(8 years, 7 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
21:11 - Division on Amendment 122 - Ayes: 12 / Noes: 180 - Amendment 122 disagreed.
21:24 - Division on Amendment 123 - Ayes: 35 / Noes: 152 - Amendment 123 disagreed.
“(1) The Secretary of State may by regulations provide for temporary arrangements in particular areas to test the practicality and desirability of competition in the processing (but not determining) of applications to do with planning.(1A) The regulations may make provision—(a) for an application for planning permission that falls to be determined by a specified local planning authority in England to be processed, if the applicant so chooses, not by that authority but by a designated person;(b) for any connected application also to be processed by a designated person and not by that authority.(2) The regulations must specify a period after which any such provision ceases to apply.That period (whether as originally specified or as subsequently extended) must end no later than five years after the first regulations under this section come into force.”
Baroness Evans of Bowes Park (Con)
My Lords, we had a wide-ranging debate in Committee on competition. My noble friend Lady Williams has reflected on concerns such as whether the private sector could have an inappropriate influence on decisions for planning permission. She has also considered the various reports from the DPRRC and, as a result, we have laid amendments which address many of the issues raised in your Lordships’ House.
Amendment 120A does three things. First, as recommended by the DPRRC, it confirms that the purpose of the clauses is to enable pilots in discrete areas to test the benefits of introducing competition to planning application processing. Secondly, it addresses another committee recommendation by setting the maximum length of pilot schemes. Discussions with local authorities and professional bodies have suggested that a maximum period of five years is prudent to allow for lengthy applications to go through the whole process, including appeals if necessary. Thirdly, local authorities have said the pilots will not be a level playing field if designated persons only process planning applications attracting a fee and local authorities are left to do the other applications connected to the development of the sites, as those connected applications tend to attract little or no fee.
Proposed new subsection (1A)(b) enables regulations to provide that connected applications can also be processed by designated persons. Amendments 121A, 121B, 121D, 121F, 122B, 122C, 123A, 123C and 123F make consequential changes to enable connected applications to be processed by designated persons.
The DPRRC has said that we should put a list of connected applications in the Bill and take a power to add to it. I am afraid in this regard we disagree. Our recent engagement work with over a hundred authorities has highlighted a concern about connected applications. It is right that we now address it with the sector and agree a list to be included in regulations rather than impose an unworkable list now.
In Committee we heard a clear message from your Lordships that a decision on a planning application must be a democratic one by a local planning authority. Authorities cannot be allowed to delegate this decision to designated persons and nothing should bind the authority’s decision. We have always been clear that decision-making will remain with the authority in a pilot area. However, I want to directly address the points noble Lords made in Committee.
Amendment 121C prevents us including in regulations anything that allows or could allow an authority’s decision-making function to be carried out by a designated person. It also puts beyond doubt that any advice, report or recommendation from a designated person will not be binding on the authority responsible for determining a planning application. To support this, Amendment 123D removes Clause 146(2)(g), which was of particular concern to noble Lords in Committee.
Noble Lords wanted more detail about how the pilots would operate and, ideally, to see draft regulations. It is essential that the pilots are designed with local government and professional bodies. We have started an extensive dialogue with planning professionals that has already involved over a hundred local authorities. None the less, I want to respond to noble Lords’ concerns, so Amendment 121C also places a duty on the Secretary of State to consult before making the first regulations to implement pilot schemes. Combined with other amendments, this means that your Lordships’ House will be able to debate the detail of how the pilot schemes will operate after it has been co-designed and consulted on with local government.
Amendment 121 implements a recommendation from the DPRRC that the Secretary of State should be under a duty to bring back to Parliament an evaluation of the pilots and set out any conclusions that can be drawn from them.
The DPRRC recommended that the affirmative procedure should apply to all regulations made under Clause 145. We recognise that the pilots represent a significant change to the planning system and that there are understandable concerns about their potential impact. We therefore agree that the affirmative procedure provides the appropriate level of scrutiny in certain circumstances. However, the affirmative procedure is not appropriate for every exercise of the powers. We may need to quickly make small changes to procedural rules to address something that is not working as effectively as it should.
In these circumstances, we think that the negative procedure is more appropriate. This is consistent with the negative resolution procedure that applies to the development management procedure order, which sets out the procedural rules for processing planning applications. Amendment 135A gives effect to this approach and applies the affirmative procedure to the power to specify the period after which each pilot will cease, specify the description of planning applications which may be processed by designated persons during the pilots, disapply or modify planning enactments to implement the pilot, specify what are connected applications in addition to reserved matters applications during the pilots, set fees during the pilots and require data sharing during the pilots.
Let me now directly address two concerns raised by the DPRRC in its 28th report. The committee said that the Government had failed to give effect to the use of the affirmative procedure on the first exercise of these powers. However, I am afraid that we disagree. For pilot schemes to be run, the first regulations will need, for example, to set out the length of them, the descriptions of planning applications that can be processed by designated persons and how fees should be set. Amendment 135A applies the affirmative procedure for these matters.
The committee also maintained its position that the Government should always consult before making any regulations and that every exercise of powers under Clauses 145 to 148 should be subject to the affirmative procedure. I note that the noble Lords, Lords Beecham and Lord Kennedy, have tabled Amendments 121CA and 135D to this effect, which they will speak to shortly. Again, I disagree. As I have said, the pilots are complex and we may not get the design perfect from the outset. This is the very reason why any Government use pilots to test their new approach. Consulting on every use of regulations combined with using affirmative procedures for them could snarl up the effective operation of the competition pilots, particularly where small changes to procedural rules are required. It would take six months each time we consult and use the affirmative procedure, equivalent to a 10th of the length of the five-year pilots. I appreciate the spirit and intention of the committee’s recommendations, but we believe that they are simply impractical. I hope that your Lordships will agree that we have taken the committee’s recommendations and applied them in a practical and effective way.
Amendment 137 means that regulations made under Clause 145 will not be treated as hybrid and will be subject only to the affirmative procedure usual for this type of scheme. We are implementing a pilot scheme, not a permanent change to the planning system. We are consulting on the first regulations before implementing any pilots, and local communities will have an opportunity to comment. These clauses are about processing, not deciding applications. Crucially, decisions remain with local planning authorities, so I suggest that private rights are not affected. In any case, it is entirely the applicant’s choice as to whether to stay with the existing authority provider or select a designated person. I beg to move.
Lord Beecham (Lab)
My Lords, I congratulate the noble Baroness on racing through the 15 amendments in her name in such a short time and so clearly. The amendments in my name and that of my noble friend Lord Kennedy are Amendments 121CA, 121G and 135D. The noble Baroness has referred to Amendment 121CA, which provides that the consultation should not be confined to the first regulations but should apply to any sets of regulations that might emerge. Amendment 121G would require a full list of the type of applications that constitute a connected application to be defined in regulations by the Secretary of State, while Amendment 135D would require all regulations made under Clause 145 to be affirmative.
The Government’s intention to extend their fetish with privatisation to the provision of planning services emerged only at the last minute during the Bill’s Report stage in the Commons. It was not the subject of prior consultation and, like the Chancellor’s recent announcement about education, seems uncannily more like Lenin’s concept of democratic centralism than the localism which Ministers proclaim is their watchword.
It is instructive to consider the material produced by the Government in support of their proposals. The Bill’s impact assessment proclaims the importance of the planning application process being,
“resourced and organised in a way that allows an efficient and effective service to be provided”,
and cites fee levels as “an important factor”. Fee levels are of course prescribed by the Government themselves. The document stresses the importance of driving down the costs of processing applications and notes that there is,
“cross-sector concern that resource constraints are affecting the overall service”.
Typically, this so-called impact assessment contains no evidence as to the impact of current or future costs on the performance of the planning process, although it affirms that,
“adequately resourced planning departments depend on an appropriate level of income”,
which it fails to define. There is also no attempted definition of,
“well organised, efficient and low cost services”,
even though the costs are determined by the Government.
Lord Shipley (LD)
My Lords, I shall speak to Amendment 123B and talk specifically about the pilot schemes, but I do share a number of the concerns the noble Lord, Lord Beecham, expressed. I have doubts about what is proposed but, on the assumption that they might go ahead, I will talk in some detail about the nature of the pilots that are being planned. I am grateful to the Royal Town Planning Institute for its advice on this matter. I say to the Minister that I have no intention of dividing the House, but I hope to help inform the Government’s thinking in response to the recent consultation.
Last week we had considerable debate on charges for planning applications relating to full cost recovery and greater flexibility in charging. A number of people said that private providers would be more expensive than planning authorities currently are. Government Amendment 120A reflects some changes since Committee stage and I welcome that movement. We now know that the pilot will be temporary and we know from government Amendment 121 that there must be a review of the pilot within a year of its termination. So, taken together, Amendments 120A and 121 will test the practicality and desirability of competition in the processing of planning applications, but not their determination. I welcome the Minister’s confirming a moment ago that there will be absolutely no role for that in determining planning applications, although on the next group of amendments I would like to say something about the need for a firewall to ensure that there is no connection between processing and determination. We know, too, that there will be a report within 12 months of the last of the pilots ceasing, which will set out the results and conclusions of the review.
If there are to be pilots to test whether more competition would help the planning system, it is in the best interests of good policy-making to test whether more resources alone would help. The problem with the pilot scheme as devised is that after the five years or so, it would be very difficult to work out whether competition had produced what the Government would hope were good results. This would make it very difficult to use it as the basis for rolling out the pilots further.
Amendment 123B seeks to address this issue, as it would pave the way for a parallel pilot scheme alongside the Government’s proposed pilot scheme. This parallel pilot would be designed to grant fee flexibility to local planning authorities in return for cast-iron commitments to reinvest greater income in the planning process. That could include information technology, greater joint working across councils, and the further training of staff towards professional accreditation. There would also be a need for a planning authority to demonstrate improving—or at least continued—high performance year on year.
In chapter 1 of their consultation document published in February, on which consultation closed on 15 April, the Government made some proposals which verge on this one in the context of devolution deals. The Government make particular reference to reforms which would be a fast-track service from the existing local authority for an increased fee, and competition as provided for in the Bill. While the first of these would arguably overlap with my proposal, it is too narrow a definition of reform and would not enable any satisfactory comparison with the competition pilots. For example, the competition pilots will not be limited to offering fast-track services. Therefore, I have concluded that for proper evaluation to take place, the impact of additional tied resources on its own should be tested alongside the impact of competition. Given that the whole initiative is a pilot programme, it seems strange to wish to limit it to one kind of pilot. There should be more than one kind of pilot.
Could the Government use the powers conferred by the Bill to operate a parallel pilot scheme of the kind I have outlined? That would meet a number of the problems and criticisms raised last week on Report, and could produce a more robust outcome for the Government’s proposed pilots. I would be very happy for the Minister simply to take the measure away and think about it. I do not expect an immediate answer because in any case, the Government have to respond to the consultation, which closed only a few days ago. A different kind of pilot based on fee flexibility could be important in helping the Government to achieve the robust pilots they are seeking.
Lord True (Con)
I will intervene because, technically, my Amendment 123E would be pre-empted if Amendment 123D were agreed. I would be very happy if Amendment 123D were agreed and I support it. I am very grateful to my noble friend on the Front Bench for what she said. Unfortunately, I was away from the internet over the weekend and was in the town hall until the House sat. Otherwise, I would have made it clear that I would have been happy for a number of my amendments to be in this group. It would have been more helpful to the House to have one debate. Indeed, we just have, because the noble Lord, Lord Beecham, spoke with great passion to his Amendment 123, which would leave out the whole thing but which is not, technically, before the House. The noble Lord does not need to repeat that speech on the next group, if such a debate happens.
In Committee, I raised a point which I believe to be fundamental, as does the noble Lord, Lord Shipley. I was grateful for the opportunity to discuss it with the Minister and her officials. The planning system must not be seen by the public to be bought. The Minister has said absolutely clearly that the decision must be independent and taken by the local authority, not taken by or influenced by a paid advocate bought and working for one of the parties to an application. As I always say, good policy has to reflect what happens in real life. In real life, a developer will seek a planning application; many people will object to it. We may not agree with those objections but they will be made, so it will come before a planning committee for determination.
I spoke in favour of an experiment with the private sector, as did my noble friend Lord Porter of Spalding. I do not agree with the comminations from the other side, but my noble friend needs to go just one step further. That is reflected in my Amendment 121E, which comes in the next group. As I said in Committee, a report is tabled at a planning committee with a statement recommending permission or rejection. If members of the public, particularly those who are objecting to an application, come to the meeting and see that the recommendation is being made or spoken to by somebody who is paid to do a job by one of the parties to the application, that will be seen as unfair and corrupt, even if it is not.
I do not intend to press my amendments; I am quite happy not to move Amendment 121E if the Minister can say that the assurance she has given will also apply to advice to planning committees—that it should be perceived as independent and not given by a paid advocate who tables a report to members saying they should give permission. If she can, a lot of the objections would potentially fall away. Amendment 122A would be otiose, because it is designed only to ensure that if someone is paid to give advice, they should be made to declare that they are a paid advocate, rather than independent. We could then part happily. I might be interested in taking part in these experiments. I hope the Minister will also take heed of what the noble Lord, Lord Shipley, said: there should be variety. My own authority, for example, is going into a shared management arrangement with another local authority. Inventive local authorities should be given the opportunity to suggest forms of experiment. That was an interesting proposal and I hope the Minister will be ready to listen to it.
Having been led to speak on the basis that one of my amendments would be pre-empted, I am essentially asking my noble friend to go one step further and say that the public who turn up will not hear or see a report saying “recommend” from somebody who is paid. If she can, much of the need for the amendments I have tabled would fall away.
If the noble Lord, Lord Beecham, is going to lead a frontal assault, I certainly would not want my Amendment 124A to be grouped with his because I shall be voting against his proposal. However, how the fee arrangements would actually work needs further clarification; we have heard little from the Front Bench. My noble friend Lady Williams said that there would be no two-tier system. That needs clarification, but provided there could be assurance of further consideration of that point, when the time comes I would be prepared not to move my Amendment 124A.
Lord Porter of Spalding (Con)
My Lords, I support Amendments 120A and 121. I was going to try to stick to the proper script but, given that everybody before me has left the running order and spoken about the things they are really interested in, I am going to do the same. First, I thank my noble friend the Minister for listening to what was said last week and to what local government has been saying for a number of weeks, and for clarifying how some of this pilot stuff will work.
Since I am on my feet, I am going to speak to fees. I am in favour of private sector competition on the basis that I honestly believe it will drive fees up. It is the first time I can recall having private sector competition to drive up the cost of a service, but I think this will do it. At the moment, we are spending about £150 million a year as taxpayers subsidising the planning system, and we have spent £450 million over the past three years doing it. Clearly, the fee structure does not recoup the full costs. If the private sector is going to come in and compete against us, it is going to want at least to cover its costs. Even if it is doing it for a few years as a loss leader, it is not going to want to lose a lot of money, so local government should be able to get its fees set at a much higher rate. That will allow us to staff our planning departments to a much more suitable level, given the demand that will be coming through, and that will allow local government to win the competition hands down because the public will trust what we are delivering and any sensible developer will want to go through an established route rather than risk competition in the private sector.
The noble Lord, Lord Beecham, said that an impact assessment had said that competition reduced the cost of refuse collection by about 20%. Ours has been brought back in-house since I have been leader and that has saved 20%. While private sector competition should be encouraged, it is not always the route that the final decision should go down.
Lord Beecham
On a point of clarification, when the noble Lord talks about council fees increasing in the way that he has described, is he suggesting to the Government that they should change the position and no longer fix the fees that councils should charge? That would be a necessary precondition of that occurring.
Lord Porter of Spalding
If we are truly about competition, the people in the competition should be the people setting the charges for that competition. Local government will set appropriate fees. All the Government need to say is, “This is the maximum profit you can make”, and we will all stick to those rules. I am sure local government will be able to drive down costs while putting fees up. As my noble friend Lord True said, we will be doing more shared management, and such arrangements will save some margin, but that will still not be enough to cover the full costs of the planning application. If we are able to put our fees up to recoup the full costs, so be it—bring on the competition. Like my noble friend Lord True, I will probably volunteer to pilot a rural competition.
Baroness Evans of Bowes Park
My Lords, I hope I gave a full explanation in my opening remarks of our approach to the DPRRC’s recommendations—where we have accepted and taken on board its comments, as well as those of your Lordships—and why we believe that Amendments 121CA and 135D are impractical. Amendment 121G repeats a provision that we have already laid.
The noble Lord, Lord Beecham, talked about the figures on outsourcing and shared services in the impact assessment. The key point is that, in many services, local authorities have undertaken significant reform and shown significant cost reductions. Some examples are set out in the impact assessment. However, in respect of planning services, authorities have been slow to do such reform, which is why we want to go forward with these pilots.
Amendment 123B in the name of the noble Lord, Lord Shipley, proposes an alternative pilot to test fee flexibility alongside the competition pilot scheme. I cannot accept this amendment because we already have the necessary powers and are already taking forward the proposal with the intention of evaluating its effectiveness. Section 303 of the Town and Country Planning Act 1990 allows us, through regulations, to set different fees for different local planning authorities, although Clause 141 of this Bill will make such an approach easier.
Our recent consultation paper included a proposal to test the provision of greater flexibility in fee setting, on top of our proposals for national increases in fees linked to inflation, where local authorities come forward with ambitious plans for reforms and improved performance. The noble Lord raised concerns that our proposals in the consultation are too narrow. The reference to a fast-track service was one example. We will explore a range of options for fee flexibility with areas and have started to have those conversations in some areas.
Lord Shipley
I thank the Minister for her response so far, but I want to be clear that I am talking about a measurable pilot, not one which is simply a set of options which may prove not to be measurable because they have not been set up properly. If a competition pilot is to take place, it has to be measurable; otherwise, the outcomes cannot be measured. Any fee flexibility pilot would also have to be measurable. The powers may be there already for the Government, but this has to be set up in a way that can be measured.
Baroness Evans of Bowes Park
Our aim with these pilots is certainly to be able to measure and look at differing effectiveness. As the noble Lord rightly said, the consultation is still out, and we will obviously be coming back with further details, but our intention is certainly to test the effectiveness of the different approaches. Furthermore, recent devolution deals included a commitment to this effect, and discussions are starting with these areas.
I will respond to the points raised by my noble friend Lord True in the next group, but I can say now that we will use regulations to prevent conflicts of interest and maintain ethical and professional standards. Local planning authorities will retain responsibility for deciding the planning application, having received a report with a recommendation from the provider that the planning applicant chose to submit their application to for processing. As I say, I will speak a bit further about this in the next group.
I hope that noble Lords recognise in my opening comments and the government amendments that we have sought to be reasonable, to address key concerns and to implement, in an effective way, the recommendations of the DPRRC. I hope on this basis that noble Lords will not press their amendments.
“( ) The Secretary of State must— (a) review the operation and effectiveness of any arrangements made under the regulations;(b) no later than 12 months after the date when the arrangements (or the last of them) cease to have effect—(i) lay a report before each House of Parliament, or(ii) make a statement to the House of Parliament of which that Secretary of State is a member,setting out the results and conclusions of the review.”
“( ) The regulations may not contain anything that allows or requires, or could allow or require, the responsible planning authority’s duty to determine an application to be carried out, to any extent, by a designated person on the authority’s behalf.“( ) Nothing said or done by a designated person appointed under the regulations to process an application is binding on the responsible planning authority when determining the application.“( ) Before making the first regulations under this section the Secretary of State must consult such representatives of local planning authorities, and such other persons, as the Secretary of State thinks fit.”
(i) the compilation of a report for a meeting of the planning, planning sub-committee, development control committee or other committee of the local planning authority convened to determine the application concerned, unless that report has been approved by a planning officer independent of the applicant, and(ii) the provision of a recommendation to the determining committee as to how to determine the application, which must always be made by an officer independent of the applicant or of objectors,”
Lord True
My Lords, I am moving this amendment because my noble friend has said she wishes to reply to it. I would have been quite happy to waive it, have it subsumed and not move the amendment. However, the point remains absolutely fundamental, and with great respect to my noble friend she has not answered it. I hope she will in her response.
What actually happens at a planning committee is that people, many of them objectors, file into the room, papers are laid, a determination is made on the basis of advice, which is public advice, a public document, and an officer advises the committee on what is the appropriate and right thing to do. All that I am asking—surely, in equity, it is not a difficult thing to ask, nor difficult for the Government to concede—is that everything to do with the final recommendation and determination is independent of the paid advocacy of one of the parties involved. That is what this lengthy amendment is intended to ensure. It is totally unnecessary if the Government will give an assurance that they will deliver that in the regulations, so that the determination can be independent, and seen to be independent by those who may not be happy with the advocate’s case. It will normally be the advocate of the person seeking permission who will have paid for the independent advice. I beg to move.
Lord Shipley
My Lords, I speak in support of the noble Lord, Lord True. I said a number of things in Committee on this group, and Amendment 121E in particular, about the independence of the advice being given, the role of planning officers employed by a council to comment on the report that has been written, and the importance of the general public understanding that independence and due probity is being followed at all points, because the issue of public trust is critical. For the public to have any confidence in the planning system, a robust firewall must be in place so that those writing reports are, and are seen to be, independent of applicants and subject to all the relevant codes of conduct that apply to professional planners.
It is vital that the people whose reports the community’s elected representatives are being asked to trust are people whom the public trust, too, especially if neither the public nor the council members are able to choose them. Local authorities can contract out these services, and some do, but they must nevertheless guarantee that alternative providers are subject to the same quality, accreditation, competencies and code of conduct that would apply in the public sector. Ensuring that independent providers are qualified to work in the public interest is a necessity, and must apply not just longer term but during the pilot period that we discussed under the previous group.
Lord Beecham
My Lords, I have a good deal of sympathy with the points of both the noble Lords, Lord True and Lord Shipley. I am concerned how it would be seen by the public generally, but also by those applicants who have paid for a report to be prepared, which may make a recommendation. The decision will certainly be made by the committee. That is more or less the position that operates now in the existing system. Sometimes, council planning officers’ recommendations are not accepted by the committee, and they may help appellants on appeal. However, if you are paying for that advice as an applicant, it creates a different ambience altogether, it seems to me. It makes the whole process rather more confusing and difficult for the applicant, as well as for the local authority. I hope that the noble Baroness will look again at how the process works, because it is fraught with danger for both the authority and public understanding of what is happening.
Baroness Evans of Bowes Park
My Lords, I will not repeat the detail of what we have already done to strengthen Clauses 145 to 148 but turn straight to the amendments.
Although I cannot accept Amendment 121E from my noble friend Lord True, I agree with its intent and commit to take the issue away and address it in the design of the pilots and regulations. Authorities have said clearly to us that it will be very inefficient if designated persons do all the background work but they are required to review it all and then pull together their own recommendation in a report that they write. They are not saying to us that they must make the recommendation or write their own report. Instead, they are saying that simple and efficient mechanisms are needed to ensure that quality and impartiality are maintained. This amendment could lead to inefficient behaviour.
Authorities have also said that designated persons must share some of the risk and cost of defending appeals. I am concerned that the amendment could make it harder to argue that designated persons should share any risks which will concern authorities. There is a complex set of interrelated issues which we need to explore in detail with authorities to avoid perverse behaviours and outcomes. We will explore a range of safeguards. I ask noble Lords to let us explore them with authorities and bring them forward in regulations. We would be very happy to have further discussions with my noble friend and others about how we can best do that. I hope that reassures him that we will take this away.
I am afraid I cannot accept Amendment 122 from the noble Lords, Lord Kennedy and Lord Beecham, limiting ‘designated persons’ to local authorities and public bodies and ruling out private sector companies and individuals. This amendment says, “It is the public sector way and there is no other way”. In contrast to noble Lords, the dozen or so local authorities considering being a pilot area are not arguing for the exclusion of the private sector. They believe that they can compete with it and, indeed, beat it. If that is the case, what have local authorities got to fear? If they provide the best service, they will hold on to the business. We believe that the concerns at the heart of this amendment are about any potential for the private sector to have undue influence on planning decisions, and we believe these can be managed.
We have strengthened planning authorities’ retention of decision-making during the pilots following concerns expressed in Committee. Our amendments mean that regulations cannot contain anything that allows an authority to delegate decision-making to designated persons and make clear that advice from designated persons will not be binding on authorities. However, other safeguards will also exist. We will set out high professional standards, as the noble Lord, Lord Shipley, outlined, drawing on codes of conduct such as that of the Royal Town Planning Institute, which requires competence, honesty, integrity and independent professional judgment from its members. We will remove someone’s designation where they fail continually to meet these high standards. We expect to prevent designated persons processing applications in which they, their company or its subsidiaries have any interest. I have committed to explore how we can maintain high-quality, independent advice being presented to decision-makers and having designated persons list their interest with authorities, as suggested by my noble friend Lord True. Section 327A of the Town and Country Planning Act 1990 provides that where the necessary procedures have not been followed appropriately an application can be declared null and void. We believe that enabling the private sector to compete with local planning authorities is likely to drive greater reform.
Some in local government have said that it may not be possible to process some applications, such as householder applications, for a price even close to the fee. Our initial dialogue with the private sector indicates that it might indeed be possible to process such applications, and we want to test this belief.
Finally, I cannot accept Amendments 123 to 126 from the noble Lords, Lord Kennedy and Lord Beecham. We all want a planning system fit for the 21st century, so we believe that, in order to achieve it, it would be wrong not to explore alternative delivery models for handling planning applications. Currently, local planning authorities have a monopoly which denies the user choice and does not incentivise service innovation and the provision of the most efficient and effective service. Alongside this, reform of planning departments lags behind most other local authority services. Local authorities can do a lot more to transform their planning departments. Indeed, many have introduced new ways of operating and have shown that performance can be improved and costs reduced, but we believe that more should follow their lead.
We have heard concerns about the undue potential influence of the private sector in the pilots. My noble friend Lady Williams has laid amendments to strengthen local authorities’ decision-making function, and I have set out other safeguards we intend to put in place. I have also committed to explore proposals raised by my noble friend Lord True. Your Lordships’ House has been concerned about the lack of detail about how the pilots will operate. Our amendments mean that we will debate the regulations in this House following a consultation before pilot schemes can come into force. Noble Lords have queried whether we intend to evaluate the pilot, and we have laid an amendment committing us to sharing our assessment of the pilots in the House. The RTPI and the LGA rightly highlight areas where we need carefully to consider the design of the pilots, and we will work with them to explore their ideas, but they have not opposed the principle of the pilots. Local authorities are telling us that we are right to challenge the current delivery model and, as we have heard from my noble friend Lord Porter, some want to be pilot areas. Despite this, the noble Lords opposite want to say that they cannot.
We listened very carefully to the debate in Committee and today, and I believe we have taken significant steps to ensure that the pilots are workable and to address many of the concerns that noble Lords have raised. I hope that, with these reassurance and the commitments I have made in these remarks, the noble Lord will withdraw the amendment.
Lord True
My Lords, I am grateful to my noble friend. She is right to say that on this subject the Government have listened, and are listening, carefully. That is entirely welcome and I am grateful for it. Not only will I shortly withdraw Amendment 121E but, as I indicated previously, I will not be pressing Amendment 122A on the basis of the assurance that we have been given.
On Amendment 124A, which I have degrouped here, there are questions about fees, on which my noble friend Lord Porter and I and others have spoken, that might bear further clarification in discussion. I welcome the assurances that my noble friend has given. I was interested when she said that the fees currently allowed would be adequate to enable the private sector to operate. So with the assurances that she has given, for which I thank her, I beg leave to withdraw the amendment.
“(6A) In this group of sections “connected application”, in relation to an application for planning permission that is to be or has been processed by a designated person under the regulations (“the main application”), means—(a) an application for approval of a matter reserved under an outline planning permission within the meaning of section 92 of the Town and Country Planning Act 1990 (where the main application resulted in the grant of such permission), or(b) an application of a specified description, made under or by virtue of an enactment about planning, that relates to some or all of the land to which the main application relates.”
Lord Kennedy of Southwark
Lord Kennedy of Southwark
“( ) Regulations under section 145 may—(a) equire a designated person (subject to any specified exceptions) to process an application for planning permission if chosen to do so by an applicant;(b) provide that, where an application for planning permission is to be or has been processed by a designated person, any connected application must (subject to any specified exceptions) also be processed by that person;(c) allow a responsible planning authority to take over the processing of an application for planning permission, or a connected application, in specified circumstances.”
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, if Amendment 123A is agreed to, I cannot call Amendment 123B for reasons of pre-emption.
The Deputy Speaker
My Lords, if Amendment 123D is agreed to, I cannot call Amendment 123E for reasons of pre-emption.
( ) If a draft of an instrument containing an order by the Secretary of State under subsection (1) would, but for this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not a hybrid instrument.”
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Williams of Trafford) (Con)
My Lords, government Amendments 127 and 128 ensure that the affirmative procedure will continue to apply to statutory instruments creating urban development corporations and urban development areas as recommended by the DPRRC.
The amendments at the same time ensure that the affirmative orders establishing a UDC and a UDA should be expressly not hybrid. We do not consider that a right to petition, which can significantly delay the creation of the UDC and the UDA, should be retained in light of the new statutory consultation requirement which this Bill introduces. Consultation provides a better and more accessible way for interested parties to express their views at an earlier stage in the process.
Non-government Amendment 128ZA would introduce the same process for establishing new town development corporations and areas as will apply under the provisions of this Bill to UDCs and UDAs. Non-government Amendment 128ZB would ensure that new town development corporations took into account the need for sustainable development and good design in pursuing their objectives. I am grateful to the noble Lords, Lord Taylor and Lord Best, for tabling these amendments.
When the noble Lords tabled similar amendments to Amendment 128ZA in Committee, my noble friend Lady Evans welcomed them as introducing a modernised process for establishing new town development corporations and areas. That modernised process will facilitate the role they can play in creating new, locally led garden villages and towns.
Similarly, Amendment 128ZB makes it clear that sustainable development and good design must be at heart of what new town development corporations do. My noble friend Lady Evans indicated in Committee the Government’s receptiveness to extending the objectives of new town development corporations in this way. I am accordingly pleased to accept Amendments 128ZA and 128ZB as tabled and urge the House to accept government Amendments 127 and 128.
Lord Taylor of Goss Moor (LD)
My Lords, I thank the Minister for her kind comments and draw attention to my registered interests.
I have pressed on this issue for a number of years and I am delighted that the proposal has positive cross-party support. It will make a real difference. The principle is fundamentally clear. At the moment, local authorities in rural areas have the option, in effect, of either brownfield development within previously developed areas, which is a good thing, or the opportunity to extend existing villages and towns sequentially by a series of developments to meet housing needs. That can be a good thing but often it is deeply unpopular because it builds on the very places that people most value.
By going down the route of allowing local authorities the option of using the New Towns Act to acquire land to create new settlements to meet local needs—going through a local process and with local support—it gives an opportunity to create great places without treading so hard on the toes of those who live in wonderful historic communities. Many of these, frankly, are at breaking point. They have problems with traffic congestion, getting children into schools and meeting service needs.
Local authorities will be able to do this in a way that allows the owners of the land to be properly compensated and to do well out of it. None the less, it allows, through the capture of land value, for these places to be well served with schools, shops, GP surgeries, parks, sports facilities and all the other things that make a great place while at the same time making housing available at much lower cost. This is because we can make land available to small builders, self-builders and housing associations for starter homes. A whole range of needs often are not met at the moment because land values are so high or land is not available; or great places are not delivered because the person who owned the land took the money and the taxpayer was left scrabbling to provide the schools, the shops and the GP and other services that are needed.
It is an extra tool in the box. We can plan for the housing which we agree across the House is needed. It is not the only solution but it changes the opportunities available to local communities and local government. It will be hugely welcomed. I have spoken to a wide range of organisations, from the National Association of Local Councils, of which I am president, to CPRE, to the country landowners, to many of the major housebuilders, to local government bodies and to many of the local councils that have pioneered this kind of approach. It has universal support.
This is an important change. I greatly thank the Minister, her colleagues and the other parties for the support that they have given to it. I particularly thank my colleague, the noble Lord, Lord Best, who has helped me bring this to the House.
Lord Best (CB)
My Lords, I support the noble Lord, Lord Taylor of Goss Moor, in his Amendments 128ZA and 128ZB. I, too, thank the Minister for accepting the amendments in advance of this debate. I congratulate the noble Lord, Lord Taylor, on his sterling work over several years in flying the flag for new settlements and new garden villages—small new towns, if you like. These can achieve all the objectives of good design, sustainability and sensible land use and produce significant numbers of new homes. I commend the work of the Town and Country Planning Association over the whole of the past century in promoting the benefits of new towns and new communities. I hope their hour has come, or nearly so.
As the noble Lord, Lord Taylor, has explained, building a settlement of 1,500 to 5,000 homes with a well-formulated master plan all in one place means that land does not have to be found haphazardly in dozens of little parcels. Instead of evoking protests in 100 places where local people object to seeing 20, 30 or 40 more homes built in their area with no extra infrastructure, lots more traffic and no social gains, the new settlement can generate a greater number of homes with all the necessary transport and community facilities built in.
Lord Adonis (Non-Afl)
My Lords, I rise briefly to congratulate the noble Lord, Lord Taylor, on what may turn out to be quite a significant reform of the planning system. The concept of new garden villages is thoroughly welcome. In the past we have thought of new settlements as being top-down and very large-scale, as the noble Lord, Lord Best, has just said. The principle being introduced by the noble Lord, Lord Taylor, is that is they should be much smaller in scale and locally led. The breakthrough in his thinking is that, by definition, you will reduce the number of nimbys if you are not building directly on existing settlements. It will make it possible, if this power is taken up by local authorities, to capture the increase in land values in a way that is not possible with developments on the edge of existing settlements. So the noble Lord’s thinking is hugely significant.
I live in hope that a purely bottom-up process will be sufficient, as the noble Lord, Lord Best, said, to produce the necessary proposals. I suspect—how can I put this diplomatically?—that we will need a certain amount of encouragement from the Government for local authorities as to the value of such new settlements and on how they can help them meet their own requirements of delivering new housing. That would be no bad thing. As ever, once there is a little leadership, and those who are rather nervous about taking this step see how it has been done successfully, more may be likely to follow.
( ) If a draft of an instrument containing an order by the Secretary of State under this section would, but for this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not a hybrid instrument.”
Lord Taylor of Goss Moor
“Designation of new town areas and establishment of corporations: procedure
(1) The New Towns Act 1981 is amended as follows.(2) In section 1 (designation of areas)—(a) after subsection (3) insert—“(3A) Before making an order under this section designating an area of land in England as the site of a proposed new town, the Secretary of State must consult the following persons (as well as the local authorities mentioned in subsection (1))—(a) persons who appear to the Secretary of State to represent those living within, or in the vicinity of, the site;(b) persons who appear to the Secretary of State to represent businesses with any premises within, or in the vicinity of, the site;(c) any other person whom the Secretary of State considers it appropriate to consult.”(b) in subsection (4), after “section” insert “designating areas of land in Wales”.(3) In section 3 (establishment of development corporations for new towns), after subsection (2) insert—“(2A) Before making an order under this section in relation to a site in England, the Secretary of State must consult the following persons—(a) persons who appear to the Secretary of State to represent those living within, or in the vicinity of, the site;(b) persons who appear to the Secretary of State to represent businesses with any premises within, or in the vicinity of, the site; (c) every county or district council for an area which falls wholly or partly within the site;(d) any other person whom the Secretary of State considers it appropriate to consult.”(4) In section 77 (regulations and orders)—(a) after subsection (3) insert—“(3ZA) The power of the Secretary of State to make orders under section 3 is also exercisable by statutory instrument.”;(b) after subsection (3A) insert—“(3B) A statutory instrument containing an order made by the Secretary of State under section 1, 2 or 3 may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(3C) If a draft of an instrument containing an order of the Secretary of State under section 1, 2 or 3 would, but for this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not a hybrid instrument.”;(c) in subsection (4), for the words before paragraph (a) substitute “A statutory instrument that is made by the Welsh Ministers (by virtue of paragraph 30 of Schedule 11 to the Government of Wales Act 2006) under any of the following provisions of this Act is subject to annulment in pursuance of a resolution of the National Assembly for Wales—”;(d) in subsection 4(a)(ii), omit “a county planning authority or, where the order is one designating an area in Wales, by”.(5) In Schedule 1 (procedure for designating area), before paragraph 1 insert—“Application of Schedule: Wales onlyA1 This Schedule applies only in relation to an order under section 1 designating an area of land in Wales as the site of a proposed new town.””
“New towns: objects of development corporations in England
In section 4 of the New Towns Act 1981 (objects and general powers of development corporations), after subsection (1) insert—“(1A) In pursuing those objects a development corporation that is established for the purposes of a new town in England must aim to contribute to the achievement of sustainable development.(1B) For the purposes of subsection (1A) a development corporation must (in particular) have regard to the desirability of good design.””
“No general vesting declaration after notice to treat
In section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 (execution of declaration), after subsection (1) insert—“(1A) But an acquiring authority may not execute a declaration in respect of land if they have served a notice to treat in respect of that land and have not withdrawn it. (1B) In subsection (1A) the reference to an authority having “served” a notice does not include cases in which the authority is deemed to have served a notice.””
Viscount Younger of Leckie (Con)
My Lords, this is the first of three groups of government amendments on compulsory purchase. Although there are 90 government amendments altogether, noble Lords will be relieved to hear that I do not plan to cover all these individually. However, many are consequential and some repetition will be necessary. I shall therefore speak to them in batches, within the group.
Government Amendments 128A to 128S, from after Clause 164 to Clause 168, deal with refinements to the various methods of entry and taking possession of land, once a compulsory purchase order has been confirmed. Amendment 128A confirms in statute what practitioners have assumed the law already means: if a normal notice to treat has been served, an acquiring authority may not then execute a general vesting declaration in respect of that land. Continuing with Amendments 128B and 128C, these address the issues raised by Committee Amendment 103BAA, tabled by the noble Earl, Lord Lytton, and spoken to then by the noble Duke, the Duke of Somerset.
Amendment 128C deals with the issue of a new interest in land emerging after a notice of entry has been served. The noble Duke, the Duke of Somerset, told us, on 23 March at cols. 2447 and 2448 of Hansard of three issues that were of concern to the Compulsory Purchase Association: delay when new notices must be served; reliance on poor quality information; and the potential for the creation of ransom interests. I believe that revised new Section 11A of the Compulsory Purchase Act 1965 deals with all of these. New subsections (2) and (4) suspend any existing notices of entry until notices have been served on the newly discovered interest, but the new normal minimum notice period of three months is replaced by the later of 14 days or the date specified in any previous notice of entry. The proviso in new subsection (3) is that this truncated notice period applies only if the acquiring authority was not aware of the person because it was given misleading information when carrying out inquiries, or the land is unoccupied.
The Government believe that ransom interests will be prevented by the qualifying provision in new subsection (1)(b). This ensures that new Section 11A applies only where an authority becomes aware of an owner, lessee or occupier to whom it,
“ought to have … given a notice to treat”,
under Section 5 of the Compulsory Purchase Act 1965. Interests created after a notice to treat on the land in question has been served are not entitled to notices of their own, so they need not hinder the acquiring authority.
I turn to Amendments 128D to 128J inclusive. Clause 166 provides for a counternotice to a notice of entry to require possession to be taken on a specified date. Amendments 128D to 128J, except for Amendment 128G, are technical amendments changing the description of the person who can serve such a notice from,
“a person who is in possession”,
to,
“an occupier with an interest in”,
the relevant land. The reason for this is that the date of entry is of particular interest to the occupier, who should be in control of the process. A person, such as a freeholder, can be “in possession” without being in occupation of land.
Amendment 128G sets out circumstances in which the counternotice requiring possession to be taken will have no effect, either because the notice to treat has been withdrawn or ceases to have effect, or where the authority is prohibited from taking possession by other provisions of the Compulsory Purchase Act 1965. In the latter case, the claimant can serve a further counternotice once the prohibition ceases. Amendments 128K to 128S make changes to the New Towns Act 1981, as amended in Clause 168, corresponding to those in Amendments 128B to 128J.
Government Amendments 128T to 128V, 128Y, 128YAA, 128YAB and 142 concern the compensation provisions from Clauses 171 to after Clause 175 and mainly cater for some of the less-frequent situations that could arise following the making of an advance payment of compensation.
I will now talk to a series of amendments that protect the position of the Welsh Ministers, who have executive functions under the Land Compensation Acts. Clause 171 amends the Land Compensation Act 1961 to give the Secretary of State the power to impose further requirements about the form and content of a claim for compensation by a person whose land has been compulsorily purchased. The Welsh Ministers have executive functions under this Act, so Amendments 128T, 128U and 128V also confer this power on the Welsh Ministers. Amendments 128Y, 128YAA and 128YAB do the same thing in Clause 172, which gives the Secretary of State the power to impose requirements about the form and content of a request for an advance payment.
In this context, it is convenient to mention Amendment 142, which provides for Clause 161, confirmation by inspector, and Clause 163 with Schedule 15, notice of general vesting declaration procedure, to be commenced on different days for different areas. These provisions may need to be commenced on different days in England and Wales, as both will require amendments to existing secondary legislation, some of which is a function of the Welsh Ministers in Wales.
The remaining amendments in the group are mainly to do with advance payments of compensation. The first is Amendment 128W, which relates to compensation for losses or expenses incurred by a person as a result of a notice to treat being withdrawn. The proposed new clause in the amendment extends the entitlement to compensation to a person who has acquired the property to which the notice relates—perhaps by inheritance—before the withdrawal of the notice. This is a clarifying measure for the avoidance of doubt.
Clause 172 enables an acquiring authority to request further information from a person who has made a claim for an advance payment of compensation within 28 days of receipt of the claim. Amendment 128X completes the picture by ensuring that this provision also applies when the advance payment is to be made to a mortgagee.
Amendments 128YAC and 128YAD, and Amendments 128YAF to 128YAJ in Clause 173, amend the earliest date on which an advance payment of compensation must be made from the date of the notice to treat to the date the notice of entry is served. In many cases this will make no practical difference, because the notice to treat and notice of entry are served on the same day.
““11A Powers of entry: further notices of entry
(1) This section applies where—(a) an acquiring authority have given a notice of entry under section 11(1) but have not yet entered on and taken possession of the land, and(b) the authority become aware of an owner, lessee or occupier (“the newly identified person”) to whom they ought to have given a notice to treat under section 5(1) but have not.(2) Any notice of entry already served under section 11(1) remains valid, but the authority may not enter on and take possession of the land unless they serve on the newly identified person—(a) a notice to treat under section 5(1), and(b) a notice of entry under section 11(1).(3) Subsection (4) applies for the purpose of determining the period to be specified in the notice of entry under section 11(1) served on the newly identified person if—(a) the person is an occupier of the land and the authority were not aware of the person because they were given misleading information when carrying out inquiries under section 5(1), or(b) the person is not an occupier of the land. (4) The period specified in the notice must be a period that ends—(a) no earlier than the end of the period of 14 days beginning with the day on which the notice of entry is served, and(b) no earlier than the end of the period specified in any previous notice of entry given by the acquiring authority in respect of the land.”
“(3A) A counter-notice under subsection (1) has no effect if the notice to treat relating to the land is withdrawn or ceases to have effect before the date specified in the counter-notice.(3B) A counter-notice under subsection (1) has no effect if it would require an acquiring authority to take possession of land at a time when section 11A or paragraph 5 of Schedule 2A prohibit the authority from entering on and taking possession of the land.(3C) If subsection (3B) applies, the authority must notify the occupier who served the counter-notice—(a) that the counter-notice has no effect, and(b) if the authority serve a notice of entry as mentioned in section 11A(2)(b), of the date after which the authority could enter on and take possession of the land.(3D) If a counter-notice served under subsection (1) has no effect because of subsection (3B), the occupier who served it may serve a further counter-notice.”
(i) in the words before paragraph (a), after “every owner of that land” insert “so far as known to the acquiring authority after making diligent inquiry in accordance with section 5(1) of the Compulsory Purchase Act 1965”;(ii) in the words after paragraph (b),”
““4A(1) This paragraph applies where— (a) an acquiring authority have given a notice under paragraph 4(1) but have not yet entered on and taken possession of the land, and(b) the authority become aware of an owner (“the newly identified owner”) to whom they ought to have given a notice to treat under section 5(1) of the Compulsory Purchase Act 1965 but have not._(2) Any notice already served under paragraph 4(1) remains valid, but the authority may not enter on and take possession of the land unless they serve on the newly identified owner—(a) a notice to treat under section 5(1) of the Compulsory Purchase Act 1965, and(b) a notice under paragraph 4(1)._(3) Sub-paragraph (4) applies for the purpose of determining the period to be specified in the notice under paragraph 4(1) served on the newly identified owner if—(a) the owner is an occupier of the land and the authority were not aware of the owner because they were given misleading information when carrying out inquiries under section 5(1) of the Compulsory Purchase Act 1965, or(b) the owner is not an occupier of the land._(4) The period must be a period that ends— (a) no earlier than the end of the period of 14 days beginning with the day on which the notice of entry is served, and(b) no earlier than the end of the period specified in any previous notice under paragraph 4(1) given by the acquiring authority in respect of the land.”
“(3A) A counter-notice under sub-paragraph (1) has no effect if the notice to treat relating to the land is withdrawn or ceases to have effect before the date specified in the counter-notice.(3B) A counter-notice under sub-paragraph (1) has no effect if it would require an acquiring authority to take possession of land at a time when either paragraph 4A of this Schedule or paragraph 5 of Schedule 2A to the Compulsory Purchase Act 1965 prohibit the authority from entering on and taking possession of the land.(3C) If sub-paragraph (3B) applies, the authority must notify the occupier who served the counter-notice—(a) that the counter-notice has no effect, and(b) if the authority serve a notice under paragraph 4(1) of this Schedule as mentioned in paragraph 4A(2)(b) of this Schedule, of the date after which the authority could enter on and take possession of the land.(3D) If a counter-notice served under sub-paragraph (1) has no effect because of sub-paragraph (3B), the occupier who served it may serve a further counter-notice.”
“(1A) In subsection (1) “appropriate national authority” means—(a) in relation to a claim for compensation for the compulsory acquisition of land in England, the Secretary of State;(b) in relation to a claim for compensation for the compulsory acquisition of land in Wales, the Welsh Ministers.”
“(6) A statutory instrument containing regulations under subsection (1) is subject to annulment—(a) in the case of an instrument made by the Secretary of State, in pursuance of a resolution of either House of Parliament; (b) in the case of an instrument made by the Welsh Ministers, in pursuance of a resolution of the National Assembly for Wales.””
“Compensation after withdrawal of notice to treat
(1) Section 31 of the Land Compensation Act 1961 (withdrawal of notices to treat) is amended in accordance with subsections (2) and (3).(2) After subsection (3) insert—“(3A) Where the acquiring authority withdraw a notice to treat under this section, the authority shall also be liable to pay a person compensation for any loss or expenses occasioned by the person as a result of the giving and withdrawal of the notice to treat if the person—(a) acquired the interest to which the notice to treat relates before its withdrawal, and(b) has not subsequently been given a notice to treat in relation to that interest.”(3) In subsection (4), after “(3)” insert “or (3A)”.(4) In Schedule 18 to the Planning and Compensation Act 1991 (provisions under which compensation is payable with interest), in Part 1, in the entry relating to the Land Compensation Act 1961, after “section 31(3)” insert “or (3A)”.”
“(2A) In section 52ZC (land subject to mortgage: supplementary), for subsection (2) substitute— “(2) Within 28 days of receiving a request for a payment under section 52ZA or 52ZB, the acquiring authority must—(a) determine whether they have enough information to give effect to section 52ZA or, as the case may be, 52ZB, and(b) if they need more information, require the claimant to provide it.””
“(1A) In subsection (1) “appropriate national authority” means— (a) in relation to a request relating to the compulsory acquisition of land in England, the Secretary of State;(b) in relation to a request relating to the compulsory acquisition of land in Wales, the Welsh Ministers.”
(a) in the case of an instrument made by the Secretary of State, in pursuance of a resolution of either House of Parliament;(b) in the case of an instrument made by the Welsh Ministers, in pursuance of a resolution of the National Assembly for Wales.””
“(1A) In a case where the compulsory acquisition is one to which the Lands Clauses Consolidation Act 1845 applies, the acquiring authority may not make an advance payment if they have not taken possession of the land, but must do so if they have.(1B) In all other cases, an acquiring authority must make an advance payment under subsection (1) if, before or after the request is made, the authority—(a) give a notice of entry under section 11(1) of the Compulsory Purchase Act 1965, or(b) execute a general vesting declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 in respect of that land.”;”
““(4) An advance payment required by subsection (1A) must be made—(a) before the end of the day on which the authority take possession of the land, or (b) if later, before the end of the period of two months beginning with the day on which the authority—(i) received the request for the advance payment, or(ii) received any further information required under subsection (2A)(b).(4ZA) An advance payment required by subsection (1B) must be made—(a) before the end of the day on which the notice of entry is given or the general vesting declaration is executed, or(b) if later, before the end of the period of two months beginning with the day on which the authority—(i) received the request for the advance payment, or(ii) received any further information required under subsection (2A)(b).”;”
“(3A) In a case where the compulsory acquisition to which the request relates is one to which the Lands Clauses Consolidation Act 1845 applies, the acquiring authority must make any payment under section 52ZA or 52ZB—(a) before the end of the day on which the authority take possession of the land, or(b) if later, before the end of the period of two months beginning with the day on which the authority—(i) received the request under section 52ZA(3) or 52ZB(3), or(ii) received any further information required under subsection (2).(3B) In all other cases, the authority must make any payment under section 52ZA or 52ZB—(a) before the end of the day on which the notice of entry is given or the general vesting declaration is executed, or(b) if later, before the end of the period of two months beginning with the day on which the authority—(i) received the request under section 52ZA(3) or 52ZB(3), or(ii) received any further information required under subsection (2).”;”
“(2) Section 52 (right to advance payment of compensation) is amended in accordance with subsections (2A) and (2B).(2A) Omit subsection (5).(2B) In subsection (9), for the words from “he disposes” to the end substitute— “(a) the claimant’s interest in some or all of the land is acquired by another person, or(b) the claimant creates an interest in some or all of the land in favour of a person other than the acquiring authority,the amount of the advance payment together with any amount paid under section 52A shall be set off against any sum payable by the authority to that other person in respect of the compulsory acquisition of the interest acquired or the compulsory acquisition or release of the interest created.””
“(2C) After section 52 insert—“52AZA Repayment by claimant etc.(1) Where the amount or aggregate amount of any payments under section 52 made on the basis of the acquiring authority’s estimate of the compensation exceeds the compensation as finally determined or agreed, the excess is to be repaid.(2) If after any payment under section 52 has been made to any person it is discovered that the person was not entitled to it, the person must repay it.(3) If the notice to treat relating to an interest in land in relation to which an acquiring authority have made a payment to a claimant under section 52 is withdrawn or has ceased to have effect before the authority take possession of the land, the authority may by notice require the claimant to pay them an amount equal to the amount of the payment, unless another person has acquired the whole of the claimant’s interest in the land.(4) Subsection (5) applies where—(a) a payment made to a claimant has been registered as a local land charge in accordance with section 52(8A),(b) the whole of the claimant’s interest in land has subsequently been acquired by another person (a “successor”),(c) any notice to treat given in relation to the interest is withdrawn or ceases to have effect before the acquiring authority take possession of the land, and(d) the authority notify the successor that they are not going to give the successor a notice to treat (or a further notice to treat) for the interest.(5) The authority may by notice require the successor to pay them an amount equal to the amount of any payment made to the claimant under section 52.(6) A notice under subsection (3) or (5) must specify the date by which the claimant or successor must pay the amount. (7) The date mentioned in subsection (6) must be after the period of two months beginning with the day on which the authority give the notice under subsection (3) or (5).(8) Neither subsection (3) nor subsection (5) affects a right to compensation under section 31(3) or (3A) of the Land Compensation Act 1961 or section 5(2C)(b) of the Compulsory Purchase Act 1965.””
“Repayment of payment to mortgagee if land not acquired
In the Land Compensation Act 1973, after section 52ZD (inserted by section 172 above) insert—“52ZE Payment to mortgagee recoverable if notice to treat withdrawn(1) Where an acquiring authority have made a payment to a mortgagee under section 52ZA or 52ZB in relation to an interest in land and notify the claimant that the notice to treat relating to the interest is withdrawn or has ceased to have effect before the authority take possession of the land, the authority may by notice require the claimant to pay them an amount equal to the amount of the payment, unless another person has acquired the whole of the claimant’s interest in the land.(2) Subsection (3) applies where—(a) a payment under section 52ZA or 52ZB has been registered as a local land charge in accordance with section 52(8A),(b) the whole of a claimant’s interest in land has subsequently been acquired by another person (a “successor”),(c) any notice to treat given in relation to the interest is withdrawn or ceases to have effect before the authority take possession of the land, and(d) the acquiring authority notify the successor that they are not going to give the successor a notice to treat (or a further notice to treat) in relation to the interest.(3) The authority may by notice require the successor to pay them an amount equal to the amount of the payment.(4) A notice under subsection (1) or (3) must specify the date by which the claimant or successor must pay the amount.(5) The date mentioned in subsection (4) must be after the period of two months beginning with the day on which the authority give the notice under subsection (1) or (3).(6) Neither subsection (1) nor subsection (3) affects a right to compensation under section 31(3) or (3A) of the Land Compensation Act 1961 or section 5(2C)(b) of the Compulsory Purchase Act 1965.””
“Objection to division of land: blight notices
(1) The Town and Country Planning Act 1990 is amended as follows. (2) In section 153 (reference of objection to Upper Tribunal), after subsection (4) insert—“(4A) Where the effect of a blight notice would be a compulsory purchase to which Part 1 of the Compulsory Purchase Act 1965 applies, the Upper Tribunal may uphold an objection on the grounds mentioned in section 151(4)(c) only if it is satisfied that the part of the hereditament or affected area proposed to be acquired in the counter-notice— (a) in the case of a house, building or factory, can be taken without material detriment to the house, building or factory, or(b) in the case of a park or garden belonging to a house, can be taken without seriously affecting the amenity or convenience of the house.”(3) In section 166 (saving for claimant’s right to sell whole hereditament etc.)—(a) in subsection (1) omit paragraph (b) (and the “or” before it);(b) omit subsection (2).”
Viscount Younger of Leckie
My Lords, this is the second group of technical amendments to Part 7 of the Bill. It deals with adjustments to the regime for determining disputes about the division of land—or material detriment—where the acquiring authority wants only part of a claimant’s land. In some cases, the remainder of the land—being a house, building or factory—cannot be used without material detriment and the claimant may serve a counternotice requesting the acquiring authority to take all of the land. Disputes are referred to the Upper Tribunal.
Although this is a very large group, it includes batches of up to 11 amendments, each to deal with a single topic. As there are more than 40 very technical amendments in this group and the hour is getting on, I will, if your Lordships’ House agrees, not speak to these amendments, but will answer questions about them if noble Lords have any matter they wish to raise. I beg to move.
“1A_ This Part does not apply by virtue of a notice to treat that is deemed to have been served in respect of part only of a house, building or factory under section 154(5) of the Town and Country Planning Act 1990 (deemed notice to treat in relation to blighted land).”
“13A_ This Part does not apply if the acquiring authority are deemed to have served a notice to treat in respect of the land proposed to be acquired under section 154(5) of the Town and Country Planning Act 1990 (deemed notice to treat in relation to blighted land).”
The Deputy Speaker (Viscount Ullswater) (Con)
My Lords, there is a mistake in Amendment 128YBT. It should read:
“Page 186, line 24, leave out from “treat), to the end of line 29 and insert”
the words as printed on the Marshalled List.
Amendment 128YBT
“(1) On the vesting date the provisions of—(a) the Land Compensation Act 1961 (as modified by section 4 of the Acquisition of Land Act 1981),(b) the Compulsory Purchase Act 1965, and(c) Schedule A1 to this Act,shall apply as if, on the date on which the general vesting declaration was executed, a notice to treat had been served on every person on whom, under section 5 of the Compulsory Purchase Act 1965, the acquiring authority could have served such a notice, other than any person entitled to a minor tenancy or a long tenancy which is about to expire.””
“4A_ In section 12 (divided land), for “Schedule 1” substitute “Schedules A1 and 1”.”
““notice to treat” means a notice to treat deemed to have been served under section 7(1);”
“5A_ In Schedule 1 (divided land) omit Part 1 (buildings and gardens etc).”
“8_ In Schedule 6 to the Crossrail Act 2008 (acquisition of land shown within limits on deposited plans), in paragraph 11(3)(b), for “Schedule 1” substitute “Schedule A1”.”
(d) the building or maintenance work is for purposes related to the purposes for which the land was vested, acquired or appropriated as mentioned in paragraph (b).”
Viscount Younger of Leckie
My Lords, this is the final group of government amendments on compulsory purchase matters, dealing with the power to override easements and other rights. This power, which is currently available to local planning authorities and regeneration agencies such as the Homes and Communities Agency and urban development corporations, is extended, by means of Clause 179, to land acquired by “specified authorities”, being those which have compulsory purchase powers. I believe that none of the amendments is controversial, so I hope to deal with them in short order, if the House agrees.
Amendments 128YCL, 128YCN, 128YCP and 128YCR ensure that the powers in Clause 179 are only available where the development by a specified authority, or a successor in title, is related to the purpose for which the land was vested in, acquired by or appropriated by the specified authority. These amendments codify the judgment in Midtown Ltd v City of London Real Property Company Ltd. The Honourable Mr Justice Peter Smith held, at paragraph 47 of his judgment, that if a local authority or a successor in title wishes to rely upon the power to override in Section 237 of the Town and Country Planning Act 1990, the proposed development must be related to the planning purposes for which the land was acquired or appropriated.
Amendments 128YCM, 128YCQ, 128YCS and 128YCU to 128YCY clarify the transitional provisions that apply to those authorities which already have the power to override easements to ensure that they operate effectively. Amendment 128YCX clarifies the terminology for the determination of compensation disputes.
Government Amendment 128YCT—the so-called National Trust amendment—extends the protection in place for statutory undertakers from having their rights overridden to the National Trust. This amendment responds to Amendment 103C tabled in Committee by the noble Baronesses, Lady Andrews and Lady Parminter, who spoke to the amendment on that occasion. I understand that officials at the National Trust are content with this amendment, and I hope that the noble Baronesses are too.
Finally, Amendment 128YD inserts into the definition of “specified authority” a body established by an Act or Measure of the National Assembly for Wales. This is a piece of future-proofing in case an Act or Measure of the Assembly should create a new body with compulsory acquisition powers.
I conclude by thanking your Lordships’ House for its patience in hearing about 90 technical, and in places arcane, amendments about compulsory purchase. I beg to move.
(d) the building or maintenance work is for purposes related to the purposes for which the land was vested in, or acquired or appropriated by, the qualifying authority in relation to the land.”
(d) the use is for purposes related to the purposes for which the land was vested, acquired or appropriated as mentioned in paragraph (b).”
(d) the use is for purposes related to the purposes for which the land was vested in, or acquired or appropriated by, the qualifying authority in relation to the land.”
“(7A) Land currently owned by a qualifying authority is to be treated for the purposes of subsection (3)(c) or (6)(c) as if it were not currently owned by the authority.”
“(9) Nothing in this section authorises—(a) an interference with a relevant right or interest annexed to land belonging to the National Trust which is held by the National Trust inalienably, or(b) a breach of a restriction as to the user of land which does not belong to the National Trust—(i) arising by virtue of a contract to which the National Trust is a party, or(ii) benefiting land which does belong to the National Trust.(10) For the purposes of subsection (9)—(a) “National Trust” means the National Trust for Places of Historic Interest or Natural Beauty incorporated by the National Trust Act 1907, and(b) land is held by the National Trust “inalienably” if it is inalienable under section 21 of the National Trust Act 1907 or section 8 of the National Trust Act 1939.”
“(3A) The specified or qualifying authority against which a liability is enforceable by virtue of subsection (3)(a) is the specified or qualifying authority in which the land to which the compensation relates was vested, or by which the land was acquired or appropriated, as mentioned in section 179.”
“(4) Any dispute about compensation payable under this section may be referred to and determined by the Upper Tribunal.”
page 95, line 7, at end insert—
““qualifying authority” in relation to other qualifying land means the authority in which the land was vested, or which acquired or appropriated the land, as mentioned in the definition of “other qualifying land”;”
“(ca) a body established by or under an Act or Measure of the National Assembly for Wales,”
“Local planning authority right to develop in the local interest
(1) Where a local planning authority has compiled a register under section 137 or has seen a report under section 184 and considers that a government department, Mayor of London or other public authority, transport undertaking or other statutory undertaking has not prepared, or declines to prepare, a plan for development of previously developed unused or underused land on the register in its possession within the local authority area, it may challenge the owner of the land to present planning proposals to the local planning authority within 6 months in conformity with the adopted plan or plans for the area concerned, unless the Secretary of State has certified such development as against the national interest.(2) Where the owner declines to present such a plan in accordance with subsection (1) it must publish within the same 6-month period a response showing good reason why such previously used land in its ownership should not be developed in the local public interest.(3) If the local planning authority considers the response not to show good reason why the land should not be developed, it may proceed to present its own proposals for development, to compulsorily purchase the land concerned and to exercise itself any planning consent that is then granted.(4) The costs to the local planning authority of any compulsory purchase of the land and the net cost of its development will be remitted by the local planning authority without any profit element to the owner who has declined to develop, in arrears after the land is sold.(5) This section does not apply to land within National Parks or the Royal Parks or designated as a site of special scientific interest.”
Lord True
My Lords, I hesitate to interrupt the tour de force of my noble friend Lord Younger. In 100 years’ time, historians will read Hansard and marvel at his command of the law of compulsory purchase. I can say to those future historians that I am absolutely amazed by what he has told us.
Because of time, I will be very brief. I seem to be unfortunate in addressing noble Lords at this late hour every day. I have tried to put forward a creative idea in response to the intolerable position whereby public authorities fail to develop land when they should. I declare an interest as a non-executive member of the Royal Parks Board. The Royal Parks are referred to in this amendment, but that is technical.
I spoke to this in Committee at a different point in the Bill. I do not want to detain your Lordships long, but the issue is simple. To give one example, which actually would not be addressed but it is the spirit of the thing, a planning permission that has been granted in my borough, over intense opposition, to build 110 homes has not yet been proceeded with by a public authority after five years. Another example would be an official from a health service body who said, when pressed in discussion with my planning officers recently to proceed with a development on a site brief to develop new homes, a small primary school and medical facilities, “Well, if you keep going on like that, we could leave this lying fallow for years”. That is the sort of mentality that exists too often. I congratulate the Government on trying to get to grips in the Bill with brown land that is held by government departments, public bodies and other statutory and transport undertakings. I will not venture to mention Network Rail.
My amendment is defective in many ways. I am not suggesting that it could operate in this way. But I am encouraged to press forward in the hope that, instead of always criticising local authorities, my noble friend on the Front Bench may be able to say that, over the weeks and months to come, he is prepared to consider giving local authorities the opportunity to do something to get these buildings and developments done. At the moment we are taking incoming fire but are not able to press those who are failing in their public duty, in my estimation. I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, I support the amendment of the noble Lord, Lord True. It is an excellent idea. I hope the Minister will come back, as the noble Lord suggested, with some suggestions for what could be done in the next few months with local authorities.
When I go to Lewisham Town Hall, I get off at Catford Bridge station and walk past a scruffy bit of land clearly owned by the railway that you could easily get six or seven houses on. It just sits there and irritates me every day. The railways have bits of land near them. On a number of sites in Lewisham you could build some houses. We are in the midst of a housing crisis and there is no good reason that this land just sits there. I hope the Minister will respond favourably to the points made by the noble Lord, Lord True.
The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)
Well, my Lords, that was very brief. I, too, will try to be very brief. Before addressing the amendments in this group, I want quickly to update your Lordships on discussions I have had since Committee. In Committee I promised to write to my noble friend Lord Carrington of Fulham to clarify the position of the Corporation of London, given its unique hybrid nature. I take this opportunity to reassure the corporation that our intention is to apply regulations under this part of the Act to the corporation in its capacity as a local authority only, and that the drafting of the Bill allows for this.
Turning to the amendments in this group, I will start with Amendment 129 in the name of my noble friend Lady Williams. Clause 185 provides a power for the Secretary of State, in circumstances to be specified in regulations, to direct a relevant public authority to take steps for the disposal of the body’s freehold or leasehold interest in any land. At present, the regulations setting out these circumstances will be subject to the negative resolution procedure. Amendment 129 amends Clause 185 to require the affirmative procedure to be used instead, as recommended by the Delegated Powers and Regulatory Reform Committee.
I thank my noble friend Lord True—he is indeed a friend—for his arguments and concerns regarding Amendment 129YE. I entirely agree with him and the noble Lord, Lord Kennedy, that surplus land held by public bodies should be brought forward for development without delay, and that local authorities, which are indeed expert on local planning matters, should be able to make their voice heard. That is why we are introducing the duty on Ministers to engage with them under Clause 183.
I assure your Lordships that the Government are equally committed to making sure that more public land is brought forward for development and that surplus land is released for development, including for housing, without delay. I think we all share the impatience for this to happen, and Clauses 184 and 185 will help to deliver it. Clause 184 will ensure that relevant public bodies report any land which has been held as surplus for two years or more—six months for residential land—and the reasons why.
It pains me to say that my noble friend’s amendment could risk undermining this—he himself said it was defective—by giving a local authority the ultimate power, if it does not accept the reasons put forward by the landholding body why the land should not be developed at this time, to force development to proceed. I fully accept that most local authorities would not use this power for mischief making, but the potential would exist. More pertinently, there would be cases in which a fine balance of judgments would need to be made regarding a public authority’s total land asset requirements, at a national level, now and in the future. Given their local focus, however well meaning they may be—and they are well meaning—local authorities are not that well placed to make these judgments. Getting them wrong would undermine carefully planned land disposal strategies across the wider public sector.
The Government’s view is that this power should sit with the Secretary of State, who is best placed to take a balanced judgement on a given public body’s need for the land, taking account of their broader functions, future plans and assets. However, there should be no doubt about our commitment to ensuring that unused public land is put to good use.
My noble friend Lord True has also tabled Amendment 129A—
Lord Bridges of Headley
Amendment 129A, to which the noble Lord, Lord Beecham, has added his name, would remove Clause 186 from the Bill. This clause mirrors Section 86 of the Climate Change Act 2008, which requires the Minister for the Cabinet Office to publish an annual State of the Estate report setting out progress in improving the efficiency of the civil estate.
Local authorities are already subject to a number of efficiency and sustainability requirements, such as producing energy efficiency certificates for their buildings. The new duty draws on these and requires authorities to publish reports to enable local people to hold them to account for the use of their assets. I reassure noble Lords that any additional costs to local authorities will be met by central government. DCLG is currently undertaking a new burdens assessment of Clauses 183 to 187 to determine which of the provisions create new burdens, and their extent.
Finally, I turn to Amendment 129ZA, proposed by the noble Lords, Lord Kennedy and Lord Beecham, which would remove Clause 185 from the Bill. The power to order disposals was brought into effect through the Local Government, Planning and Land Act 1980. The power underpins the community right to reclaim land, which enables people to hold public authorities to account for their use of land. Under this right, communities can drive improvements in their local area by asking the Secretary of State to direct that underused or unused land owned by public bodies is brought back into beneficial use.
Since 1 April 2011, when the National Planning Casework Unit was tasked with considering requests under the right, we have received 106 requests. Only one of these resulted in the power being exercised, over a piece of land of 0.26 hectares in Tiddington, near Stratford-upon-Avon—no doubt a blessed plot. A great deal of effort has been expended by those making requests, and by the casework unit in considering them, for very little gain. This is why the Government wish to strengthen the existing legislation—to enable people to challenge their local authorities to release land, even where it is used, if it could be put to better use. Far from being centralising, Clause 185 gives more power to local communities.
The 1980 Act already provides important safeguards which will continue to apply to the new provisions. Public bodies must be notified of the Secretary of State’s proposal to exercise the power and are given 42 days in which to make representations. If a representation is made, the Secretary of State may not give a direction unless he is satisfied that the disposal can be made without serious detriment to the performance of the body’s functions.
All this shows that we are determined to ensure that public land is used as efficiently as possible, and that where it can be made surplus and put to better use, especially in building more homes, this happens as quickly as possible. These clauses are essential to that agenda, and I hope that noble Lords will be fully reassured by the explanations I have given.
Lord Kennedy of Southwark
My Lords, before the Minister sits down, I was a little disappointed by his response to the amendment of the noble Lord, Lord True. The bits of land I am talking about are not big or strategic. No one wants to use them. They have sat there for years. There are now trees growing there. That is of no benefit whatsoever. The Minister suggests that this power should be held by the Secretary of State and that local councils would be mischievous. This is about us building three or four houses and getting a bit of scruffy land cleaned up, sorted out and into use. I cannot see why that would be better in the hands of the Secretary of State than the local council.
Lord Bridges of Headley
I understand the point the noble Lord is making, but when we are talking about public authorities’ land that may stretch the entire breadth of the country, the Government believe that it is in our interest to ensure that the Secretary of State takes that decision.
Lord Shipley
Before the Minister sits down, I point out that the Government are very critical of builders who hoard land, but are they critical of Whitehall departments that also hoard land? Is there a list, a register, of all the pieces of land the Minister is talking about? If power is to reside with the Secretary of State, the following question must be: how does the Secretary of State know what needs to be done? Is it not better to accept the amendment moved by the noble Lord, Lord True, which gives the responsibility to initiate the procedure to the local authority?
Lord Bridges of Headley
I am sorry to say that I disagree with the noble Lord on his final point. We are indeed looking at the land that the Government hold at national level very carefully indeed. As the noble Lord will have seen, Table 1.12 in the Autumn Statement catalogues what each department is being expected to provide in land for housing and land surplus to requirements, which we will be looking to dispose of.
Lord True
My Lords, obviously, I am slightly disappointed by my noble friend’s reply. I am gratified he recognises the problem and thinks that local authorities might be useful, but he thinks that it is too risky to allow them to do anything. That is the disappointing part of his reply. I want to take the spirit of my noble friend’s answer, rather than the letter. I like to think that further thought will be given to this problem, because it will remain and I will not cease to put the case for local authorities to be able to take the initiative.
I had intended to speak to my other amendment in its place but, as my noble friend has already spoken to it, it will perhaps be for the convenience of the House if I respond now, and then we can move on. My reason for criticising Clause 186 is that, as my noble friend acknowledged, it is potentially a major new burden on local authorities. He did not address that; he said that money would be provided. I question whether it is necessary for money to be provided. One of the achievements of the Government after 2010 was to sweep away the nonsense of a process called asset management strategies and asset management plans, where every local authority was required regularly to submit to the Government what they were doing with their land. This is simply officials in Whitehall reviving that process under another name. It was one of Gordon Brown’s most disliked operations, and local authorities were very glad to see it go.
It is absurd to expect the Cabinet Office to monitor all the bodies in Schedule 22 to check whether authorities are reducing the size of their estate. Ministers in the Cabinet Office are going to check, every time that a local authority changes building, that it is in the top quartile of energy performance. This will be an interference with local authorities’ ability to use their land efficiently. We must explain. Let us say that we wanted to take leasehold space in a building to use our estate more profitably, but it was less energy-efficient. My officers have to file a report with the Cabinet Office explaining why we have taken three rooms in a block of flats to put some officers there briefly.
I will not press the amendment, because I read in the commencement clause that it does not come into force on the day on which the Bill comes into force. For that reason, I will withdraw the amendment, but I urge my noble friend to think about the bureaucracy being recreated here. Section 7 is in any case defective because a building can be part of an authority’s estate where two authorities are working together. An authority may well have a building in a partner authority’s area and may have an interest. Say if Richmond were partnered with Wandsworth and using a building in Wandsworth, according to the amendment as drafted by the Government, that building would not be classed as part of Richmond’s estate. That is absurd, and officials need to look again at the drafting of this legislation.
I am disappointed by seeing this bureaucracy returning, albeit under the guise of climate change, but I hope that before this comes into force my noble friend will give more consideration to it. I beg leave to withdraw the amendment.
Baroness Williams of Trafford
Before we start debating the various commencement issues, I shall highlight a couple of minor changes consequential on Amendment 133, which was debated on 18 April alongside consideration of the amendments on pay to stay. In bringing forward a government amendment to ensure that the first regulations brought forward under Clause 78 will be affirmative, it was necessary to move some of the text of the clause from the beginning to the end. This has no effect on the meaning of the clause, but simply tidies up the language to prevent any misunderstanding. I beg to move.
“( ) regulations under section 13,”
Lord Lisvane
“( ) regulations under section 67(1) that contain more than one determination or a determination that relates to more than one local housing authority,( ) regulations under section 67(8),”
Lord Lisvane
My Lords, this amendment is consequential upon Amendment 53, which was agreed on 13 April. I beg to move.
Baroness Williams of Trafford
My Lords, Amendment 132, which has been tabled by the noble Lords, Lord Lisvane, Lord Kerslake and Lord Beecham, would make regulations on the definition of higher value and on determinations subject to the affirmative procedure. As I have made clear, we have listened to the House and agree that the regulations defining higher value should be made through the affirmative process. We will table an additional amendment in relation to this to ensure that no hybridity issues arise in respect of those regulations. We do not agree that the determination should be put into regulations and that those regulations should be subject to the affirmative procedure. However, I recognise that the House voted to accept Amendment 53, which put the determination into regulations, and that agreement has been reached that Amendment 132 will be accepted by the will of the House. It is important that I am clear to noble Lords that the Government are concerned that putting the determination into regulations will add more complexity and delay to the process and that we intend to return to this issue in the Commons.
“( ) the first regulations under section 78,”
“( ) section (Reducing local authority influence over private registered providers);”
“( ) regulations under section (Electrical safety standards for properties let by private landlords),”
“( ) regulations under section 145 that make provision of the kind referred to in section 145(2), (3), (4) or (6A)(b), section 147 or section 148,”
“( ) regulations under section (Power to require property agents to join client money protection schemes), (Client money protection schemes: approval or designation), or (Enforcement of client money protection scheme regulations),”
Lord Lucas
“( ) regulations under section (Planning freedoms: right for local areas to request alterations to planning system)(1),”
Lord Lucas (Con)
My Lords, this amendment and Amendment 137A are consequential on Amendment 107B, which we debated and passed on the previous day of Report. Amendment 135C would make any proposals under Amendment 107 subject to the affirmative procedure, which I addressed at the time and seems to me to be entirely appropriate, while Amendment 137A would deal with hybridity. I beg to move.
“( ) If a draft of regulations under section 145 would, apart from this subsection, be treated as a hybrid instrument for the purposes of the standing orders of either House of Parliament, it is to proceed in that House as if it were not a hybrid instrument.”
Lord Lucas
“( ) If a draft of regulations under section (Planning freedoms: right for local areas to request alterations to planning system) would, apart from this subsection, be treated as a hybrid instrument for the purposes of the Standing Orders of either House of Parliament, it is to proceed in that House as if it were not a hybrid instrument.”
Lord Lisvane
Lord Lisvane
My Lords, as we embark on the last group in five heavy days of this Bill on Report, I am under no illusions at all about your Lordships’ wish to have a lengthy debate. However, it is perhaps appropriate that the issues raised by this last group reflect concerns raised at Second Reading, in Committee and on Report: what is good legislation and how do you go about it?
Amendment 138 is simply a paver for Amendment 140, in that it would remove the immediate commencement date from the provisions on vacant high-value housing, which Amendment 140 seeks to delay. Amendments 139, 140 and 141 in my name and that of the noble Lords, Lord Kerslake, Lord Kennedy of Southwark and Lord Foster of Bath, are sunrise amendments. They would delay the coming into force of provisions on, respectively, rents for high-income social tenants, vacant high-value housing and starter homes, until the key regulations in each case had been laid before Parliament. It is fair to say that the period of delay might be much too long in practice, but of course its purpose is demonstrative.
The aim of the amendments is to reverse the default setting with which we have become perhaps almost too familiar in considering the Bill: first, that a great deal—too much, in the minds of many—is left to secondary legislation; secondly, that the level of parliamentary control is too low, although I am glad to say that some welcome steps have been taken in this respect on Report; and, lastly, that too much depends on consultation that should have taken place before the Bill was ever introduced and whose outcome, even at this stage, we have to take on trust.
Over many years in this building I have become familiar—even wearily so—with the special difficulties of a first Session of a Parliament, particularly when there has been a change of Administration at the previous general election. However, I do not think that that entirely justifies the position in which we have been put. Sometimes one must accept delay in order to get things right. Getting things right means following the logical process of formulating policy, consulting upon it, finalising it and then putting it into draft legislation, with all the key areas of policy being in the Bill.
In what seems now the dim and distant past, there used to be such things as Green Papers. Not only did they allow consultation on proposals; they also allowed legislative intent to be stress-tested before proposals came formally before Parliament. I attach no blame at all to the noble Baroness, Lady Williams of Trafford, and her noble friends on the Front Bench. She has constantly sought to be helpful, as have her officials and the Housing Minister, Brandon Lewis. Like, no doubt, other noble Lords around the House, I am very grateful for that but from time to time, Ministers have reminded me of anguished travellers on a runaway train. They have been prisoners of a legislative culture in the Executive. I do not single out the present Administration in this respect; it has been going on for a long time, perhaps too long. That culture militates against real parliamentary scrutiny.
In passing, I note that Clause 189(2), which is outside the scope of these amendments but close by, is a hefty Henry VIII power of the sort against which my noble and learned friend Lord Judge warned us in his masterly King’s College lecture a fortnight ago.
The message of Amendments 139, 140 and 141 is really that, had this measure come before Parliament in the form of a draft Bill, it would have resulted in better legislation. I know well why that was not the option the Government found attractive, but I hope that this Parliament will see a dramatic increase in the number of draft Bills, and that we may hear of a reassuring number in the gracious Speech in just over three weeks’ time. I beg to move.
Lord Foster of Bath (LD)
My Lords, I shall briefly follow the noble Lord, Lord Lisvane. At Second Reading, I and many other people acknowledged that there were some very good bits in the Bill before us at that time. However, we pointed out that there were also many bits about which we had considerable concern. There are at least some areas where deliberation in your Lordships’ House has brought about improvements to those areas where we had concern. I, too, pay tribute to the Minister and her colleagues on the Front Bench for the way in which they have been willing to listen and bring forward amendments in the light of our deliberations.
However, none of that can take away from the fact that the Bill has been presented, not only in another place but more recently to your Lordships’ House, in a pretty poor state. Because I am relatively new to your Lordships’ House, I turned to my elders and betters to see what they have thought about it. As we come to the end of the deliberations on this legislation, it is worth reflecting what your Lordships’ Delegated Powers and Regulatory Reform Committee has had to say about the Bill—not only when it first received it but subsequently, after various deliberations had taken place.
I note that, in its 27th report, the committee says:
“This Bill has given rise to a particularly large number of comments and recommendations … It is also disappointing that we have felt it necessary to comment adversely on aspects of the delegated powers memoranda provided by the department”.
It described those memoranda as “variable in quality” and pointed out that in relation to some parts of the Bill,
“no delegated powers memorandum was provided at all”.
When the Government responded to the committee’s initial findings, the committee then had to point out that:
“It is a matter of regret that the Government’s response to this Bill … gives us cause for continued concern in that a number of our recommendations received no comment at all”.
The committee made the point that many Members of your Lordships’ House have made many times over many weeks, when it said that,
“we would observe again that these provisions are being presented to the House before the underlying policy is sufficiently developed to afford Members a clear basis for discussing it”.
In its 28th report, the committee amplified that in saying:
“Inadequate and incomplete provisions of … primary legislation cannot be excused on the basis that consultation has not taken place or that the Government wish to retain ‘flexibility to set out differing timeframes as they apply in different contexts’”.
The committee concludes:
“The policy should have been finalised following appropriate consultation before, not after, the Bill was introduced”.
One can read so many other comments from the report:
“We draw this apparent ambiguity to the attention of the House … We draw this lack of clarity to the attention of the House … That seems to us to be a very unusual requirement, and we draw it to the attention of the House”,
and so on. It is “not persuaded”, it does not regard this as being remotely persuasive, and so the report goes on.
It is perfectly reasonable for people to propose a sunrise clause as a way of simply putting off legislation with which they disagree, and we on these Benches disagree with bits of this legislation. However, the noble Lord, Lord Lisvane, has made a much more fundamental point about why there should be a sunrise clause, which is simply that the work has not yet been done. Until the work has been done and draft regulations are put before the House and we have an opportunity to know that that consultation has taken place and to understand what the Government mean by some of the definitions we have not yet heard, it seems perfectly reasonable to propose, as the noble Lord and others have done, that we have a sunrise clause to put off the introduction of this legislation until the Government have done the work that they should have done before presenting the Bill to this House.
Baroness Hollis of Heigham (Lab)
My Lords, I also support these amendments. I hope that the House will forgive me if I say that I have been in this House for 25 years and handled a number of Bills on both sides of the Benches, both for the Government and the Opposition. There are often cases where, as with the Cities and Local Government Devolution Act, there was a real need for something that was essentially broad brush to get resolutions coming from below, and we accepted that.
However, leaving that aside, in process terms—I am not talking about content, and it is absolutely not the fault of the Minister and her colleagues on the Front Bench—this is the worst Bill I have come across in my fields in 25 years. That is because we have not had pre-legislative scrutiny or proper legislative scrutiny and, because the consultation exercises which should have been completed before the Bill started will not be completed until after the Bill has finished, we will not get post-legislative scrutiny. What does it mean to talk about this House of Lords being a place of scrutiny when we cannot scrutinise because so much of what we need to know will not only not be in primary legislation, but will also not be in statutory instruments which we will see draft copies of before the Bill is complete? Why is that? They are dependent on consultation exercises, which were only started in some cases half way through not the proceedings down the other end but the proceedings in this House. This is disgraceful. It is a shabby way to treat Parliament and all those affected by the Bill—and hundreds of thousands of council tenants will be affected by it, as well as many people who will seek to buy starter homes, and they still do not know the small print of how it will be. It is a shabby way to treat the public.
It is fairly obvious that the Bill was introduced a year too early. It should have been pulled fairly early by the current equivalent of LegCo. Ministers should have been sent away and told to come back to both Houses when the Bill’s policy intent was clear, so that stuff that is of major policy import, not matters of detail, is not carried by SIs—which we are told we cannot amend but only discuss; we might just as well go home and not bother for that purpose—instead of being in the Bill, where we can amend it, dispute and argue with the House of Commons and, ultimately, of course, accept that it has the final say. That has been denied to us.
We are moving on to Third Reading, and I cannot recall being so unhappy about the handling of the process of a Bill, and, as I said, I have been involved with quite a number of Bills. I am not talking about the Minister, who has been as accommodating, helpful and generous with her time as possible. We have failed to scrutinise the Bill. We have allowed ourselves to be committed to a process which we should have rejected as inadequate, because the Bill was not ready for parliamentary scrutiny. We have all allowed ourselves to collude in that failure of scrutiny, and I have to say that I am ashamed of it.
Baroness Williams of Trafford
My Lords, we end Report as we began, discussing the principle of many of the policies within the Bill. The evening is drawing on—it is now quarter to 11—so noble Lords will forgive me if I do not restate all the arguments for all the policies.
However, I will say this. Later this week, we will pass to the other place a Bill which contains a number of distinct manifesto policies and which implements a number of measures set out in the Government’s Budget or productivity plan. The Government’s intention is quite clear. We all agree that this country, and in particular our young people, need more homes to be built. That is a key theme for this Government, and changes to the planning system and building new homes take time.
I understand the concerns raised by noble Lords, particularly the noble Baroness, Lady Hollis, about the availability of detail on some of the policies in the Bill, but this set of amendments would place delay upon delay on the building of new homes. This is extra time that we simply do not have. It would mean a delay to the sale of high-value assets, meaning delays to building two more affordable homes in London for every one expected to be sold, and a delay to the commencement of starter homes, meaning fewer built for young families looking for somewhere to call their own.
I have heard the arguments raised time and again—that noble Lords feel that the detail of our policies should be available for scrutiny before work is done to legislate for them—and I understand the points that have been made. I am very keen to see consensus where possible and to continue to engage with noble Lords across the House as we go forward in developing regulations after the Bill has completed its passage. That is why I have made a number of changes to enhance the role of Parliament in scrutinising our plans. Several regulations will now not come into force without the detail being agreed by both Houses. I believe that this is a good compromise, and it is the result of noble Lords’ passionate arguments and skill in refining the Bill to the point at which we are today.
Amendments 138 and 140, tabled by the noble Lords, Lords Lisvane, Lord Kerslake, Lord Beecham and Lord Foster, would delay the sale of high-value assets and the delivery of new homes which that would unlock. Furthermore, the sale of assets to pay for the voluntary right-to-buy agreement is a manifesto commitment, and people want to exercise their right to buy as soon as possible. Already more than 25,000 housing association tenants have registered their interest in taking up this option, with 1,000 registering their interest each week. Our current arrangements will allow Parliament to scrutinise the detail first, and I hope that that will satisfy noble Lords. However, at this point I must make it clear that I will not bring back this amendment at Third Reading. Therefore, if the noble Lord is not content with my response, he should test the opinion of the House this evening.
Likewise, the affirmative regulations effected by Amendment 141, tabled by the noble Lords, Lord Lisvane and Lord Kerslake, would prevent the starter home provisions in the Bill coming into force until a year after regulations are laid in both Houses. I say again that the Government’s manifesto commitment was to deliver 200,000 starter homes, and we will be expected to deliver on our commitment. Our current arrangements allow Parliament to scrutinise the detail first.
I hear noble Lords’ arguments clearly, however, and local planning authorities need time to consider new measures. That is why we are consulting on the provision of transitional arrangements in our technical consultation. We have asked an open question to understand the views of the sector on this important matter.
The regulations will not act retrospectively on existing planning consents. It is also our intention that they will not apply to any application already submitted to a local planning authority. I am sure noble Lords do not want to delay housebuilding because their amendment stops development for a year, and that would be its impact.
Turning now to Amendment 138C, which is from the noble Lords, Lord Krebs and Lord Kennedy, and deals with flooding, I acknowledge that where we do build we need to do so in a way that ensures that the flood risk is managed effectively and so that new development does not add to the flood risk. Our planning policies are designed to do just that. I am glad to acknowledge the important work which the noble Lord, Lord Krebs, has led with the adaptation sub-committee of the Committee on Climate Change on this matter. We understand and appreciate the intention of the noble Lord to find further ways to ensure that new development is not built in areas of high flood risk. His proposal raises some complex issues, not least the interaction with insurance arrangements and the operation of the existing warranty schemes for new homes. We all want to avoid a situation where there is any confusion about liabilities and responsibilities between housebuilders, insurance companies and warranty scheme operators. The Housing and Planning Minister, Brandon Lewis, wrote to the noble Lord offering further discussions between officials on this matter, including with colleagues from Defra. I am very happy to repeat that offer this evening. I can confirm that I will write to the noble Lord with details of those planned discussions. I hope he will accept that as a positive way forward.
I know that some of us are not going to agree on policies linking social rents more closely to income, despite the progress that we have made. I have listened to the debate with care, but my response may not come as a surprise. Amendment 139 would delay payment of a fairer rent by those who can afford it, and the money raised through the policy has been identified as a contribution to deficit reduction. Delaying the implementation of the policy in this way would reduce the Government’s ability to use that money for this important purpose. I have previously announced a significant package of measures aimed at ensuring that the policy is applied fairly, including the use of a taper and exemptions for people on certain benefits. We are carefully considering the amendments made by noble Lords to the policy on Report before we return to this discussion in the Commons. We will give tenants time to prepare for the introduction of the policy by working with local authorities now to ensure that they are fully aware of the need to put preparations in place to deliver measured and tapered rent increases in April 2017. My officials and I have had constructive conversations with the noble Lord, Lord Lisvane, about how we can implement the Bill as practically as possible.
As I said earlier, I hope I have been clear in what I said: if the noble Lord is not happy with my response, he should test the opinion of the House.
Lord Lisvane
My Lords, I am grateful to the Minister, especially for her undertaking to seek consensus as the details have developed—that is extremely helpful. I know that she has taken my criticisms in good part. In practice, these amendments raise issues that are lessons for the future, rather than an occasion for a final skirmish on Report. Accordingly, I beg leave to withdraw Amendment 138 and will not move the subsequent amendments.
Lord Young of Cookham
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