourhood planning body, they should bear that in mind when considering a planning application or taking forward their draft plan. If they want the land to be kept open, they should not be supporting development on the land. If there is no development proposal, residents can also apply to register the land as a green.
My noble friend raised a couple of questions about trigger events. First, what would constitute a trigger event? Only the courts can give an authoritative interpretation of statute, but the intention in respect of the applications for planning permission and development consent is that a trigger point takes effect at whatever is the earliest of the required publication steps. The power in Clause 14(1)(3) could, if necessary, be used to make amendments to clarify when any of the trigger or terminating events are to be treated as having occurred. He also asked about trigger points arising in respect of draft development plan documents. For local plans the trigger point is when a draft plan is formally published by the local planning authority for consultation prior to being subject to an independent examination. The local community will then have an opportunity to make representations in support of or in opposition to proposals in the draft plan and to engage in the examination process.
Finally, a question was raised on the publication of any prior reports that are not a draft development plan and whether they could be a trigger event. The short answer is no. The trigger event refers only to the publication of development plan documents. The publication of anything that is not a development plan document would not constitute a trigger event. If there are a couple of areas that perhaps I have not answered in the detail that my noble friend asked for in representing my noble friend Lord Greaves I shall seek to clarify that before the next stage. However, on the basis of the assurances and responses I have given, I hope that my noble friend is prepared to withdraw his amendment.
Lord Tope
My Lords, I thank the Minister for that reply. I reassure the noble Lord, Lord Best, that it is not my noble friend’s wish to water down these provisions, and it is most certainly not my wish to do so. I am content with the provisions as they are. However, I think that my noble friend made clear that his intention was to try to find a way to align two different systems here, and he has gone into characteristic detail on how to try to do that. As he said in what he described as his “more than usually concise speech”, he was suggesting ways in which to achieve this. Both he and I will read with care what the Minister said. I am grateful to him for the answers that he has given thus far. In the mean time, I beg leave to withdraw the amendment.
Baroness Byford
Lord Ahmad of Wimbledon
“( ) In that Act of 2006, in section 59 (orders and regulations)—
(a) after subsection (3) insert—“(3A) A statutory instrument containing an order under section 15C(5) may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament.”, and(b) in subsection (4), after “subsection (3)” insert “or (3A)”.”
Lord Ahmad of Wimbledon
My Lords, I will speak to Amendments 41 to 45 to Clause 14 and also to Amendments 54 and 56 to 58 to Clause 31. These are government amendments in the name of my noble friend Lady Hanham. I will briefly set out their purpose, if I may.
The power in proposed new Section 15C(5) to be inserted into the Commons Act 2006 allows the Secretary of State to add, amend or omit trigger or terminating events in the new Schedule 1A to the Act. Amendment 41 would make this power subject to affirmative rather than negative procedure. This amendment implements in full a recommendation of the Delegated Powers and Regulatory Reform Committee. It means that Parliament will have the opportunity to debate any draft order, including the proposed order that my noble friend Lady Hanham referred to in Committee and on which we intend to consult.
Amendments 42 to 45 are minor technical amendments, concerning the text in Schedule 4 on the trigger events in relation to neighbourhood plan proposals. The amendments rectify an incorrect statutory reference and make a number of consequential changes to the wording to provide clarification. The intention regarding this trigger event is unchanged and is, as my noble friend Lady Hanham explained in Committee and was previously set out in Committee in the Commons, that the intended trigger point is the formal publication of a neighbourhood plan proposal by the local planning authority. This is an opportunity for the local community to make representations on the proposals that the qualifying body—be it a town or parish council or a neighbourhood forum—wants to have examined.
Amendments 54, 56, 57 and 58 bring forward the commencement of Clause 14 and Schedule 4 so that they would come into force at Royal Assent. Perhaps I may briefly explain why we are making this change. We are reforming the process for registering greens to give confidence that planning decisions being taken to promote growth will not be undermined by an application to register land as a green. This will help local communities and their councils which are encouraging sustainable development in their area, including those promoting affordable homes and new job opportunities. Without this amendment, there would be continuing uncertainty for two additional months. This is not helpful to anybody and this amendment would remove that uncertainty. I therefore beg to move Amendment 41.
Lord Ahmad of Wimbledon
“Development orders: development within the curtilage of a dwelling house
(1) Section 61 of the Town and Country Planning Act 1990 (development orders: supplementary provisions) is amended as follows.
(2) After subsection (3) insert—
“(4) Any development order or amendment to an existing development order made after 1 January 2013 that grants planning permission for development within the curtilage of a dwelling house shall not apply within the jurisdiction of a local planning authority until that authority has resolved that it shall.””
Lord True
My Lords, I will not be moving Amendment 46AA; it represents an attempt to offer a compromise to the Government in discussions on this which, sadly, was spurned.
The effect of Amendment 46 is simple. The Government will still be able to—as they have said they want to—impose a doubling of rights to build without planning permission in back gardens up to 6 metres for terraced houses and 8 metres for detached ones. However, under my proposal, local councils would be able to take a simple, quick decision on whether this change is appropriate for, and beneficial to, their local area. In short, it is a localist idea, which is what we have had commended to us from our Front Bench, quite rightly, for a long time.
It is important that the House understands that this does not stop the Government enabling a general extension of rights. It does not affect any other change in permitted rights that the Government propose, only the issue of controlling large developments in gardens—no more, no less. I serve as an elected council leader and I again declare that interest, so I speak not from some romantic attachment to back gardens, about which I spoke on another day—although I do not actually think that that is an ignoble cause—but on the basis of 20 years’ experience in these matters and with some part in recent discussions on them. In those discussions, like others, I thank my noble friend Lady Hanham on the Front Bench for her readiness to engage and to listen in discussion. She is absolutely exemplary. Sadly, however, I have not found that listening characteristic everywhere and it has to be everywhere for it to mean anything.
I was elected in 2010 on a programme that included a promise to protect local back gardens from overdevelopment. The same promises were given by my Member of Parliament and our Liberal Democrat opponents. Commitments to restrict garden grabbing, as I have said on another occasion, were given in our two parties’ manifestos and also in the coalition agreement. I read those out on another occasion—they were clear and specific. As an elected representative I see it as my duty to try to keep promises that I made when we sought election.
It has been put to me that garden grabbing only meant new development but, in my view, it certainly should embrace the loss of half a back garden and potentially more to big new extensions, which is what the Government’s proposal would enable. The people I represent who wake up to find a 6 or 8-metre extension being shoved up outside their back window and who have lost the chance to have any say in the matter will not be impressed by small-print arguments about what promises meant, nor frankly would many of the people who have supported this. I have been encouraged and heartened by the many people who have written and e-mailed in support of the LGA, supporting the stand first taken by my borough and the borough of Sutton, and I am very grateful to see my noble friend Lord Tope here.
I wonder where exactly this idea of doubling permitted development in back gardens sprang from. As I have demonstrated, it was not in any manifesto—quite the reverse. It certainly did not come from your Lordships’ long debates on planning. It was never mentioned. It has not come from any great public call for action. Indeed, as the LGA has demonstrated comprehensively, most extensions outside permitted development are considered swiftly and most are agreed, but after the normal process of mediation and sometimes modification between neighbours that the planning process deliberately and sensibly allows. This idea just tipped out all of a sudden with a ragbag of other ideas, with no prior notice at all, and a hasty six-week consultation was timed to finish on Christmas Eve. We have seen no formal results from or formal response to that consultation, yet Parliament is expected to opine on planning. I rather suspect that if there had been overwhelming popular backing in the consultation, we would have seen the detailed response long ago. I certainly have not seen it. In short, there is no public call for this change. We have seen no evidence in favour of it and no analysis of the potential effects of making it. I submit that this is no sensible way to make legislation that will affect the home lives of many people in Britain.
Lord Tope
My Lords, I support my noble friend’s amendment. He referred to the fact that he is, in another life, the leader of Richmond Council. For many years, I was the leader of the council in the London Borough of Sutton and, indeed, am still a councillor there. For all those years there has been a usually friendly rivalry and some competition between the two authorities. Certainly within my party, Richmond seems to alternate every election between who is going to run the council; I am pleased to say that the electors of Sutton have remained more consistently true, at least for the past 27 years, as to who would run the council. That competition continued back in the summer, when the Government made their announcement, as to which of our authorities would be the first to condemn it. I think on that occasion the noble Lord, Lord True, won the competition but probably only by hours rather than by days.
We are at one in finding the Government’s proposals incomprehensible and in condemning them roundly. What are they for and what are they seeking to achieve? That condemnation is obviously not confined to two London borough councils but is, as far as I am aware, universal throughout local government, regardless of which party happens to be in control of the council. This is a unified view, across local government, which is very strongly against the Government’s proposals.
That is due first to incomprehension. This is being put forward in the context of growth, but does anyone seriously imagine, as the noble Lord has explained very well, that allowing extensions into back gardens will make a significant difference to the growth of the nation? Of course it will not; it is laughable. What it will bring about a considerable growth in is neighbour disputes. I can think of no single measure more likely—indeed, one might say more designed—to set neighbour against neighbour, particularly when they find that there is actually no court of arbitration. They would expect the local planning authority to be able to hear both sides of the case and to make a judgment, as with the normal planning process. When neighbours find themselves in this position and discover that that power has been taken away from the local planning authority, and with it therefore their right to make representations to anyone, I can think of little better designed to cause neighbour upset and to damage community cohesion, for no purpose whatever. I am very keen to support the noble Lord, Lord True, on this.
The noble Lord made reference to the Government’s explanation that Article 4 directions can deal with this. As he has rightly said, that is a slow, expensive, bureaucratic and cumbersome route, which is unlikely, frankly, to make very much difference at all. He is quite right and I support him wholeheartedly. We had felt until recently that the Government were at least starting to listen—commendably so, and we have said much of that today—to move and to be willing to search for compromise. Therefore, I am very disappointed to learn from the noble Lord, Lord True, as he said when introducing this amendment, that his attempts at compromise—that is what this amendment is; I do not think he or I would pretend it is what we want—have been “spurned”. That was his word. We are very disappointed with that. I hope that when the Minister replies, we can get at least some comfort from him that spurned is too strong a word, the debate and argument are still open and it is not going to be as bad as it presently seems.
However, I certainly have no hesitation in supporting my noble friend and the leader of Richmond Council, knowing that both London borough councils will, for once, be united between the two parties in agreeing with both of us.
The Earl of Lytton
My Lords, I support the thrust of this amendment because my professional work puts me at the sharp end of the fall-out from precisely this type of policy. As the noble Lord, Lord True, has said, we risk in effect a flip-flop from avoiding the regulation of the colour of front doors and replacement windows to no control at all. If ever there was an example of parliamentary process being a blunt instrument, I suspect this is one.
I have problems with this area of government policy in its cumulative effects. We seem almost to have a good cop Government wishing to deregulate, which I can understand and sympathise with, and conferring additional free development rights on householders. However, I am bound to say that I do not see the noble Lord, Lord True, and the LGA in the opposite camp of bad cop either. One of the great virtues of planning policy, among all the things that I, we and clients regularly curse about the intrusiveness of it, is that it has actually protected the built and the semi-natural environment of the urban and rural landscape. It has done so in such a way that our European neighbours come over here to see how we have managed to do it all the years since the post-war era when the first planning Acts came in.
The real possibility here is the increasing urbanisation of domestic back gardens and the materially increased density of that whole built environment. That is not without consequences, as the noble Lord has consistently pointed out on this and previous occasions. I recently attended a number of meetings at the Minister’s old stamping ground, the Royal Borough of Kensington and Chelsea, which has a basements working group. Your Lordships might wonder what basements have to do with all this, but I can tell you that a lot of basements are constructed in back gardens, so the thing is not entirely without its relevance.
A number of things came through there which I think were very interesting and that have to some extent informed my views. First, there is a risk that open space between buildings for light, air and privacy might be compromised, and the only thing that stands between the general rights of permitted development and getting a fair balance between neighbours is some intervention by the local planning authority. It is a matter of scale and proportion, but of course it has visual and amenity consequences. Beyond that, in valuation terms, the mercantile gain for one person who happens to construct their particular scheme might lead to the erosion of the visual appeal and consequential value of neighbours’ property, unless, as I say, they are carefully regulated and kept in fair proportion.
Technically—this is where I pick up the point that the noble Lord, Lord Tope, made—it brings additional pressures on the limits of property ownership, particularly in relation to boundaries. We already have a substantial amount of that in the more expensive parts of inner London boroughs. Property values as an impetus already cause serious friction between neighbours. I know this because a good deal of my professional work relates to neighbour disputes.
That might not matter if we had a land registry title plan that was a precise guide to ownership. Unfortunately, such plans do not provide that. Even in an urban area of 1:1,250 mapping scale, there is an error factor, as set out by the land registry own guidance, of plus or minus 1 metre on the ground either way. On a plan of that scale, that represents 0.8 millimetres thick, plus or minus. It is no idle suggestion, therefore, that this might increase neighbour disputes, because the process of establishing precise ownership is sometimes clear but sometimes very far from clear, and the registered title does not help.
Lord Elton
My Lords, I am really rather appalled by what the Government are proposing and largely reassured by what my noble friend is proposing. I want merely to ask my noble friends on the Front Bench and those in my party and the Liberal Democrat party in government to consider for a moment what a very large number of people live in houses with small narrow gardens bang up against people next door, either on one side or both.
A neighbour has enormous power over the comfort and convenience, and indeed the property value, of the people on either side. Throwing up something that looks into your garden, blocks the light from your flower-beds or makes you feel in some way claustrophobic can actually blight people’s lives. It is essential for the Government to realise that a great number of people— I declare an interest; I am one of them—live in circumstances where we are all in the hands of our neighbours as regards our comfort and the “quiet enjoyment” of our property, as the common law says.
As the noble Earl, Lord Lytton, very eloquently put it, when the air, light and privacy of one’s life are at the disposal of one’s neighbour, there must be some ready course of arbitration or judgment that is in one’s power to initiate, is not cripplingly expensive and does not take for ever. It seems that my noble friend is offering that and the Government are not. Therefore, there is no question who I would support.
Lord Trefgarne
My Lords, I apologise to your Lordships that I was not in my place when my noble friend Lord True opened this debate. I absolutely support what he is proposing in this amendment. I think these proposals are little short of outrageous and, in the area where I live, will result in a change in the control of the local authority.
Lord McKenzie of Luton
My Lords, I have added my name to this amendment and we are wholly supportive of it. We have heard from the noble Lord, Lord True, a devastating critique of the Government’s proposals, strongly supported by the noble Lord, Lord Tope. We have heard the practical and professional considerations from the noble Earl, Lord Lytton, about what they mean in practice. Indeed, the noble Lord, Lord Elton, described a typical garden, and that is exactly the situation in large areas of Luton that were built in the early part of the previous century and sometimes before. The noble Lord is absolutely right that neighbours can impact dramatically on the quality of life, and the Government’s proposal for permitted development rights is actually facilitating that.
In many ways this is a very modest amendment, more modest than that which my noble friend Lady Donaghy is going to move in a moment. It focuses only on development within the curtilage of a property. It operates from January 2013 and is not proposed to be retrospective to any significant degree, and it is consistent with the principles of localism, which seems to be a core matter.
The noble Lord, Lord True, and others referred to what will undoubtedly again be the Government’s defence on this: Article 4 directions. We will come on to that again when we debate the following amendment. Is it still the position that the Secretary of State’s general approach to making an Article 4 direction, as set out in paragraph 4.23 of planning policy guidance note 15—I am not sure that policy guidance note still exists or what may have replaced it—is that,
“permitted development rights should not be withdrawn without clear justification”,
such as where a real and specific threat of development is being carried out that would damage an interest of acknowledged importance? If those are the criteria by which the Secretary of State acts, that would not be a defence in many situations that have been envisaged. That reference may be slightly out of date, but it would be good to hear something more up to date from the Minister.
At the end of the day this does not prevent anybody who wishes to have an extension in the rear garden from seeking planning permission in the normal way. Perversely, if permitted development rights had been withdrawn by an Article 4 procedure, you could not get fees for that planning application. However, it is perfectly possible that people will go through the normal process, so this is not denying anyone any rights.
It is a pity that we come to this at this hour. I am not sure what the noble Lord is going to do, but it would be well worth testing the opinion of the House when it is full because I think there would be very strong support for the noble Lord. I hope that at the very least we will hear from the Minister that the Government will take away the tenor of this debate and agree to look at the issue before Third Reading.
Baroness Hanham
My Lords, I hear what the noble Lord has said and what my noble friend has said in moving the amendment. I appreciate very much that noble Lords wish to make sure that local authorities are able to adapt national permitted development rights to their own circumstances. Indeed, it is an important element, which we recognise, that national development rights have an effect on different areas, urban and rural. The noble Lord did not speak to Amendment 46AA, which would be the other side of the coin: opt in or opt out. Therefore, I will address only Amendment 46.
There has been some tweaking, with noble Lords saying that I will use Article 4 directions in my response. Not surprisingly, I am going to do so. As the noble Lords, Lord True and Lord Tope, will be well aware, an Article 4 direction can already be introduced to remove specific permitted development rights in a defined area. Those areas can be very small: only a few houses, a conservation area, one street or two blocks of houses. They can be tailored in a way that puts a permitted development into a defined area.
There was a suggestion that if an Article 4 direction was put forward it had to be submitted to the Secretary of State for a decision. It does not have to go to the Secretary of State for approval. The Secretary of State would intervene only where the power was being used unreasonably by the local planning authority. One would hope that that would never take place as the planning authority would have to consult local residents before implementation. It is not sensible just to wipe out the Article 4 directions. It is one of the lines that local authorities can take and we would expect them to do so where necessary.
With regard to the proposed permitted development right and its effect, we would expect neighbours to talk to neighbours about this and to have some interest in what they are going to say. Local authorities are also able to put conditions on permitted development if it is thought to be justified.
Lord Elton
Such conversations very often do happen and they result in almost open warfare. They do not often result in amicable decisions such as “Okay, we will not build a second storey because you do not want it”. The pressures of the benefit to the developer overcome the priorities of good neighbourliness.
Baroness Hanham
My Lords, my noble friend said “benefit to the developer”. The development is limited to the curtilage of the building and the benefit is to the person who owns the property and who wants to extend it, for their own use, to a limited extent—to have a new kitchen or whatever they need. I hear what my noble friend says but, first, the amount is limited to the curtilage and, secondly, it would be expected that consultation would take place.
There are many people who wish to do smallish extensions to their houses. The noble Lord, Lord True, suggests this is “garden-grabbing” but it is their garden and the garden-grabbing we have talked about in the past has been new developments in back gardens which are clearly not just modest extensions to people’s houses. It is probably not very good to deny people the benefits of being able to extend their houses somewhat.
Lord Campbell-Savours
I am sorry, but this is just agony. What are the origins of this proposal? It was not in the coalition manifesto, it was not in the Conservative manifesto, it was not in the Liberal Democrat manifesto. Where has it come from? What are the origins of this nonsense?
Baroness Hanham
My Lords, this policy is being put forward to extend the localism rights that we have been moving towards across neighbourhood plans, community budgets and everything that brings more control and power into the hands of local people. This is just an addition to that to make it more helpful and constructive for local people to manage their own affairs.
Lord Trefgarne
My Lords, I am afraid my noble friend is living in a world of her own. I will show her some correspondence between me and one of my near neighbours relating to a proposed development which ended up in the High Court. In that case, we did not have the amicable conversations which she imagines.
Baroness Hanham
My Lords, I hear what the noble Lord says. Consultation on this matter closed in December. We have had 1,000 responses and these will be available before we get round to secondary legislation which will be in a very few months, presuming that the clause is accepted by both Houses.
Lord McKenzie of Luton
Has there been some analysis of the consultation thus far, and, if so, might we get at least a first cut of it before Third Reading?
Baroness Hanham
My Lords, I think not. I have been told that it will be available before secondary legislation.
Lord Adonis
What is the big problem about analysing 1,000 responses in time to allow your Lordships’ House to see them before we proceed to Third Reading?
Baroness Hanham
My Lords, they will be ready before secondary legislation. If they can be ready at any stage before that I will make sure that they are, but I am advised that it will be at the secondary legislation stage. I rely for my response—
Lord Trefgarne
My Lords, when does my noble friend propose to introduce the secondary legislation?
Lord Ahmad of Wimbledon
I remind noble Lords that we are on Report and there are specific rules which should be borne in mind.
Baroness Hanham
My Lords, I thank my noble friend for that. The consultation will be available within the next few months, probably by May, as will the response and the secondary legislation.
I rely, in my response, on the ability for local authorities to use Article 4 directions. It is perfectly reasonable for them to do so, but it is also reasonable for people who own houses to wish to extend them and to do so without having to go through the procedures of planning applications when the extension is relatively modest. I hope noble Lords will feel able—
Lord Hunt of Chesterton
Is there some limit to the height? In many gardens, the most important things are wind and lighting and you can occlude the sun in your neighbour’s garden. We are hearing an extraordinary speech. A neighbourhood is a set of houses, built and designed in a way that we all understood when we bought those houses. If one person wants to push out, all the other people will push out and it will have an extraordinary effect on neighbourhoods. This will be a social revolution. What survey did the Government do of people around the country? Did they just listen to some bureaucratic process? Have there been social surveys across the country? I do not believe there have been. This is a change to the whole British way of life. I have been a councillor and I have seen these effects.
Lord Ahmad of Wimbledon
My Lords, I have to remind noble Lords that we are on Report, not in Committee. As your Lordships know, we are a self-governing Chamber. As the Companion states, there are specific criteria we need to observe and we owe the Minister that level of respect in allowing her to finish her response. If noble Lords wish to push this to the vote, that is a matter for them. At this time, we are on Report and I would ask noble Lords to respect that.
Baroness Hanham
The answer to the question about the extent is that it is limited to a single storey and within the curtilage of the building.
I have reminded the House that a consultation has taken place and that we will see the results before secondary legislation, that there is the question of Article 4 directions being used and that it is, and should be, the right of citizens to extend their houses if they wish.
Lord McKenzie of Luton
Before the Minister sits down, she has not dealt with the point about the criteria that guide the Secretary of State’s engagement with Article 4 directions, in particular planning policy guidance note 15—or its replacement if it has been updated—which states:
“Permitted development rights should not be withdrawn without clear justification such as where there is a real and specific threat of development being carried out that would damage an interest of acknowledged importance”.
If those are the criteria that guide the Secretary of State in these matters we would want to know about it and certainly know about it before Third Reading.
Baroness Hanham
My Lords, I do not have a response to that. I would need to take advice on it. If I can come back on that aspect before Third Reading I will.
Lord McKenzie of Luton
Will the Minister come back at Third Reading if she is not able to do so beforehand?
Baroness Hanham
My Lords, I am advised that there has not been an update, so I presume that that guidance would be followed. Let us bear in mind, too, that the Secretary of State does not have to approve. He will take an interest only if he wishes to. With those explanations, I hope that the noble Lord will withdraw his amendment.
Lord True
My Lords, I thank all those who have spoken in the debate, which has been a little one-sided perhaps. I thank my noble friend on the Front Bench. It is a difficult task to defend a policy that manifestly, from the body language and from what people have said, has no support from anybody present in this House. I do not hold her responsible for that. The noble Lord, Lord Campbell-Savours, asked where the policy had come from. If he reads earlier discussions on this, he will see that I have expressed a shrewd suspicion as to the answer: some might say the uber-moderniser tendency—indeed, I think that that is self-description.
The noble Lord, Lord McKenzie, for whose support I am grateful, is quite right that people will still be able to build extensions, but, as the noble Lords, Lord Trefgarne and Lord Elton, said, as well as the noble Earl, Lord Lytton, in a striking speech which I hope officials will study carefully, they will simply have to negotiate with neighbours, which is part of neighbourliness and living together in a society. It seems in life that many matters depend on which end of a telescope you look in. The Government are talking about extending rights, but they are taking away, if you look in the other end of the telescope, a major right from those who are neighbours of people who want to build very large extensions. I repeat what I said: in some of the small, terraced communities which I and others represent, those extensions in some cases could be more than half the back garden if you take the curtilage of the front garden into account. This is major stuff.
One of my many eccentricities is that I used to spend a lot of time when I was young reading Livy, the Roman historian. The third decade of his books, about the wars against Hannibal, relate that, after three crushing defeats, the Roman generals, Fabius and Claudius Marcellus, although the latter was a little more vigorous, did not take on the Carthaginian field army until the Romans thought that they had the balance of forces in their favour. Despite the overwhelming opinion in the House being in favour of this position, I do not believe that something analogous is likely to happen at this moment. I want to study particularly carefully the point made by the noble Lord, Lord McKenzie, about Article 4, which is critical. I reserve the right to come back to it at Third Reading, perhaps looking at Amendment 46AA. We need to clarify how local authorities opt out. It is true that the Secretary of State does not have to approve, but the Secretary of State has the power to cancel or modify an Article 4 direction at any point. That is absolutely germane to this, setting aside the other points that I made.
I do not want noble Lords to think that this will be the end of the matter. I have had some experience in the usual channels in this House. There will many opportunities to bring this matter back before your Lordships which I shall explore, including on secondary legislation. I therefore hope that the Government will listen to the mood of your Lordships’ House. What is the point of your Lordships’ House if it does not have the opportunity through its debates as well as its Divisions to express an opinion?
I hope to hear further clarification at Third Reading on how Article 4 will actually work as well as more about the consultation—11 weeks to analyse 1,000 answers is quite a long time in my book. The leader of the council could do that, let alone some of the good people I employ. With the promise that I do not intend to go away on this matter, I beg leave to withdraw the amendment.
Baroness Donaghy
“Planning permission required for development
(1) The Town and Country Planning Act 1990 is amended as follows.
(2) In section 57(3), after “Where by a development order (or a local development order” insert “issued by the local planning authority”.
(3) After section 57(3) insert—
“(4) 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.(5) 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.(6) 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.””
Baroness Donaghy
My Lords, in moving Amendment 46A, I make it clear that I am in full support of Amendment 46 moved so eloquently by the noble Lord, Lord True. If the first platoon of True, Tope, Lytton, Elton, Trefgarne and McKenzie came crashing against the citadel, I do not have too many illusions about how my amendment, which is much more radical and not in the least bit modest, might be faced by the Front Bench. Nevertheless, I shall persevere because the issue is of such importance. I have been in the House for only two-and-a-half years, but I have never seen such a measure of frustration in the House as I did on the previous amendment, so I think it is a topic that is worth pursuing.
I am aware that my amendment represents a significant, but perhaps long overdue, change to the planning system. It is clear that it could not be introduced without considerable consultation, and I fully acknowledge that any frameworks for proposed local permitted development could be produced only after thorough consultation at all levels.
The argument used against the proposal in Committee was that it would produce a postcode lottery and that local government already had the tools to restrict or relax nationally set permitted development by using Article 4 directions and local development orders, or LDOs.
The phrase “postcode lottery” implies something completely random, which this need not be. It is quite correct that there would be local differences—that is, after all, what local government is supposed to be about—but there is no reason why non-statutory guidance could not be issued by government giving local authorities recommended criteria when setting out and consulting on a local permitted development framework. When it comes to siting broadband infrastructure, the Government consider non-statutory guidance to be sufficient, so why not here?
Article 4 and LDOs are no longer fit for purpose, as has already been mentioned by several speakers on the previous amendment. Local authorities must give one year’s notice before they can use Article 4 directions to avoid high levels of compensation. They are time-consuming and unnecessarily bureaucratic as well as being expensive. Although this is contested by the Department for Communities and Local Government, these devices are rarely used by local authorities. Indeed, the LGA has indicated that it is not aware of any evidence demonstrating widespread use of Article 4 and LDOs.
Amendment 46A would localise permitted development, allowing planning authorities to tailor individual frameworks for their own local areas so that they supported economic growth in the most appropriate and sustainable way. This could lead to a boost in development overall and would be a localist measure. Democratically elected representatives, accountable at the ballot box, would be given more power. This, if nothing else, would be more of a reflection of the title of this Bill than the discussion that went on earlier. I beg to move.
Lord McKenzie of Luton
My Lords, in the circumstances, I shall speak just briefly and thank my noble friend Lady Donaghy for introducing the amendment and broadening the debate about the importance of localism and why permitted development rights should be qualified or subject to local authorities’ determination.
I want to go back to Article 4, which permeated our discussions on the earlier amendment and will perhaps do so again now and at Third Reading. Article 4 directions can certainly be cumbersome and bureaucratic. There is not just one type of Article 4 direction. As I understand it, there are three types of article for direction: one affects only listed buildings, one affects dwelling houses in conservation areas and the other affects other properties. That latter category has generally been used to cover commercial property in a conservation area and is generally used outside a conservation area for restricting the use of temporary buildings.
If Article 4 is to be prayed in aid in respect of this amendment, as it was—at least in part—in respect of the earlier amendment, I think we need much more detail as to how it operates. I understand that whether it is an Article 4(1) or Article 4(2) direction, the routes and processes that have to be adopted are different. We need to understand that more effectively and we need greater clarity on the role of the Secretary of State and the guidance or principles which should govern how the Secretary of State approaches Article 4, whether using Article 4(1) or Article 4(2) directions. Given the hour, I simply support my noble friend and thank her for moving this broadened amendment.
Baroness Hanham
My Lords, I thank the noble Baroness, Lady Donaghy, and the noble Lord, Lord Tope, who has not spoken to this amendment but whose name has been added to it. It has the admirable aim of giving local authorities the power to decide how to adapt the nationally set permitted development and local development orders.
The noble Lord asked me for details about Article 4. I say straight away that I do not have them on me. If the noble Baroness is not going to press her amendment today, I shall be very happy to see that answers to the questions that have been asked are available before Third Reading in terms of the interpretation of Article 4 and how it can be used by the Secretary of State. I think that might be helpful under the circumstances as I rely again on the fact that local authorities can use Article 4 directions, particularly where the aim is to extend permitted development rights locally. They can be used with local development orders, and local development orders provide a quick and simple way to do this.
It is correct, as the noble Baroness said, that they have not been widely used. They were introduced of course under the last Administration but they are beginning to be used. I have a note here of where a number have been used to bring into control extensive changes of use for ground-floor units, for example, or where local development orders have been granted to extend household and permitted development rights in a village. Therefore, they have their uses and they are certainly beginning to move forward. Local authorities are beginning to recognise their benefits and that they 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, as we speak, local development orders are contributing to growth by helping to speed up the delivery of everything from small domestic alterations to major industrial development. They can be used pretty widely across the piece.
The noble Baroness has given an outline, perhaps, of what she wanted to deal with. If she is not going to press the amendment today and is likely to return to this matter at Third Reading—which I think she would be entitled to do—I will make sure that the information about the Article 4 make-up is made available. I hope that the noble Baroness will withdraw her amendment.
Baroness Donaghy
I thank the Minister for her response and my noble friend Lord McKenzie for his support. I will withdraw my amendment. I just wanted to underline the fundamental difference in perception between the Department of Communities and Local Government and the LGA on the usefulness and appropriateness of LDOs and Article 4. It seems to me that the perception is so fundamentally different that there has to be something wrong somewhere. Therefore, I would appreciate a lot more information about the examples the noble Baroness has given about LDOs in that particular area and also a lot more information about why her department feels that Article 4 is flexible and the Local Government Association does not. On the basis of an assurance that we will have that information before the House, I beg leave to withdraw my amendment.
Lord Berkeley
“(4A) In section 150 (removal of consent requirements) subsection (1), for the words “consented to the inclusion of the provision” substitute “been consulted by the applicant about the inclusion of the provision”.”
Lord Berkeley
My Lords, I shall also speak to Amendment 55, which is grouped with Amendment 46B. I asked for these amendments to be degrouped, because I thought that we would have a better discussion that way, but they have not been, so I am happy to plough on with both amendments unless other noble Lords indicate that they would rather debate them separately.
I would like first to express my gratitude to the Minister for probably several meetings that we have had on various issues relating to the amendments that are in my name and that of the noble Lord, Lord Jenkin of Roding. I am also grateful for the letter that she sent us yesterday with a number of attachments. I was able to study some of them but I am sure that there will be other things that we will want to debate further on.
I turn first to Amendment 46B, which is the same one as was moved in Committee. It is another attempt to provide for the NSIP/DCO regime to be the one-stop shop for all construction-related consents that was initially promised in the 2007 White Paper which led to the Planning Act 2008. It was one of the many proposals to try to speed up the process for getting consents for major projects. I think that one could call the present regime a bit of a bazaar. I hope that that is not insulting to those dealing with it. However, Sir Michael Pitt, of PINS, recently referred to the fact that some 40% of all construction-related consents were outside the DCO regime.
It is not intended and never has been intended by this amendment to cover operational consents, such as nuclear site operating licences or nuclear safety and environmental permissions. However, the point that did not come out in Committee is one of principle. How can it ever be right that an outside body such as the Environment Agency or Natural England has a veto on what a Minister can include in a DCO made by him or her? Section 150 of the 2008 Act gives these outside bodies such a veto. It may have been appropriate in the days of the IPC but it is no longer so when the decisions on the proposed DCOs are taken by democratically elected and accountable Ministers. Surely it is a fundamental principle that no one should be able to dictate what goes into a DCO? They can make representations, as this amendment proposes, but I suggest that, ultimately, the decision must be the Minister’s alone with reference to PINS’ recommendations.
The key point here is that the regime needs to be flexible. It needs to allow the promoter in discussion with the regulators to come up with a proposed consents regime that is right for each individual project. That may require some consents to be wrapped up in the DCO, by the DCO disapplying them, and other consents to be retained separately. However, there is a precedent for this, because disapplying consents by orders—and indeed by Acts such as the Crossrail Act 2008 and the Channel Tunnel Rail Link Act 1996—is not the new concept that observers of the debate in Committee might have been led to believe. It is commonplace in the Transport and Works Act and the Harbours Act regimes. In many cases separate consents is disapplied in exchange for protective provisions for the benefit of the regulator concerned being included in the order, such as provisions requiring the regulator to approve detailed plans of the project before construction starts. These protective provisions often then go on to provide for subsequent monitoring and compliance with them to be enforced by the regulator concerned, such as protective provisions in the TWA orders for the benefit of the Environment Agency.
I suggest that the same approach could be adopted in the case of DCOs. A single consenting regime for the construction phase of large projects can deliver real benefits and efficiencies, which I am sure is what the Government are looking for. For example, in 2008 the Department for Transport decided in response to the application for the harbour empowerment order to authorise the London Gateway port—which is now under construction; there were great pictures last week of what I think is one of the biggest cranes in the world being floated into it—that it was appropriate to disapply through the order much of the Environment Agency’s consenting regime, because it was already the case that the Port of London Authority would have to approve detailed plans of the project before construction could start. It did not make any sense to duplicate this, and add to the promoters’ burden, by requiring plans also to be approved by the Environment Agency. In this case, the EA would be able to feed its comments into the PLA before the plans were approved by the PLA, which had a whole host of environmental obligations in addition to its conservation role. It can reasonably assume that the preconstruction approval process would have been even more complex, taken longer and been more expensive had the EA had full plan approval rights. I think that if one were to ask the promoters of the London Gateway port, they would say just how successful this regime has been. It has probably cost them a lot of money but it has happened a lot more quickly than it would otherwise have done.
Lord Jenkin of Roding
My Lords, I added my name to these amendments. The noble Lord, Lord Berkeley, has dealt with them so comprehensively that all I need to say is that I support them.
Lord Ahmad of Wimbledon
My Lords, when we considered this amendment in Committee I indicated that the Government were taking a number of actions to expand and improve the one-stop-shop approach for nationally significant infrastructure consents. Overall, the responses to our recent consultation on proposals to expand and improve the one-stop-shop approach were positive. We are now taking forward a programme of work to deliver rapid implementation of these proposals. In response to the concerns of developers about the challenges of co-ordinating and aligning multiple consent application procedures for nationally significant infrastructure projects, we will be establishing a new consents service unit by April this year. We are also streamlining the list of prescribed consultees set out in legislation, reducing it by up to a third and streamlining the list of non-planning consents which sit outside the development consent process. Regulations implementing these changes have now been laid in Parliament. These changes are in addition to the five separate certificates and consents which are being removed from the Planning Act 2008 through clauses in this Bill.
We think that this approach provides applicants with additional support and service which they are looking for without watering down the protections that currently exist. While we recognise the appetite of some developers for all consents to be dealt with by the Planning Inspectorate, other bodies have highlighted the important role played by bodies such as the Environment Agency and Natural England in ensuring that adequate environmental protections are delivered.
Nationally significant infrastructure projects are by nature complex. We currently consider that the relevant consenting bodies, which hold a wide range of expertise on granting, monitoring and enforcing the various consents that are normally required, are well placed to make a judgment on a case by case basis, having regard to the updated guidance that we have issued about whether their consents should be dealt with as part of the development consent order process. We do not consider that it would be efficient to change that position as part of the current reforms. However, we remain in listening mode; we will review the operation of the current reforms and consider any further improvements to the way multiple consent applications are dealt with as part of a full review of the major infrastructure planning regime in 2014.
The proposals now being taken forward for the one-stop shop will deliver a much more efficient process for developers of infrastructure projects under the Planning Act. Despite the points made by the noble Lord, the Government’s position remains unchanged and at this stage, the Government do not intend to amend or repeal Section 150 of the Planning Act 2008.
I now turn to Amendment 55. I am grateful to the noble Lord for setting out the reasoning behind the amendment, which would provide for immediate commencement of the provisions in Clauses 21, 22 and 23. We have considered carefully the way in which the provisions covering the removal of certain consenting and certification requirements and the provisions on special parliamentary procedures should be introduced. We want to ensure the right balance is struck between the need to deliver infrastructure and the need to ensure that no one is prejudiced or treated unfairly by the changes we are proposing to introduce. Principles of fairness must surely be a prime consideration in any situation where it is proposed to compulsorily acquire land or property.
Unfairness might occur with the introduction of Clauses 21, 22 and 23 if provisions are not made to prevent such unfairness. This is because there will always be a number of applications at different stages in the process leading through to a development consent order under the Planning Act 2008. Some applications will have been submitted before this Bill was even introduced to Parliament for consideration. Some applications will be in the examination phase now. In some cases, the examination process will be complete and recommendations will be in the process of being prepared by the Planning Inspectorate, or a Secretary of State will be considering those recommendations before reaching a decision.
Lord Berkeley
Before the noble Lord sits down, I asked him whether he had any evidence of consultation or anything else on this balance between fairness to the affected people and the need to remove the barriers to growth and the desirability of avoiding delays in respect of nationally significant infrastructure projects. If he has, it would be good for us to have it—if not now, then before Third Reading.
Lord Ahmad of Wimbledon
If I may, I will write to the noble Lord about that.
Lord Berkeley
I am grateful to the Minister for his comprehensive answer. I shall certainly need to read very carefully what he said. I was pleased with some of his comments; the Government have moved a bit on this. Whether they moved enough for what I believe is right, I shall see when I read the debate. I am still surprised that the Environment Agency, in particular, would not be satisfied with a structure that was apparently successfully adopted for the London Gateway. I am grateful to the Minister for his comprehensive response and beg leave to withdraw the amendment.