Tuesday 28th February 2017
(7 years, 9 months ago)
Lords ChamberNeighbourhood Planning Act 2017 View all Neighbourhood Planning Act 2017 Debates Read Hansard Text Amendment Paper: HL Bill 101-II(Rev) Revised second marshalled list for Report (PDF, 104KB) - (27 Feb 2017)
16:17 - Division on Amendment 35 - Ayes: 278 / Noes: 188 - Amendment 35 agreed.
Baroness Deech (CB)
My Lords, my name is attached to this amendment. I have no interest to declare in every sense of the word. I became interested because the area where I live has seen a great deal of development. Houses have been pulled down; big new estates have arrived. The very few local pubs have served as stabilising factors and community centres. They are places where people can meet to get to know each other and, in particular, they act as a sort of verbal noticeboard to find out what is going on in the community. Communities would be much impoverished were these pubs to be closed down more readily.
All this amendment is asking is that pubs should not be treated more casually than other demolitions and changes of use. There can be no harm in this. I hope that the Government will see the truth of it.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, I thank noble Lords who have participated in this debate, in which there has been a great deal of passion and much agreement. There is not anything that divides us on the basic tenet that we want to protect pubs. Where there is a difference is on the best way of doing that. There is no disagreement about the diagnosis, only about the remedy. One or two noble Lords were, perhaps, in error—or have expressed themselves ambiguously—on one point. If you are converting a pub to residential accommodation, you need planning permission; that is already the case and this would not alter that.
I thank the noble Lords, Lord Shipley, Lord Tope, Lord Scriven, and Lord Kennedy, and the noble Baroness, Lady Deech, for speaking so effectively to the amendments. I reaffirm that the Government do recognise the importance that local communities place on valued community pubs. I have experience of this because, in another life, I was co-chair of the All-Party Beer and Pub Group in the National Assembly for Wales— one of my more pleasant jobs there—and met regularly with CAMRA and the British Beer and Pub Association. I was pleased to set out in Committee the range of support that we are providing to some communities to enable them to purchase their local pubs and to enable other pubs to diversify. I take the point made by the noble Lord, Lord Bilimoria, that this is a package of arrangements. It is not a silver bullet; we have to look at the problem more holistically.
Our package of fiscal measures—scrapping the beer and alcohol duty escalators and freezing beer duty at Budget 2016—has supported all pubs. These measures have made a considerable difference and have been widely welcomed across the House and in communities up and down the country. Some noble Lords have made the point that some pubs are not viable and no amendment we pass will make them so. There are others which we should seek to protect. There are things we can do today, but whatever we do will ameliorate and help the situation, not solve it with a silver bullet.
As I said I would in Committee, I have continued to give consideration to the issue of pubs and assets of community value, to try to do something that will address this across a range of pressure points and issues. I have met with the Campaign for Real Ale—an excellent organisation for which I have great respect—and the British Beer and Pub Association. I have to say to the noble Lord, Lord Bilimoria, that it was clear from our meeting that they are much more of the view that we should have a review than that we should press this amendment. I was intent on listening to their views to see how the current arrangements work.
I am very keen to respond to the concerns that have been raised today, and it is clear that a delicate balance needs to be struck. Indeed, the evidence put forward by the Campaign for Real Ale does not necessarily point to permitted development rights as having the most significant impact on pubs. I am keen that we should look at this issue and the evidence available to us. It is clear from these conversations that the majority of pubs that change use do so following local consideration of a planning application in relation to residential development rights—or, in this case, non-rights.
Figures provided by CAMRA estimate that 90% of pubs changing use do require planning permission. Where this is the case, for example for the change of use to residential, there are strong policy protections for pubs. Paragraph 70 of the National Planning Policy Framework requires local planning authorities to deliver the social, recreational and cultural facilities and services that the community needs, including pubs. That is why it is important for local planning authorities to have relevant, up-to-date, local policies in place to support their decision-making.
In respect of the change of use or demolition of pubs under permitted development rights, as noble Lords will know, the current arrangements already provide protections for pubs that are valued by the community. As has been indicated in this debate, permitted development rights for change of use or demolition are removed from those pubs that are listed as an asset of community value for the period of the listing. I have had a look at the process of nominating as an asset of community value. It is not complicated and there is no fee attached to it. Communities have responded positively, and more than 4,000 assets have now been listed, of which over half are pubs; a “very large number” as the noble Lord, Lord Shipley, said.
That is a sign of success, not failure, but I agree that we have to see how we can do better. My starting point would be to look at the impediments to other pubs being listed as assets of community value. For example, it may be that some local authorities are not looking at this in the way they should. I thank the noble Lord, Lord Scriven, for coming up with some evidence, which we have certainly had a look at. That, together with other evidence I have heard, has persuaded me that we do need to consider the issue.
While we recognise the intent of the amendments, we cannot support them as such. However, that is not to say that there is no room for improvement. Clearly, there is. I believe that there is scope for improvement in the assets of community value area. I am pleased therefore to be able to offer—as an alternative to pushing this to a vote—that the Government will undertake an open and transparent review of the current arrangements in respect of assets of community value and the planning regime for pubs, including looking at permitted development rights. The review would start no later than straight after the local elections, with a clear commitment to report within six months—that is, to come back in the autumn with a view to taking action on whatever the review throws up.
We all want to protect assets of community value. The review would therefore look at the process of nominating and listing pubs as assets of community value—at how communities can better be supported to take advantage of the community right to bid and have a say in the future of their pubs, while appropriately safeguarding the rights of owners. We would invite detailed comments from communities, pub owners, local authorities and interested parties on where changes, improved guidance and other support would be helpful. This could include looking at whether there was a case for changing the planning rules—that would be part of the review.
For example, from my discussions it is clear that across the country there are inconsistencies of approach. The evidence brought forward by the noble Lord, Lord Scriven, demonstrated that and, of course, there are other examples of local authorities not applying the rules in the way they should. While decisions on whether to list a pub as an asset of community value are rightly matters for individual local authorities, we can look at whether further guidance for communities and local authorities would be helpful. In one case I heard about, a local authority did not want to list a pub because it served alcohol—which seems rather to miss the point of what we are seeking to do. So I would be keen to put a spotlight on cases like that and make sure that we get some sense into the system.
Alongside this, the review would consider the impact of the removal of permitted development rights for change of use—including the impact on owners. I would also be keen to look at issues around the raising of finance, which the noble Lord, Lord Kennedy, and others have raised. It is inconsistent; some financing bodies do not regard listing as an impediment while others do. The objective is to ensure we get best practice here. The review would enable us to look at this on a fairly short timescale and on a much broader front. This is not just about planning issues; it is broader than that. It is also about the assets of community value approach, which does work extremely well in many parts of the country. In the borough of the noble Lord, Lord Kennedy—indeed, on his doorstep—the Ivy House, where he is, perhaps, an occasional rather than a frequent imbiber, appears to be working very successfully. So there are examples that we can use to inform this review of where the approach is working extremely successfully.
I would be content to put on the face of the Bill that we will have a statutory review within the timescale I have indicated. I do not think I can be fairer than that. This would look at things across the range and come up with evidence not just on the narrow area of planning permission but around the assets of community value scheme—which all parties have signed up to as a valuable process—to see if we can find a way forward.
I have been pleased to engage with noble Lords on these issues. We have had some good discussions and we share the aim of doing something positive. However, I believe that a review within this tight timescale would be the answer. I therefore ask the noble Lord and other noble Lords not to press their amendments.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in this debate. I am very grateful to them all. I agree very much with the comments of the noble Lord, Lord Scriven. His analysis of the problems experienced in Sheffield was very telling and highlighted that action needs to be taken. The noble Lord, Lord Bilimoria, was right when he spoke about the variety of food and drinks sold in pubs. I live in Lewisham and the pubs there have different offerings depending on their clientele. The amendment simply asks that those who want to convert pubs apply for planning permission, and I am delighted to have the noble Lord’s support.
The most reverend Primate the Archbishop of York spoke about the need to protect profitable pubs and I very much concur with what he said. My noble friend Lord Berkeley made an important point about the value of pubs to the community, and he mentioned in particular Cornwall, where he lives. The noble Lord, Lord Tope, highlighted the loss of local pubs by the conversion of an asset through permitted development and not because they are failing businesses. I am also very grateful to have the support of the noble Lord, Swinfen. I thank, too, the noble Lord, Lord Framlingham, for his supportive remarks. Like him, I have no shares in pubs, although I have spent quite a lot of money in them over the years.
I return to my earlier remarks about the visit to the House by representatives of the Royal Voluntary Service. They talked about how they would take people to a pub not just to have a drink but to meet their friends and family. They emphasised how that was an important part of getting people involved in their community.
The noble Lord, Lord Marlesford, was right: this is a modest proposal which simply allows the community to have a voice. The noble Baroness, Lady Deech, made an important point about the need to show that pubs are treated no less favourably or more casually than any other business.
That brings me to the comments of the noble Lord, Lord Hodgson of Astley Abbotts, with whom I did not agree. It was an interesting intervention but it did not address the substance of my amendment in any way. This amendment is not about propping up failing businesses. If a business is failing and cannot pay its way, meet its liabilities and return a modest profit, it will close. Nothing in my amendment seeks to change that, and it would have no effect whatever on the type of issue that the noble Lord raised. Not one word of my amendment would keep open a pub or business that was failing and not meeting its liabilities. It would simply close a loophole and ensure that, specifically on change of use, a planning application would have to be made and the local community would get to have its say. It would do nothing more and nothing less, and really should cause the Government no problems whatever.
I thank the noble Lord, Lord Bourne of Aberystwyth, for his remarks. I have great respect for him. He is an effective Minister and an effective operator in this House. He deals with all noble Lords with great skill and courtesy, as has been evident as he has taken the Bill through this House, and I am very grateful to him, as we all are. I have considered all the issues in today’s debate and in Grand Committee very carefully. I do not do anything by halves but clearly we are at the point of calling time on this debate, and I now want to test the opinion of the House.
Lord Judd (Lab)
My Lords, I should declare an interest as an honorary officer of the Campaign for National Parks. I am glad that the noble Baroness has introduced her amendment and is standing by it here on Report because this is a worrying development. A growing number of people deliberately defy the regulations that are meant to operate. It is not just a matter of building something for which they do not have permission and looking for retrospective approval; a more sinister element is that they get approval with conditions attached—for example, compliance with national parks’ general policy. However, the people then try to do what they want with the building and do not observe the conditions. There is an indication that they are doing this believing, for example, that the national park authority will be hesitant about pursuing them because it is worried about its budget, the costs and all the rest if that person appeals.
We must take seriously the prospect that the quality of an area can change within a short period because, once one person has done it, there is an invitation for all sorts of other people to do it too. I am glad that the noble Baroness is making a stand.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in this debate on Amendment 38. I particularly thank my noble friend Lady Gardner of Parkes, who has vast experience of not just national politics but, in particular, London politics. I know she feels very strongly about this issue. I have great respect for her and for the way she has presented the case. I am conscious that she has raised it on a number of occasions, most recently in Grand Committee.
Other noble Lords participated in the debate and sympathise with the general thrust of what my noble friend is seeking to achieve. They include the noble Lord, Lord Beecham, and the noble Lord, Lord Campbell-Savours, who stunningly remembers being on a planning committee 43 years ago. It is hard to appreciate that, but he clearly has vast experience in this area. There were also the noble Baronesses, Lady Pinnock and Lady Maddock, and my noble friend Lord True, who talked about good neighbourliness, which goes to the essence of it. The noble Lord, Lord Judd, sympathised with the thrust of what is being said here.
At the outset, I remind noble Lords that one thing that we are seeking to achieve in this legislation and more generally as a Government—supported, I think, by noble Lords from around the House—is localism, and therefore we have to be a little careful about resisting the temptation every time something goes wrong to weigh in and say, “That is not the right way to do it”. I appreciate that there is more to it than that, but we need to keep that sense of perspective in our minds.
The ideal is, of course, that everybody should seek planning permission before they start work. That is what the majority expect and, indeed, what the majority of people do. Sadly, as my noble friend Lady Gardner of Parkes has experienced, that does not always happen. We therefore need a way to deal with these cases. Where a local authority considers that a planning application is the appropriate way forward, it can invite a retrospective planning application. Otherwise, local authorities have at their disposal a wide range of enforcement powers.
My noble friend’s amendment calls for changes to the retrospective planning application process. I am afraid that the Government’s position on this has not changed. I think I said in Committee, and I say again now, that there are many cases where there is a genuine error, so we need this process to deal with that situation rather than a harsher regime. The retrospective planning application process is there primarily to give those who have made a genuine mistake the opportunity to rectify the situation, but I appreciate that the examples that get into the media are much higher profile than that. We have had the haystack case, the palace in Kirklees and so on. Different considerations will apply there.
Local authorities have other tools at their disposal. Local planning authorities have flexibility, but planning applications have to be determined in the same way as any other application. My noble friend did not receive notification of the planning application. That is a mistake under the current law, and we need to look at proper enforcement. If she is able to bring forward evidence of the process not being followed, I would be very keen to look at it with officials, and I undertake to do so. I am sure that there are things that we can be doing better in relation to that with a view perhaps to looking to the future rather than this legislation. She has highlighted an important problem.
There is no guarantee that planning permission will be granted just because the development already exists. We have seen examples where that has not been the case, so we know that there are local authorities that are tough and are probably doing the right things in relation to some development. In some cases, the impact of the development may be mitigated by imposing planning conditions on the retrospective grant of planning permission. Otherwise, local planning authorities have a wide range of enforcement powers, with strong penalties for non-compliance, at their disposal. Where an enforcement notice is served and the person appeals on the ground that planning permission ought to be granted, the person is deemed to have made an application for planning permission and must pay a fee. That fee is twice the fee that would have been payable in respect of a planning application to the relevant authority seeking permission for the matters stated in the enforcement notice. This is in recognition of the additional work and would obviously act as a disincentive in that situation.
My noble friend’s amendment would make retrospective planning applications compulsory for all breaches of planning control. As I say, we cannot accept that because we see situations where that would be inappropriate, as I think successive Governments have done. It would be difficult to enforce and could lead to delays and additional burdens. My noble friend’s suggestion of a penalty fee in addition to charges in respect of the costs incurred by the local planning authority would unfairly penalise those who had made a genuine error, and discourage the submission of such an application for proper consideration by the local planning authority.
That said, I recognise that my noble friend has brought forward a very important issue. As I say, if she is able to come forward with some evidence of local planning authorities not doing what they should be doing and not enforcing the law, I would be very keen to see that; if other noble Lords have experience of it, I would be very keen to see that too. I can give that undertaking. However, while thanking my noble friend for bringing forward an important issue which clearly has resonance around the House, for the reasons I have outlined and in the light of the undertakings I have given, I respectfully ask her if she would withdraw her amendment.
Baroness Gardner of Parkes
My Lords, I thank those who have spoken. I have been very impressed by how clear they have been and by how many have had direct experience of exactly what I have brought forward, which encourages me to think that we have a case that should be looked at. On my last amendment, the Minister remarked helpfully that he would be willing to look at the issues raised, particularly in terms of secondary legislation that was possibly going to come forward later in the year. If he could similarly assure me that this would be the case here, and the matter would not be just dropped and forgotten, I would be very happy to accept that assurance. It is an important issue, and ordinary people feel justifiably aggrieved when something like that happens and they did not even have the opportunity to know that it was going to happen before suddenly getting the letter which says “We have granted permission”. You did not even know anything was going to be considered, and it has gone through the whole retrospective permission without anyone being notified.
Perhaps the Minister could do something to ensure that people considering retrospective permissions see that the correct consultation takes place and that people know that these matters are being considered. It is very upsetting for people when they suddenly find out that it is all a fait accompli. A very telling point indeed was made that if someone is doing this as a deliberate policy, they will do it again and again. A lot has come out in the debate today and I just hope that the Minister will say that he will look thoroughly into these issues in terms of possible regulations or secondary legislation on the subject at a later date.
Lord Bourne of Aberystwyth
My Lords, I shall respond to my noble friend’s suggestion. There is certainly no intention to postpone action on this where action is needed, but I would first like to see the evidence of what the problem is before identifying possible solutions to it. I certainly give her the undertaking that I very much look forward to her bringing forward evidence, but some of this seems to relate not so much to not having the legal process there but to the legal process not being enforced. If we see evidence of that, we can look at how it can be properly enforced, but I am very happy to engage in discussion with my noble friend. I think she knows me well enough to know that that would not be with a view to postponing action but with a view to amassing the evidence so that we can look at this.
Baroness Gardner of Parkes
I thank the Minister for that undertaking, which is very valuable. It is up to us now, particularly those who have spoken today and who clearly have direct experience of this. I would be very grateful if they would bring forward cases that they have come across so that the Minister has a fairly good list of things, ranging over different parts of the country, because the practice varies from place to place. He has given a very fair answer to my debate and for that reason I beg leave to withdraw the amendment.
Baroness Andrews (Lab)
My Lords, I could not agree more with the noble Baroness, Lady Parminter. There is a strong argument for consistency of vocabulary and for the notion of significance in planning and the treatment of national assets. Paragraph 132 of the NPPF states that:
“The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction … As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification”.
This new status has taken many years to achieve. I remember having discussions in the department about how to increase the protection of ancient woodlands at least a decade ago. Thanks to the Minister and his officials, we have now got to the point where we recognise that there is an equivalence between a natural and a built asset. When we are dealing with the question of loss—even more than damage, in terms of ancient woodlands—it is fair to look at what equivalence can be made in relation to the NPPF. It is not just the use of language but the significance we attach to the notion of damage, and how extensive or irreparable it is, and to what it means to be wholly exceptional.
The formula which my noble friend Lady Young has come up with is quite sensible. It will save time and grief for planning authorities and people who have to deal with balancing these issues. Greater clarity and some consistency would be a help rather than an obstacle to achieving the objective and facilitating development.
Lord Bourne of Aberystwyth
I thank the noble Baroness, Lady Young of Old Scone, for her kind words and for raising again the important issue of protecting our ancient woodlands and veteran and aged trees. She should not underestimate the role she has played in putting this on the agenda. She made a very powerful case, as did other noble Lords. I thank noble Lords who have participated in the discussion, including my noble friend Lord Framlingham, the noble Lord, Lord Berkeley of Knighton, and the noble Duke, the Duke of Somerset. The noble Lord, Lord Judd, spoke with great force and passion as he always does on these issues; his generous words were most kind. I agree with the noble Baroness, Lady Parminter, about ensuring that we have watertight protection, and with the noble Baroness, Lady Andrews, who talked about consistency of vocabulary and these “irreplaceable assets”.
In Committee we had a range of passionate and compelling speeches including from many noble Lords who have spoken to this amendment. The noble Baroness, Lady Parminter, the noble Lord, Lord Judd, the noble Duke, the Duke of Somerset, and my noble friend Lord Framlingham all spoke then, and again today, about protecting these irreplaceable natural resources. The noble Baroness, Lady Young, so evocatively—almost hauntingly—described them as the “cathedrals of the natural world”. I do not know whether she has ever thought about taking up another career as a wordsmith, but there is a Daphne du Maurier role to be carved out there. For somebody such as me, who is particularly attracted to cathedrals, that haunting image certainly brings it to life.
We have responded positively and are now consulting on the housing White Paper. This is not part of the legislation but part of the housing White Paper; we have succeeded in getting it in there and are very much committed to this. At the end of the consultation the Government will, we hope, clarify the protections for ancient woodlands and aged and veteran trees along the lines we have been talking about in this debate. The proposed change would put policies on ancient woodland and aged and veteran trees alongside other national policies. I am pleased that the proposal was warmly welcomed by the Woodland Trust and I thank the Trust for its role in helping on this. I believe we are making massive progress.
A consultation on the White Paper is open until 2 May. I encourage noble Lords and, through them, other sympathetic organisations, to contribute to the consultation, so that we can achieve something along the lines that noble Lords have been discussing. We are holding engagement sessions with a variety of groups alongside the consultation, so that everyone has the opportunity to contribute their views. The consultation will enable us to work together with these parties on appropriate protection for these irreplaceable assets and habitats.
Lord Kennedy of Southwark
My Lords, I will speak very briefly because I want to ensure that the noble Lord, Lord True, can get off quickly to his budget meeting tonight. I certainly support the noble Lord and the noble Lord, Lord Tope, in their amendment and I am sorry that I did not actually sign up to it; that was an omission on my part. I am also very glad to be part of this south London, all-party coming together, certainly on behalf of Labour-controlled Lewisham. We would be very much in support of the amendment in front of us here. The noble Lord has set out a compelling case, and I hope that the noble Lord, Lord Bourne, can respond positively to that. I know that he will certainly try his best and I look forward to his response.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lords who have participated in the debate on this important amendment. I thank in particular my noble friend Lord True, who has been very committed to this issue. He has been a tireless advocate of change in relation to permitted development rights for office to residential and has been extremely generous with his time, both with me and with officials, particularly in sharing with us his experience in Richmond. There is no clearer indication of his commitment to his borough than that he is here this evening prior to going to the meeting on the all-important budget.
I also thank the noble Lord, Lord Tope, for giving his perspective from Sutton. I appreciate that this is largely a London issue. I do not know whether it is a particular issue in the borough of the noble Lord, Lord Kennedy, but it seems to be more focused on London than elsewhere—perhaps for understandable reasons.
Before turning to the detail of the amendment and what I am proposing, I will say a few words about why the Government see permitted development rights that support the delivery of new housing as an important tool in helping to address the current housing challenges the country faces. That is true of the Government, it is true of the department and it is true of the Minister, my honourable friend Gavin Barwell, although he does not believe that it comes without the need to act in particular instances. I do not think he sees this as a totally monochrome issue.
Lord Young of Cookham
“(2) The temporary possession of the land must be authorised by the type of instrument (the “authorising instrument”) that would be required if the acquiring authority proposed to acquire that land compulsorily for the purposes for which it proposes to take temporary possession of that land.”
Lord Young of Cookham (Con)
My Lords, the co-pilot is back in charge and I am hoping for a smoother flight than the one I had on Thursday, when I encountered some turbulence as we flew over Clause 13. I listened with some interest to the debate we just had as a former councillor of the south London Borough of Lambeth; that was a very long time ago. We now move on to Part 2 of the Bill and amendments to the compulsory purchase provisions. Noble Lords will have noted that there are a large number of government amendments. These are mainly to ensure that the temporary possession provisions in the Bill work as intended and are fair to all, but they also respond positively to issues raised by noble Lords in Committee.
Amendments 41 to 43 amend Clause 16, which sets out the procedure for authorising temporary possession. In Grand Committee the noble Baroness, Lady Parminter, spoke eloquently to the amendment tabled by the noble Baroness, Lady Andrews, and herself about the need to ensure that land held inalienably by the National Trust is appropriately protected in the context of the new temporary possession power. As I indicated we would, the Government have considered the matter further, and I am happy to tell both noble Baronesses that we are now in agreement that the special interest of inalienable National Trust land, and its irreplaceable nature, requires particular protection.
Amendment 42 is the principal amendment in this group. It makes provision for any inalienable National Trust land which is required temporarily to be subject to the same additional protection as National Trust land which is to be acquired by compulsion. This means that where the National Trust sustains an objection to the taking of temporary possession of any of its inalienable land, the authorising instrument will be subject to special parliamentary procedure, in the same way as it would if the land was being acquired by compulsion.
The other amendments are technical and consequential. Amendment 41 clarifies that temporary possession must be authorised by the same type of instrument as would have been used if the land in question had been compulsorily acquired for the same purposes for which temporary possession is needed. Amendment 42 works by an exception to Clause 16(3)(c), which provides that where an authorising instrument authorises temporary possession then, for the purposes of the procedures for authorising and challenging it, temporary possession is treated in the same way as compulsory acquisition. Amendment 42 is therefore drafted so that it disapplies special parliamentary procedure for special kinds of land except for National Trust land held inalienably. As confirmed in the Government’s policy paper published in December 2016, special kinds of land other than National Trust land will be subject to the serious detriment test in the temporary possession regulations made under Clause 26. Amendment 43 clarifies Clause 16(3)(c) by removing a potential ambiguity allowing the clause to be interpreted in two different ways.
I now move to Clause 17 and Amendment 45. In Grand Committee, the noble Lord, Lord Shipley, raised the issue of whether there would be a time limit on acquiring authorities exercising their power of temporary possession after it had been authorised. This is an important matter and I am grateful to the noble Lord for raising it. Amendment 45 addresses the issue by providing that acquiring authorities must serve a notice of intended entry within three years from the date on which the compulsory purchase order authorising temporary possession becomes operative. Where temporary possession is authorised by a different type of authorising instrument—for example, a development consent order—the time limit for serving the notice of entry is within five years of it becoming operative. These limits are in line with those where land is being acquired by compulsion.
Amendments 47, 50, 50A, 50B, 50C, 51, 52 and 61A deal with the power to override easements and other third-party rights over land taken for temporary possession. Where land is taken by compulsion, acquiring authorities have this power, which is necessary to ensure that there are no impediments to the scheme going forward. These third-party interests are typically rights to allow underground services such as water, gas, electricity and telecommunication belonging to one property to pass beneath the land of neighbouring properties; there are also rights of light and of way and covenants restricting development to certain uses or density. Land needed for a temporary period may also be subject to easements or restrictive covenants, so to avoid problems such as those with insurance or litigation it is necessary for acquiring authorities to have the power to override these rights when they take temporary possession of land. That is what these amendments do. The provisions are modelled on the corresponding provisions for schemes where land is acquired by compulsion as set out in Sections 203 and 205 of the Housing and Planning Act 2016. Amendment 51 is the principal amendment, as it contains the power to override a relevant right or interest. Amendment 47 sets out the compensation provisions.
Baroness Parminter
My Lords, I sincerely thank the Minister for the consideration that he and the ministerial team have given to the comments and concerns that I raised in Committee. I offer those thanks on behalf of myself and the noble Baroness, Lady Andrews, who is no longer able to be in her place. In particular, I welcome Amendments 42 and 55, which specifically address the concerns that we had about the impact of the temporary possession proposals on the special land that the National Trust holds for the good of the nation. I am delighted with the way that the Minister has retained the status quo for the National Trust’s inalienable land. I thank him most sincerely.
Lord Young of Cookham
I am grateful to all noble Lords who have taken part in this debate, particularly to those who welcomed the amendments tabled by the Government to meet concerns expressed earlier on.
If I may respond briefly to the very important issues raised by the noble Lord, Lord Campbell-Savours, no one is more anxious than I am to see more houses being built. In view of his interest, he might like to come along on Thursday, when we have a debate on the White Paper, which will be a broader debate about housing. I will make three quick points about the question that he raised. First, Clause 29, the no-scheme principle, makes no fundamental changes to the principle of compensation. It seeks to clarify where we are by looking at past cases and setting out some clear rules, Rules 1 to 5, so that we can, in future, fairly assess the compensation that people are entitled to if they are affected by a CPO.
The second point, which really arises from that, is that we have always paid the market value. For as long as I have been involved in this type of legislation, when somebody’s land or property has been acquired, we have always paid the market value. That is the right thing to do in a fair society; otherwise, one is verging towards confiscation. If you are going to take away something at less than its value from an individual who does not want to part with it, that is approaching what could be called confiscation.
Lord Campbell-Savours
The Minister talks about its value, but its value prior to the planner signing it off and designating it as land for housing is agricultural. That is what it is.
Lord Young of Cookham
The compensation is based on the existing use value. Sometimes that might have a hope value, and in some of the circumstances he has outlined, it might not be zoned for housing, but the market value might be slightly above agricultural value because of so-called hope value. That gets priced in. The important point is that we pay market value. What the noble Lord wants to do is to acquire it at below market value to facilitate the building of more houses. I understand that, but that is not the principle on which people have been compensated for the last 40 or 50 years; they have always had the market value.
Thirdly, the no-scheme principle says that if the value of your property has suddenly gone up because of something that the public sector is building—a station or whatever—then that is disregarded for the purpose of assessing its value. That is what we do: that is what the no-scheme principle implies, so you do not get the benefit of the public investment that has accelerated the value of your land. I hope that I have satisfied the noble Lord. Although he is smiling, I suspect that I might not have. On the rather slender hook of Amendment 62, he has hung a very substantial debate, perhaps more appropriate to the Second Reading of this Bill many months ago. Of course, however, I would be happy to have further discussions with him if he has any continuing concerns about how land is acquired compulsorily.
“( ) The acquiring authority may use land as described in subsection (1) even if this involves—(a) interfering with a relevant right or interest, or(b) breaching a restriction as to the user of land arising by virtue of a contract.”
“(A1) The appropriate national authority must by regulations make provision about— (a) the reinstatement of land subject to a period of temporary possession, and(b) the resolution by an independent person of disputes about reinstatement.”
““relevant right or interest” has the meaning given by section 20(11).”
“CHAPTER 3CONSEQUENTIAL PROVISIONConsequential provision
(1) The Secretary of State may by regulations make provision in consequence of any provision of this Part.(2) Regulations under subsection (1) may amend, repeal or revoke any enactment.(3) In subsection (2)“enactment” includes—(a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978, and(b) an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales.”
Lord Bourne of Aberystwyth
My Lords, I will speak collectively to government Amendments 64, 72, 76, and 77. I listened carefully to the concerns raised during Grand Committee and am grateful to the noble and learned Lord, Lord Judge. He is not in his place but was most generous with his time in meeting with me between Committee and Report to discuss the matter further. I know that other noble Lords have focused on this area: the noble Lords, Lord Pannick, Lord Kennedy and Lord Beecham, and my noble friend Lady Cumberlege have all raised concerns on this.
These government amendments narrow the scope of the consequential power in Clause 40 to apply it to only Part 2 of the Bill—the part related to compulsory purchase and not the part related strictly to neighbourhood plans. We expect it to be most needed in relation to compulsory purchase and therefore have responded to concerns raised in Grand Committee.
The Government have also ensured that the new consequential power which applies to Part 2 of the Bill allows provision “in consequence of this Bill”, rather than provision which the Secretary of State,
“considers appropriate, to be made in consequence of this Bill”.
This change of words may appeal to those who thought that the original language was too subjective.
I do not wish to pre-empt any points that noble Lords may wish to make on this but I do want to address the concerns raised. We have responded to those concerns and significantly narrowed the scope of this provision in the Bill. I beg to move.
Baroness Cumberlege (Con)
My Lords, I declare an interest. As noble Lords are aware, I have a legal case pending. I took advice from the Clerk of the Parliaments and was told that the sub judice rule does not apply in my case. My other interests are in the Lords register.
I am very grateful to my noble friend Lord Bourne for adding his name to my Amendment 68. As he explained, it will delete the Henry VIII clause pertinent to the compulsory purchase and compensation part of the Bill and will narrow the scope of this clause. We had a robust debate in Committee and I was extremely grateful to the noble and learned Lord, Lord Judge, for speaking to the amendment there with such lucidity, force and wisdom. Again, he put his name to my amendment here but sends his apologies to the House because he has a long-standing engagement.
I am delighted that the noble Lord, Lord Pannick, is here this evening and will support the amendment, as will the redoubtable noble Lord, Lord Kennedy. Best of all, my noble friend Lord Bourne, the Minister, put his name to the amendment as well. I am sure that, having reached this agreement, he put in a huge amount of time and energy in negotiating to achieve what we have achieved this evening.
Lord Beecham
My Lords, I join other noble Lords in thanking the Minister and, indeed, in congratulating him on these substantive changes, which are ultimately, I suppose, a concession to the powerful arguments advanced, in particular by the noble and learned Lord, Lord Judge, and by the noble Lord, Lord Pannick, and other Members across the House.
It would have been good to see a similar approach from Ministers when we discussed the Housing and Planning Bill at great length last year. It is not a personal criticism of them; the Minister at that time, the noble Baroness, was not allowed to move in the direction in which Ministers on this Bill have been able to move, which I very much welcome.
For clarification, may I assume that my Amendments 71 and 75 are effectively covered by the welcome amendments that the Government have brought forward? That is right, and that is a repetition in the case of the previous amendments. However, I am not entirely clear about Amendment 67 in my name, which requires the Secretary of State to consult the Welsh Ministers before making regulations under Section 38. That proposal was dismissed on the previous occasion, although it had been a matter of strong concern to the Delegated Powers and Regulatory Reform Committee, to which the Government’s official response was extremely negative. I do not know whether the Minister can offer any assurance that, whether or not is contained in the amendment, the Government will consult Welsh Ministers. There was rather a general statement that this happens automatically. The purpose of including it in the Bill was to make sure that more than just custom and practice would apply in this case. It would therefore be helpful if the Minister indicated whether the government amendments cover my amendment or, in the event that they do not, whether he will again confirm explicitly that there will be consultation with Welsh Ministers before making regulations under Section 38. It would be preferable to include that in the Bill but, at the very least, a ministerial assurance would carry some weight. In those circumstances, if that were the position, I would withdraw my amendment.
Lord Bourne of Aberystwyth
My Lords, perhaps I may respond, particularly to the points raised by the noble Lord, Lord Beecham, in relation to Wales. I will pick them up at the end of this part of the review of other noble Lords’ amendments. I once again thank those who have participated in the debate, including my noble friend Lady Cumberlege, who set out a horrifying “Yes Minister” position. I am sure that one or two officials in our department will be listening but it is not regarded there as a training manual—although it possibly is the case in other departments. However, I give fair warning to anybody who thinks it is that it is not. The point was well made.
I am grateful for the welcome given by the noble Lord, Lord Pannick, to the position exhibited in the government amendments, as well as by the noble Lords, Lord Beecham and Lord Shipley. It was certainly the subject of my fruitful discussion with the noble and learned Lord, Lord Judge, who was instrumental in putting a strong case.
I confirm to the noble Lord, Lord Shipley, that the wording is the usual wording. I hope he is reassured by that.
Lord Kennedy of Southwark
My Lords, this is the last amendment on Report. We had a short debate in Grand Committee on 8 February. The amendments I tabled then and have tabled now are to help the discussion taking place between the department, the Government, Transport for London and the Greater London Authority in respect of the powers that those authorities think they need to dispose of land and help build more housing.
I am hoping the Minister will be able to respond to this and update us on where we have got to in discussions so far. I do not believe any agreement has been reached, as yet. I hope we are going to get somewhere and that we will not reach the end of this process with nothing having been agreed. That would be most disappointing. I got a fairly positive response from the Minister in Grand Committee. I will leave it there. I hope the Minister can respond positively and tell us that, although nothing has yet been agreed, the discussions are ongoing. We all hope that we will get some resolution before we reach the end of this process. I beg to move.
Lord Young of Cookham
My Lords, I am grateful to the noble Lord, Lord Kennedy, for the bridge-building way in which he moved the amendment. Amendments 65 and 66 seek to make new provision in the Greater London Authority Act 1999 which would amend the powers of Transport for London and the Greater London Authority to dispose of land.
Amendment 65 seeks to give Transport for London the flexibility to dispose of land for housing, even if a higher value use was available, provided the best consideration reasonably obtainable for housing use had been achieved. To achieve this, Amendment 65 would disapply the requirement for TfL to,
“act as if it were a company engaged in a commercial enterprise”.
Amendment 66 would remove the requirement for the GLA to obtain the consent of the Secretary of State to the disposal of land for housing, even if a higher value use was available, provided the best consideration reasonably obtainable for housing use had been achieved.
In Grand Committee, I promised to facilitate a meeting between the Government, the GLA and TfL before Report to discuss how we should respond to the concerns the noble Lord had raised. I confirm that that meeting has taken place.
We have been working with TfL to assess the impact of making the proposed amendment, but unfortunately we remain concerned about the potential impact of Amendment 65 on TfL’s overall receipts targets and consequently on public finances more generally. Given these ongoing concerns, I cannot accept the noble Lord’s amendment, but I can assure him that the Government will continue to work with TfL to address those concerns and ensure that TfL is able to meet both its housing and its receipts targets.
On Amendment 66, the noble Lord will be aware that the Government made a commitment in the housing White Paper to consult on extending the ability of local authorities to dispose of land at less than best consideration without seeking consent to do so from the Secretary of State.
Land disposals by local authorities are governed by a separate regime from those undertaken by the GLA. I do not believe it would be right in this Bill to reduce the protections established by the current requirement for consent of the Secretary of State for disposals by the GLA at less than best consideration. The White Paper did not specifically reference this GLA consent requirement, but I reassure the noble Lord that the scope of the consultation announced in the White Paper will extend to the GLA consent regime.
With the reassurance that we will continue to work with TfL and the GLA to find appropriate solutions to the very real concerns the noble Lord has raised, I hope he will be prepared to withdraw the amendment so that we can end Report on a consensual note.
Lord Kennedy of Southwark
I am happy not to press my amendments at this stage, but will just say that I do not know whether these discussions are ongoing. Is the noble Lord suggesting that there may be some light and that this may come back at Third Reading or is he suggesting that it is more likely that this will be addressed in a White Paper? Or could it be either? Some clarification on that would be useful. Important points have been raised. The Mayor of London has specific targets for building homes in London, and we all want to see that happen—but if you want to get it done, these things need to be addressed. With that, I beg leave to withdraw the amendment.
“( ) section (Consequential provision);”