Kew Gardens (Leases) (No. 3) Bill [HL]
Tuesday 21st May 2019
(5 years, 6 months ago)
Lords ChamberKew Gardens (Leases) Act 2019 View all Kew Gardens (Leases) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 174-I Marshalled list for Committee (PDF) - (17 May 2019)
“( ) The Secretary of State may not grant a lease for more than 31 years under subsection (1) unless he or she has consulted the Charity Commission on the compliance of the proposed lease with the functions of the Royal Botanic Gardens, Kew, under section 24 of the National Heritage Act 1983 and with sections 117 to 123 of the Charities Act 2011 (restrictions on dispositions of land) and the results of that consultation have been published.”
Lord Hodgson of Astley Abbotts (Con)
My Lords, with this amendment, we leave the harsh atmosphere of steel manufacture for the gentler world of Kew Gardens, and what better day to do so than the first day of the Chelsea Flower Show?
I will begin by making it clear what my amendment is not about. It is not an attack on the Bill itself, which I think has an excellent purpose in encouraging Kew, like all semi-public bodies, to make best use of its assets. It is not an attack on the institution itself. I explained at Second Reading that, though I am no plantsman, I am aware of Kew’s worldwide reputation, and it is part of our soft-power armoury. It is not an attack on the trustees—good men and women true—who, I am sure, are doing their best. It is not an attack on the Minister, who has given several passionate speeches in favour of Kew during the earlier stage of this Bill; and nor, indeed, is it an attack on his officials in the Box, who have been more than kind to us, and who have written, had meetings and helped those of us with an interest in this topic as much as could reasonably be expected.
But the French have a phrase—the French always have a phrase—“autres temps, autres mœurs”. For those of you who cannot understand my execrable French, it means “other times, other customs”. All of us who are involved and who have an interest in this Bill will eventually move on, and we cannot be certain that those who come after us will be as well motivated as today’s participants and protagonists. Therefore, we need to ensure that the keys to the castle are safely guarded for ever against two broad types of possible events. The first I could describe broadly as conspiracy—that is to say, in the future, a determined effort to misapply Kew’s assets, maybe in response to some shift in national government policy. The second type—in my view a more likely outcome, but I hope I am not using unparliamentary language—is a cock-up: that is, an administrative failing or oversight that is not caught in time.
This is the essence of my amendment. The Bill’s intention is to open up considerable financial returns by extending the maximum term of a lease from 31 years to 150 years. The Explanatory Notes focus on seven houses on Kew Green that are owned by the Crown and are said to be surplus to Kew’s requirements. Before we go any further, I would be grateful if the Minister could explain whether there are any other assets to which the Bill might apply in future that are currently hidden from view. In other words, is this a one-shot deal after which nothing else can happen, or, when the Bill is passed, might we suddenly find that a series of other assets is revealed?
My direct concerns are twofold. As I said, the Bill increases the financial resources available to Kew. Noble Lords will be familiar with the crime thriller book or film in which the grizzled detective with 25 years’ experience tells his naive new recruit to “follow the money”. That has been a feature of some charities’ behaviour in recent years—a tendency to overlook and downplay the fact that, as a charity, it has a stated public benefit objective and instead to be dazzled by access to funding. That is my first concern.
My second concern is potential inflexibility. Extending leases is of course financially very attractive. However, once the lease is signed, the asset is effectively gone, at least for 150 years. At Second Reading, a number of noble Lords, including the noble Baroness, Lady Kramer, drew attention to places where Kew’s service performance offering might be improved. So we need to be sure that any new arrangements balance the search for funding today with the constraints on Kew’s future operations and its overall performance in future. I would feel happier if we had a clear regulatory structure and lines of authority.
I will not repeat what I said at Second Reading. Suffice it to say that the Royal Botanic Gardens, Kew is a charity—but a charity with a difference. It is what is known as an “exempt charity”: that is, it can access all the benefits of a registered charity, on tax and so forth, but it does not—indeed, cannot—register with the Charity Commission, which therefore has no sight of, and no ability to watch, what is happening in the charity. Instead, an exempt charity has what is called a “principal regulator”, which in Kew’s case is Defra—the Minister’s department. However, “principal regulator” is a misnomer. The principal regulator’s sole task is to ensure compliance with charity law. When the principal regulator discovers malfeasance, it can do nothing about it. It has no enforcement power but has to pass the case on to the Charity Commission to take whatever actions are necessary. As I said at Second Reading, its role will be closer to that of a traffic policeman than that of a regulator. On top of this already somewhat confused situation, we have the provisions of the National Heritage Act 1983, which has a whole section devoted to Kew and gives the Minister very wide powers indeed, but which nowhere mentions the need for an exempt charity to comply with the provisions of the Charities Act, despite the Minister having the very wide powers to direct the board.
My noble friend Lord Eccles has been good enough to put his name to this amendment. I am delighted that he has done this, because as a past chairman of Kew he can speak with far greater authority than I can. I think he intends to focus on the part of the ministerial brief on power, so I will say no more about it now.
What is the department’s answer to this regulatory model? Its deus ex machina is the existence of a memorandum of understanding signed in 2010 between the department and the Charity Commission, in which—as I understand it; I have not seen it so cannot be certain what it says—the department binds itself to observing the principles of charity law in connection with Kew. I do not doubt that this represents an effective tactical bridge, but strategically it is very weak because an MoU is capable of being swept away at the stroke of a ministerial pen.
My amendment aims to reinforce that potentially weak bridge. It does so by binding the existing MoU into the Bill, requiring the Secretary of State in statute, before he grants any lease extensions, to consult the Charity Commission and to publish the results of that consultation. Some, perhaps including my noble friend, may argue that this is bureaucratic, to which I reply that Kew’s worldwide reputation is too valuable to take chances with. The need for these consultations will be infrequent—perhaps only one will be needed if my noble friend gives the answer that only seven properties will ever fall under the provisions of this Bill.
About quarter of an hour ago, the noble Lord, Lord McFall, moved a series of changes to the procedure rules of your Lordships’ House. One of them permits short explanatory statements to amendments. I thought I might be able to add one to this amendment, so I went to the Public Bill Office to ask whether I could. I was told, “Not yet, you are jumping the gun. You have to wait until the House has passed it”. If I were able to table a short explanatory statement summarising what I am trying to achieve, it would read as follows: “to clarify and strengthen the lines of responsibility for ensuring compliance with charity law for the trustees of the Royal Botanic Gardens, Kew, Defra, the relevant government department, and the Charity Commission”. I beg to move.
Viscount Eccles (Con)
My Lords, I have put my name to my noble friend’s amendment and will concentrate briefly on what I would describe as a gamekeeper and poacher situation. Because Defra and Kew together determine the interpretation of the general functions of Kew, which are set out in Section 24, they can come to a mutual definition of what is within its charitable purposes. My noble friend is asking whether there should be another arbiter of these matters.
At Second Reading, my noble friend Lord Selborne, who was for a while the chairman of the trustees of Kew, raised a question which had arisen in the 19th century when the Hookers were the directors. Kew is a very complicated institution, make no mistake about that; because of its history, science and complex estate, and because it is a public garden that is open all the time, it juggles choices. The question that arises out of Section 24 is how you make those choices and how you interpret that section. My answer is that Section 24 and the scheme of the Act are quite clear: Kew is primarily a scientific institution. It has six general functions, five of which are concentrated on the science. Indeed, the first two of those functions encourage Kew to study not only plants but related subjects, and to go out and proselytise about the information which it has put together in the most amazing way. The sixth function is the public parks function, which is quite cautiously phrased and, to be honest, pretty discretionary as compared with the science of Kew.
I hesitate to say that the Hooker controversy has arisen again, certainly not as it was in the 19th century. However, there is a need for Defra and Kew to come to a mutual interpretation of these functions and to publicise that interpretation so that both Parliament and the public can see clearly how they are being interpreted at the time. That would inform Defra and Kew in any discussion they might have with the Charity Commission under my noble friend’s amendment. I feel strongly that that needs to happen, so I strongly support the amendment.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I agree that it is important to have safeguards, and, as the noble Viscount, Lord Eccles, said, scientific research is one of the six major functions at Kew. However, it needs funding, and this amendment is unnecessarily restrictive. The trustees’ implementation of the MoU, when implementing the leases, must ensure that the ethos of the trust and that of the Charity Commission is adhered to, and there needs to be trust that they can do that. If an asset needs significant investment on a 31-year lease, which these seven houses probably do, it is not an asset but a liability, because there is no long-term plan for the asset. A longer lease of no more than 150 years will allow the leasee to invest in the property and allow for proper management of that asset.
I will listen to the Minister’s response with interest, but at this moment I do not feel obliged to support the amendment.
Baroness Jones of Whitchurch (Lab)
My Lords, we have considerable sympathy with the points made by the noble Lord, Lord Hodgson, and the noble Viscount, Lord Eccles. We have also tabled amendments which are another way of trying to address the same issue. Our concern is that this short Bill puts too much individual power into the Secretary of State’s hands, and we need to make sure that the right checks and balances are in place so that that power is used wisely. We seek to have an external body, such as UNESCO, to oversee the powers being allocated, with the Secretary of State unable to influence what UNESCO is doing. However, I appreciate that the noble Lords are coming at this from a different direction.
The point of the noble Lord, Lord Hodgson, was well made: it is not about now but about the future, about other times and places when other players will be in post, and we need to make sure that they exercise their responsibility wisely. Whatever statements were made about the current Secretary of State, this is about future Secretaries of State and indeed future members of the board, and the need to make sure that they have the correct relationship.
This is also about different circumstances. The noble Viscount, Lord Eccles, said that people juggle with choices, and that is absolutely right. They will always be under pressure and there will always be a shortage of money, so we need to make sure that the financial demands on the shoulders of the individuals concerned do not lead them to make short-term choices which would damage Kew in any way. I therefore have considerable sympathy with the amendment; I am interested to know how the Minister will respond to this and thank the noble Lord for raising this issue.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)
My Lords, I am most grateful to noble Lords, particularly my noble friends. The amendment seeks to apply consultation by the Charity Commission to the actions of Defra and RBG Kew, which, I should say, is a charity specifically exempt from direct regulation by the Charity Commission under Section 22 of and Schedule 3 to the Charities Act 2011.
I say this with passion: there is very little difference between what we are trying to achieve in protecting Kew when granting these leases and what we are trying to achieve for future generations, whoever has responsibility for these matters. The Bill does not affect any of the high protections already afforded to Kew; it is about changing a figure of 31 to 150. All the protections will continue to apply. I absolutely understand my noble friend Lord Hodgson’s point, and that of my noble friend Lord Eccles, who has great experience in this field; their intention clearly is not to attack the Bill or Kew—quite the reverse. It is in everyone’s interest to look after Kew.
I need to set out something by way of legal advice on the amendment; I received the advice from senior departmental government lawyers and counsel.
Lord Hodgson of Astley Abbotts
Before my noble friend leaves behind the issue of the leases, can he let the Committee know whether other assets could be leased, or are we talking just about seven properties on Kew Green?
Lord Gardiner of Kimble
I was coming to that. Let me be clear: Kew will focus on the seven residential properties on Kew Green. Kew has no immediate plans beyond the proposals for those properties. Obviously, the Bill does not stop future plans for any other property on the non-core estate, but Kew wants to ensure that the seven residential properties on Kew Green do not continue in their current unsatisfactory condition. The Bill is about maintenance of the non-core estate, and the whole basis of what we are doing is to enable those parts of the non-core estate not required by Kew—
Viscount Eccles
I am sorry to interrupt my noble friend. He has used the phrase “non-core” three times. How does he define that? Until you define your attitude to the six general functions in some detail, you cannot come to a judgment on what is core and what is not. Some properties on Kew Green are occupied by the Royal Botanic Gardens, Kew. Some of them, such as Cambridge Cottage, are historic. If I may say so, we must not get carried away with the idea that what is core and what is non-core is obvious. It is not at all obvious at Kew, which is a very complicated institution. What is core and non-core changes with fashion. Now, Extinction Rebellion is changing things too.
Lord Gardiner of Kimble
It would be more helpful if I could develop my arguments. It is important that I set out the legal point. My noble friend Lord Eccles is right that I should perhaps get a better legal definition of “non-core”. I am trying to explain, in what I would call lay language, that Kew has recognised that these properties on Kew Green are not required for the fulfilment of its functions, as set out in the National Heritage Act. Here, we are seeking to enable Kew to use the additional income to meet the challenges that I know my noble friend Lord Eccles had to resolve when he was chairman, as will the current and future chairs. I like his point, which is how in these difficult times we can invest more proactively in Kew.
Baroness Kramer
Perhaps I may just ask the Minister a question purely for clarification. I am not the slightest bit fussed about the seven houses on Kew Green as they are all under conservation orders and the local council will certainly be able to prevent any inappropriate development. We can also count on the fact that, no matter what the political colour of the council, the residents will make sure that that happens. What I am trying to understand is what else might be non-core. Does that include the parking area, or is it part of the non-core estate? Is that where we should be focusing our general concern?
Lord Gardiner of Kimble
As I say, it goes back to those areas. I want to pin down this point. This is absolutely not about suddenly cherry-picking: “That looks like a nice site; that would be quite lucrative”. It is about enabling longer leases to ensure that there is more money for Kew to do these things. Part of the issue, shall we say, is accessibility for the public, whether that be parking or other general facilities. Yes, such things are part of enabling scientific endeavour, but they also enable the nation to appreciate what Kew does by way of visiting the gardens.
Lord Gardiner of Kimble
I am sorry, but would it not be easier for me to develop the argument, because much of this will I hope be covered? I think that that would be more constructive.
I want to go back to the advice I have received, because my response to my noble friends and the amendment hinges on that. These leases of the land at Kew are not regulated by the Charities Act 2011 as the land is Crown land, so in its current form the amendment is not an appropriate safeguard. Kew Gardens is land held by the monarch in the right of the Crown and is Crown land currently managed by the board of trustees and Defra. The board was established under Section 23 of the National Heritage Act 1983. While that Act gave the board a power to purchase land and other powers to deal with land that it purchased, it did not transfer title of the land at Kew Gardens to the board, nor did it give the board any powers of management over the land at Kew.
In granting leases on the land at Kew Gardens, the Secretary of State will act as the freeholder on behalf of the Crown. The Bill does not create the power to grant a lease, merely to make a longer one. Since title is not held by the charity RBG Kew, these leases will not be regulated directly through charity law. It is not the intention of the Charities Act 2011 that the Charity Commission will be consulted on the management of Crown land as it relates only to the disposal of property that is in the title of a charity, which the Crown land at Kew is not. As I say, having taken counsel’s advice, it is important that I say this.
The Secretary of State, in exercising his powers of management of the land at Kew, balances the freedoms to manage Crown land free of any restrictions. Parliament’s intention was that the land should now be occupied by Kew for use in furtherance of its general functions under Section 24 of the National Heritage Act. However, in reality proposals will be initiated by Kew and in making the decision to support the grant of a lease, the trustees would act in the best interests of Kew, in line with the National Heritage Act and pursuant to the framework agreement between Kew and Defra. That agreement was laid before both Houses of Parliament last year, and I will circulate the framework document to my noble friend Lord Eccles and indeed to all noble Lords who have spoken in this debate.
Lord Campbell-Savours
Could I just clarify something? Does non-core land include land on which planning permission can be secured to build new residential developments?
Lord Gardiner of Kimble
All land within Kew and the Crown land, including non-core land—I used that unofficial language, shall we say, to describe the sorts of properties for which Kew recognises that it would wish to avail itself of this legislation—is subject to many protections. I digress slightly from these leases, but for instance if Kew, in its scientific endeavour, wanted to build a new science block or something to enable it to be ever more proactive, as my noble friend Lord Eccles said, given that this is a world heritage site with many listed buildings it would have to be in sympathy with all that. I perhaps wish I had not described it as “non-core land”, but it was a genuine attempt to distinguish between the estate—where all the functions of the National Heritage Act are undertaken, and those functions are set out in statute—and land and property, such as the seven residential buildings, that Kew does not feel it requires for its core functions and that would clearly require the protections I will unfold not only in this amendment but in others. All land that is going to be subject to this legislation has many protections.
Lord Campbell-Savours
I understand that, but I want to press this. Could a developer, to put it bluntly, build a block of flats on the non-core land, subject to the protections?
Lord Gardiner of Kimble
No. On the land under question, one of the seven residential buildings is not listed and all the rest are. On a later amendment I will go into some detail on the conditions that there would be on the leases, because that is probably where I can explain it better. In the leases there are standard conditions and those that recognise the world heritage site, the listed nature and all those things, so any proposal by anyone would have to go through all those hoops. If the noble Lord is asking me what would happen if someone came along and said, “I would like to build some modern flats in the place of those listed buildings”, I cannot see—I am happy to put this on record—the local authority agreeing to it, anyone saying that this was the proper function, or the Secretary of State granting a lease.
Lord Gardiner of Kimble
The protections are available for ever to ensure that this would not be the case.
Lord Gardiner of Kimble
I think it can be ruled out, because the protections are absolutely, fully in place for the land at Kew, whether the seven residential properties—
Lord Gardiner of Kimble
I am not forgetting those, because they are the areas being dealt with. I am going to make more progress; I am happy to continue these considerations outside Committee.
One thing is clear: if a lease was at odds with anything, the Secretary of State would decline to grant it in the first place. With this in mind, and on the advice of departmental lawyers, the Secretary of State would not grant a lease that was in any way contrary to Kew’s objectives as set out in the National Heritage Act 1983, the governance document of Kew Gardens dated July 2017, and the Kew framework document dated June 2018, since this would risk placing the board in breach of its own statutory obligations and the framework and governance documents. For example, no lease of any land or building could ever restrict public access to the plants, collections and other facilities at Kew as this would be contrary to Section 24 of the National Heritage Act 1983.
Lord Hodgson of Astley Abbotts
My Lords, my noble friend the Minister has been extremely courteous and accepted interventions from all sides of the House, which is very good of him. He may be regretting the briefing he provided for us before Second Reading, at which he was unwise enough to say, “I hope some of you are going to take an interest in this Bill and we get enough speakers”. He may have put his head into the lion’s mouth there.
I thank my noble friend Lord Eccles, who brings a wealth of experience and insight to this and brought out the difficult balances that are to be struck—no one is suggesting that what we are trying to tackle is easy. To the noble Baroness, Lady Bakewell, I say that of course we understand that Kew needs the money; but we need to make sure there are appropriate checks and balances and that we are not chasing the money too much. I am grateful to the noble Baroness, Lady Jones, for her general support.
My noble friend made three important points. First, he said that the focus is on seven residential properties but there are no immediate plans to go beyond that. That is a careful set of words. Secondly, he was very careful and courteous also in dealing with the “core” and “non-core” point, brought up by my noble friend Lord Eccles.
Finally, as I understand it, the legal advice is that this amendment does not have effect because the Crown land has no link with a charity and therefore with the Charity Commission. I am therefore not quite sure why the department needs to sign an MoU to ensure compliance with charity law because if it was just—
Lord Gardiner of Kimble
This is because the MoU relates to the plants, collections and functions, not to the land.
Lord Hodgson of Astley Abbotts
That is very helpful. So the MoU is narrowly drawn in that sense. I am grateful for that. I want to make sure that somewhere in this legislation we know how big a set of opportunities we are offering Kew and make sure that there are no unnecessary opportunities for side deals which may release funds for Kew in the short term in a way that does not deal with its long-term objectives, which we all support. We will carry on the discussion. In the meantime, I beg leave to withdraw the amendment.
Lord Whitty
“( ) Leases granted or extended under this Act shall be subject to the condition that activities on or in the land or buildings leased will contribute to, be supportive of, or be compatible with the core botanical, scientific, environmental, educational and amenity activities of the Royal Botanic Gardens, its World Heritage status and its charitable objectives.”
Lord Whitty (Lab)
My Lords, I will try to be brief, but I am afraid I will revert to many of the points which were touched on under the amendment moved by the noble Lord, Lord Hodgson, and I am not entirely sure that the Minister has entirely convinced me.
There is a central point. I am all for simplicity of legislation, but the Minister keeps referring to the seven cottages on Kew Green and the wish to extend the existing leases. Everybody understands that, and I do not think there has been any great dissent in the Committee about the desirability of so doing, but the Bill refers to,
“the power to grant a lease in respect of land for a period of up to 150 years”.
That to me means all land. The Crown can and does give leases. The specifics on the two royal estates which make up Kew add complexity to the issue, but as it stands we could have 150-year leases on any of the land that Kew covers. There is no distinction in the drafting of the Bill between core and non-core land. I appreciate the Minister’s assertions that this one of the most protected pieces of land in the nation. I accept that there are all sorts of protections built into the current situation. I also deeply appreciate the Minister and his staff and the staff of Kew meeting me and discussing this at some length, but I come back to the text of the Bill. There is no difference between us on the objectives, but for the first time 150-year leases could be granted under this Bill, without restriction, on any piece of land which the botanical gardens now cover.
I understand all the protections that are built in, but I go along with the French of the noble Lord, Lord Hodgson. Times change. Secretaries of State change. The arrangements for the Charity Commission will change. It may be that the implications of being a world heritage site change. It may even be possible that the political control of the London Borough of Richmond upon Thames changes dramatically—that is slightly less likely. Kew Gardens need to be protected against change. In so far as this Act will continue to be the basis on which leases are granted for 150 years over an unlimited period forward, we have to have rather more protections here.
The regulatory structure that the noble Lord, Lord Hodgson, has identified is complex. Therefore, it is almost certain that departmental structures and memoranda of understanding will change over the next 150 years and beyond, and rightly so in many respects. However, we are dealing with the Bill as it stands. As I said, I do not object to Kew’s ability to raise money. In many respects, I think that it will greatly benefit from private finance coming into the organisation—or more so than is the case at present, although it has been quite successful at raising money in recent years. However, we need a restriction on the way in which the land will then be used.
My amendment recognises the multifaceted aspects of Kew. Essentially, it is scientific, as the noble Viscount, Lord Eccles, said, but Kew’s objectives relating to science, the environment, education that stems from that science, and the amenity and enjoyment value—the sixth function, as the noble Viscount called it—all need protection. Therefore, my amendment stipulates that the use of the land should not challenge or undermine any of those objectives and outcomes. It is couched in pretty broad terms. It says that the use of the land must either contribute to or support Kew’s objectives—support can mean bringing in the finance for those objectives—or at least be compatible with them. The word “or” there in my amendment should perhaps be “and”, because in a sense compatibility with those objectives is my central point.
My noble friend Lord Campbell-Savours asked whether a developer could build possibly unsuitable residential buildings on those sites. The Minister said that everybody would object to that, so it would not happen. However, under the Bill it could happen. That is my point. At Second Reading I explained my ancestral and childhood love and affection for Kew, and that is shared with a wide range of people. However, certain developments in the rest of London, including those along the Thames in, say, the neighbouring borough of Wandsworth, which we can look at over the bridge down the road, have not exactly been compatible with their surroundings.
If anything impinged on Kew, it would be detrimental to its amenity value, it would probably undermine its UNESCO world heritage site designation, and it could change the public’s attitude towards it. I completely accept the Minister’s view that such development is unlikely. In the short term it is almost impossible because Ministers will have the present apparatus of regulation and planning controls at their disposal. I have no desire to challenge the intentions of the Minister, the department or the Kew trustees in bringing forward these proposals. However, this House and this Parliament need to say, “Well, yes, do all that, but let’s write in a general restriction to ensure that these probably imagined and scaremongering possibilities do not arise”. I would feel a lot safer, as I think other lovers and supporters would, if those restrictions were put in.
I hold no great attachment to the precise wording of my amendment. I would be delighted if at the end of this debate the Minister said, “We accept the principle but we will ask parliamentary counsel to draft an alternative form of words that will achieve the same objective”. That outcome would be very helpful and I would welcome the Minister saying something like that at this stage. If he could bring something forward on Report that achieved those objectives, I would very much welcome it. However, in default of that, I would like the Minister and the House to take my amendment seriously. I beg to move.
Baroness Jones of Whitchurch
My Lords, I have my name to my noble friend Lord Whitty’s amendment but I also have Amendment 4 in this group so I hope noble Lords will forgive me if I introduce it at this stage; it addresses the criteria to be used for any lease extensions.
I should say, as is implied, that we support Amendment 2 in the name of my noble friend Lord Whitty. This goes back to the Second Reading debate, where—I agree with the Minister—we are more or less on the same page; we are trying to find a way around some of these issues. During the Second Reading debate there was some concern from around the Chamber, expressed in different ways, about what was perceived as an inevitable weakening of controls over the use of the land and property, which could indeed result in developments which adversely impact on Kew’s global status and reputation. I heard what my noble friend Lord Campbell-Savours said. I am not sure that anybody will try to build a high-rise block of flats, but there could be issues around the commercial development of restaurants or shops and so on which could—not necessarily at the outset but as time went by—damage the reputation of Kew. These are some of the issues that we need to extract, and ensure that they are put to rest.
Baroness Tonge (Non-Afl)
My Lords, I support Amendments 2 and 4, at least in spirit. I first apologise for not having spoken at Second Reading; I had an unavoidable appointment so was unable to do so. Had I been here, I think I would have agreed with all the remarks made in that debate, which was excellent.
I have lived in Kew for 45 years. I was a local councillor for nearly 10 years and an MP for the area. I can claim to know Kew and Kew Gardens pretty well. My husband always used to say that I knew every letterbox in Kew, which indeed I still do. I am not sure that I could claim to know every tree in Kew Gardens but I know a fair number of them and I certainly know Kew Green very well. It is a very precious place, dear to residents and the nation.
I would like to go back very briefly to 1983. I remember well attending as a local councillor a public meeting in a school hall in Kew that had been called by the director of Kew Gardens and his team—they were not trustees then—to explain that Kew Gardens was going to become a trust. They explained the system of becoming a trust with trustees and no longer being directly funded by the Ministry of Agriculture, Fisheries and Food, as it was then. I rather disgraced myself at the meeting by being very outspoken; as noble Lords will know, I tend in that direction quite often. I said that I was terribly afraid that this would lead to Kew becoming a botanical theme park.
Of course, that has not happened. I was shouted down, quite rightly. However, over the last 30 to 40 years, I have noticed how much Kew has changed. If you come to Kew at Christmas or during the school summer holidays, it is geared to making money by getting children to spend lots of money on popcorn, ice cream and rides in pretty-coloured boats on the lake in front of the Palm House. It has been commercialised. The people who have spoken are quite right to worry that other forms of commercialisation could occur. It is a creeping sort of process and we need to beware of it. The present director, Richard Deverell, is absolutely terrific. He is a wonderful person and he is doing great things for Kew. However, we cannot guarantee that future directors will be as careful and as caring as he is.
I understand that Kew has to raise more money. Indeed, my noble friend Lady Kramer made the point at Second Reading that the entrance fee has now gone up to £16.50. It used to be a penny when I was a local councillor. Everyone loves to say that. Of course, £16.50 is hugely expensive for most families and we want to make it more widely available. Kew has to make more money, but we have to be careful. These amendments in particular say that we must make sure that this is not the beginning of more commercialisation at Kew Gardens, and a loss of the emphasis on the huge amount of botanical and scientific work that goes on there.
Viscount Eccles
My Lords, I have a great deal of time for what the noble Baroness, Lady Tonge, just said. I also have a great deal of time for this amendment. To me, the crucial thing is the words,
“compatible with the core … scientific … activities of the Royal Botanic Gardens”.
As I said, the balance at Kew is the crucial issue. It is primarily a scientific institution. The people who work for scientific institutions are not necessarily very good at defending their own wickets. Their minds are on other things—higher things, very often.
In supporting this amendment, I should like to talk about change. There has been quite a lot of talk about Kew’s funding. Kew is now 60% bigger than it was in my day, on three measures. A change has taken place. We employed about 500 people at that time. Kew now employs over 800 people. If you look at the Defra grant, as opposed to the MAFF grant from my last year, it is now over 50% higher in real terms than it was then. Noble Lords will find that if they look at almost anything at Kew. Its total budget or turnover—£111 million—is also about 60% higher in real terms than it was in my final year there, 1991. Kew has had a very good run. A lot of that is due to the support it has had from MAFF and then Defra, the tremendous support from the public and its own foundation, and its ability to attract funds from many sources, including partnerships.
However, a lot of other changes have taken place. Climate change, environmental damage and worries about food security have gone up the agenda—you name it: biodiversity, species extinction and so on. My concern is that Kew has the capacity to do much more. Indeed, I do not complain about it being much larger in real terms. It has the capacity to be much more proactive and to be engaged in some of the solutions to some of these problems that we all face. But if the balance shifts too far in favour of estate management and parks management, science will go down the agenda relatively. If noble Lords look at what is happening at Kew and the management structure in the round, they might come to the conclusion that the balance has shifted too far in favour of the sixth general function—the parks function—and too far away from the first five, notably the first two about the investigation and dissemination of science.
Therefore, I come back to the point that if we are removing the Charity Commission as some sort of umpire, which we are for legal reasons, that makes it even more important to deal with the dimension of the gamekeeper—Defra—and the poacher—Kew—which, between them can come to whatever conclusions they want about what is to the public benefit unless there is some other way of monitoring that situation. Clearly Parliament has a role, as do some of the movements out there, such as the Green Party and Extinction Rebellion.
The most important thing to achieve with the Bill is to have something in it that commits Kew and Defra to work out the appropriate state-of-the-art interpretation of Section 24, to publish what that is and to have it debated in whatever forum wants to debate it. At the moment there is no clear interpretation of Section 24. At Second Reading I referred to Professor Ghillean Prance’s vision of 1993. He had, and set out, a pretty clear definition of what Section 24 meant and how Kew should respond to it. Reading today’s much glossier and more expensive publications does not give me the same clear understanding of how Kew and Defra interpret Section 24.
I have a great deal of time for the amendment. If my noble friend on the Front Bench were willing, we would welcome a government-drafted amendment that covered the points made by the noble Lord, Lord Whitty. If not, we will have to return to this subject on Report.
Baroness Kramer
My Lords, perhaps I may suggest to the Minister a fairly straightforward way out of this. If I understand the House correctly—of course, I may not—and look at my own view, I do not think anyone has a problem with granting 150-year leases to the seven properties on Kew Green. As the Minister said, six are listed; the seventh is still within a conservation area. No matter what its political colour, the local council will not allow any kind of abuse of those properties through its planning committees. I am sure that being able to lease them for a larger sum of money to ensure that they are restored—I think some are close to falling on someone—would not be opposed by this House. The problem is that the Bill uses a much wider sweep to cover, as the noble Lord, Lord Campbell-Savours, said, a great deal more property than those seven houses.
Personally, I do not think the part of the botanic gardens that is so clearly the botanic gardens will be at risk but I want to raise the issue of the parking area. Probably just a few of us here are so familiar with the gardens that we understand the parking area; for those who do not, that area is quite peculiar. It is right on the river, so that some of the best river views in probably all the country are enjoyed by the cars. Part of the parking area is a sort of casual gravel and the rest is a mix of grass and trees, with people trying to park their cars between the trees. There are just a couple of parking meters. I cannot remember what one puts in now—I think it is around £7—but whether you park for five minutes or the whole day, that is it. It is not even supervised.
I know developers have looked at that site and cannot believe that it is put to such a use. The obvious answer for them is to make an offer to Kew to provide some form of alternate parking—there is great pressure not to allow people to bring cars to Kew at all—and use the site for some form of luxury housing. Your Lordships can see why that would be desirable. I think the community would have huge concerns about all this. It would be different if the property was developed to create new buildings for science and the core work—the collection and activities at Kew. But the fear that it could be used for housing or a couple of cafes, or whatever else, comes to mind when you know the area well.
Because that is a completely separate discussion, I suggest to the Minister that since Kew Gardens needs to be able to deal with those seven properties on Kew Green, why not narrow the Bill? Frankly, we could name the seven properties since there is only that small number of them. I am sure this House would then be able to deal with that legislation directly. Meanwhile, the constraint of a 31-year lease continues to apply, which means that if new development of the kind I have just described is to be explored, the Government would have to come back to the House and raise the question around the specific character of that development.
Baroness Warwick of Undercliffe (Lab)
My Lords, as this debate has gone on I have become more and more concerned. When I supported the Bill at Second Reading, it was very much on the basis of emphasising Kew’s world excellence in its particular fields of science. The emphasis on raising the extra money from new sources of private income was entirely based on an understanding that this was what the additional resource might be used for, so I am really anxious.
While I do not want to repeat all the arguments made so far, it seems that unless we specifically indicate or reinforce the original objectives of Kew in the Bill and establish why this change is being introduced, as my noble friends Lord Whitty and Lady Jones seek to do here, there is clear potential for reputational damage to Kew. It is not just among the public that there would be huge reputational impact; it would have an impact on Kew’s ability to raise further funds subsequently because its reputation will have been harmed. Even if the form of words is not right, given the aim of reasserting Kew’s main objectives—I was grateful to the noble Viscount, Lord Eccles, for reinforcing the point that the scientific excellence of Kew and its scientific interrogations are its prime focus—I hope the Minister will reconsider.
Lord Campbell-Savours
My Lords, I shall intervene only briefly. I sense that the Minister has difficulty in mouthing the words that residential property development could be considered on that site, not now but perhaps in 20 or 30 years’ time when there is a lot of pressure. I understand that, under residential development for flats, that land would probably fetch in the region of £1,500 per square foot. That provides some fairly expensive property. There will be people who, under pressure and needing funds, might take a chance and put in for a development, perhaps on the car park that was just referred to. I support the amendment suggested by my noble friend. In the event that it is rejected at this stage, I might come back at a later stage to see how the legislation, whose subtext is residential development in the long term, can be interfered with and greater restraints than currently exist introduced.
Lord Gardiner of Kimble
My Lords, I say from the outset that I take the amendment in the name of the noble Lord, Lord Whitty, with the seriousness that I know he takes Kew. I also recognise the direct knowledge of the noble Baronesses, Lady Tonge and Lady Kramer, down to the last tree in the car park, which is probably the one that unfortunately has had most bonnets interfere with it. I understand the local and historical knowledge of the former Minister and the desire of the noble Baroness, Lady Jones of Whitchurch, for protections. My noble friend Lord Eccles is a former chairman of Kew. The noble Baroness, Lady Warwick, talked about reputational damage and the noble Lord, Lord Campbell-Savours, talked about how we ensure that the Bill, which is laudable in so many senses, gives protection for ever. The whole basis of why I am seeking consent for the Bill is to help Kew. I absolutely recognise that your Lordships all want to help it too.
I am, therefore, grateful to the noble Lord for his amendment and for the clear indication that your Lordships regard Kew in the same light as I do, as the Minister with day-to-day responsibility for it. This is an establishment of unique value and an institution worthy of the highest protection. I was interested in what the noble Baroness, Lady Tonge, said about children. I was fortunate enough to go to one of the early openings of the children’s garden last week. I did not detect commercialism there; I saw a lot of children running around enjoying plants and understanding more about them. Taking off the rose-tinted spectacles of previous times, families have changed. We have all changed, as have the sorts of things that engaged us. I am afraid I did jump on a trampoline—it was a very small one. There are all sorts of things we can do to engage children. My analysis of the children’s garden and its design is that it gets children engaged. I want children from all backgrounds to think, “I want a life in plants; I want to come to Kew as a scientist; I want to work for Kew”. Those are my ambitions for Kew’s reach to local communities and beyond. I have teased this out myself, because I clearly want Kew to be protected forever. I am grateful for the opportunity to set out the restrictions.
First, as a UNESCO world heritage site and conservation area with 44 listed buildings, Kew Gardens is subject to some of the highest level of scrutiny and statutory approvals available under the planning system —as it should be, of course—and this will not change under the Bill. Regardless of any additional conditions that might be placed on the lease by the Secretary of State, any significant internal or external developments under the lease, whether structural or otherwise, would be subject to the relevant development permissions. The local planning authority, with advice from Historic England, in particular, would be responsible for deciding whether a proposed development should be allowed to go ahead and whether to grant planning permission for new buildings, major alterations, including any to listed buildings, or significant changes to the use of a building or piece of land. The Bill will not change or replace this governance process.
I hope it will be helpful to your Lordships to set out in detail the separate planning controls that protect Kew’s unique heritage. The Planning (Listed Buildings and Conservation Areas) Act 1990 is the legislative basis for decision-making on applications that relate to the historical environment. Sections 66 and 72 of the Act impose a statutory duty on local planning authorities to consider the impact of proposals on listed buildings and conservation areas. This is particularly relevant to the Royal Botanic Gardens and the Kew Green conservation areas, as well as the many listed buildings in the Kew UNESCO world heritage site that contribute to its outstanding universal value.
The National Planning Policy Framework, the NPPF, sets out the Government’s planning policies and how they are expected to be applied, dealing particularly with the historical environment. The Government’s national planning practice guidance gives further information on how national policy is to be interpreted and applied locally. As the relevant local planning authority, the London Borough of Richmond would apply the policies of the NPPF to its local plan, setting out policies for making planning decisions in its area, including those covering historic buildings and conservation areas. The local planning authority is advised by Historic England on all aspects of the historical environment, and by the Greater London Archaeology Advisory Service on all archaeological matters.
The NPPF provides clear direction for planning authorities on the determination of applications affecting designated and non-designated heritage assets. The framework recognises that UNESCO world heritage sites are of the highest significance and that great weight must be given to the conservation of their significance and their setting. It says:
“Heritage assets range from sites and buildings of local historic value to those of the highest significance, such as World Heritage Sites which are internationally recognised to be of Outstanding Universal Value. These assets are an irreplaceable resource, and should be conserved in a manner appropriate to their significance, so that they can be enjoyed for their contribution to the quality of life of existing and future generations”.
The framework also provides for key policy tests for developments that would harm the significance of designated assets, including world heritage sites.
I hope noble Lords can see that these sections clearly set out the importance of a world heritage site and the local planning authority’s duty to ensure that the greatest level of consideration and protection is applied when implementing national, London-wide and local planning policy. Kew Gardens is also located in a conservation area, a designation that ensures that extra planning controls and considerations are put in place. Any significant alterations to buildings or new developments would result in further scrutiny from the local planning authority as a result. Further, 44 of the buildings and structures on the Kew Gardens site are listed, acknowledging their special architectural or historic interest. This designation regime is set out in the Planning (Listed Buildings and Conservation Areas) Act 1990 and the list is maintained by Historic England. Any works to alter, extend or demolish Kew Gardens’ listed buildings would require listed building consent from the local planning authority and Historic England, whether planning permission is needed or not. Listed status covers the entire building, internal and external. It is a legal offence to carry out works to a listed building without permission. The Bill will not alter this.
As I have mentioned, any development on a world heritage site or its settings, including any buffer zones, should conserve, promote, make sustainable use of and enhance its authenticity, integrity, significance and outstanding universal value. In particular, it should not compromise a viewer’s ability to appreciate its outstanding universal value, integrity, authenticity or significance.
Baroness Kramer
Can the Minister tell us—clearly not now—what the status is of that car park land? It sits outside the wall of Kew Gardens, so I am not sure how far it is covered by any of the protections he has mentioned, even though it is the obvious site if you were going to have a commercial development. It would be extremely helpful to know what the protection is there.
Lord Gardiner of Kimble
I referred to buffer zones. This is an issue for Kew in terms of how planning proposals beyond the curtilage of Kew Gardens may, in turn, impose upon the world heritage site. I will write to the noble Baroness about the precise element of the car parks, but they are all part of Crown land, which is part of—ah, the noble Baroness is signalling that that may not be the case. May I come back to the noble Baroness on the question of that car park?
In conclusion, it is important to note that the Bill will not supersede the application of any existing legislation or policy already in place. This includes any proposals for new build or changes to the use of buildings, including on the wider estate. I mention that because Kew is a proactive scientific institution and therefore it is inevitable that, in protecting Kew and its wonderful historic site, we will have to have future state of the art scientific buildings with laboratories to help us find solutions to protect our natural ecosystem. So I deliberately raise the fact that, in protecting Kew, we will need new contemporary buildings to assist it in advancing scientific knowledge. I want to protect this great, historic site, and I am sure that it is our objective to entrench that for ever.
I repeat that I have looked at this in great detail and I cannot think of anywhere that has more protected elements, with so many varied facets, than Kew. So I say to the noble Lord, and to all noble Lords, that obviously I am in tune with what they want from this. I would like to continue discussions with the noble Lord, Lord Whitty, and other noble Lords, because I want to get this right. However, in the meantime, I ask the noble Lord to withdraw his amendment.
Lord Whitty
My Lords, I thank the Minister for that, and I thank all noble Lords who have supported the intent of the amendment. The Minister clearly spelled out the number of protections that currently apply in different statutes and regulations. I concede that they make Kew probably one of the most protected acreages in the world. Nevertheless, I think I am right in saying that none of the protections existed 150 years ago—and not all of them existed 31 years ago. Therefore, we cannot be sure that they will exist in 31 years or 150 years—yet the leases will have been granted when the Bill becomes an Act.
I am grateful for the Minister’s offer to discuss this further. I understand about all the protections, but they could all change—and, even if they do not, issues could still be raised. I am mindful of another UNESCO world heritage site: the Liverpool waterfront. A building adjacent to it has raised serious questions. I think that in the end UNESCO accepted that it did not offend the status of the site. However, looking at it as a lay person, one might think that it came dangerously close. If a similar building were put on the Kew car park—although I suspect the protections would stop it—it would challenge a lot of what Kew stands for and what it looks like.
I am not suggesting that we should preserve Kew in aspic. I recognise, as the Minister has just said, that new buildings and new facilities will be needed to keep up with the scientific and educational activities of Kew—of course that will happen. But my amendment allows for supportive and compatible development, and we must make sure that the outcome of such development is compatible with and supportive of the general objectives of Kew.
I am disappointed that the Minister did not offer to draft a rather better government amendment for Report. However, I look forward to discussing this with him to see whether perhaps he could go some way down that road. In the meantime, I reserve the right to bring this back should that development not pertain. I thank all noble Lords who participated in the debate and I beg leave to withdraw the amendment.
“( ) The Secretary of State must prepare and publish an annual report on the balance between income generated by leases granted under this Act and grant funding provided by Her Majesty’s Government to the Royal Botanic Gardens, Kew.”
Baroness Jones of Whitchurch
My Lords, Amendment 3 addresses the future Defra grant to Kew. It follows on from the very useful debate on this issue at Second Reading, which I thought reflected a great deal of consensus around the Chamber. We all recognised the importance of the vital research and educational work carried out at Kew, and were united in wanting to consolidate its world heritage site status. We also recognised that the additional money which might be generated by longer leases, initially estimated to be in the region of £15 million, could provide valuable additional investment in its infrastructure, scientific endeavour and visitor experience.
But there was also in that debate a common concern about substitution—the possibility that any additional funds could simply be used by government to cut the Defra grant further, leaving Kew in a no-win position and no better off. We have tabled this amendment to try to address these concerns.
Of course, there was only so much that the Minister could say to reassure us on this point at Second Reading. As he himself admitted when asked about future cuts,
“at times of national difficulty, all institutions and departments must play their part”.—[Official Report, 7/5/19; col. 1168.]
As we know, different Governments over many years have taken different views on how much should be spent from the public purse and on when to put the squeeze on expenditure through a policy of enforced austerity and cuts. So there is no guarantee that the Defra grant, which has been falling steadily over the years—from 90% in 1983 to 37% in 2018—will not fall further. As we heard in that debate, this has been the subject of real parliamentary concern, with a House of Commons Science and Technology Select Committee report warning in 2015 that cuts in government funding were placing Kew’s world-class scientific status at risk.
Our amendment is a simple one which seeks to ensure that the additional income which Kew generates from the careful management of the extended leases should go direct to the trustees for future investment on the site. At this stage this is a probing amendment, and, again, I do not claim to have worded it perfectly, but I suspect that all noble Lords share the sense of its intent. I look forward to hearing a positive response from the Minister and beg to move.
Baroness Bakewell of Hardington Mandeville
My Lords, transparency is really important, but I am concerned that a set of accounts should be produced just for the income from the leases on seven properties. That seems quite bureaucratic to me. I accept that the noble Baroness said that this was a probing amendment, so I will be interested in what the Minister has to say. I would have thought that these accounts could have been incorporated into the consolidated Kew accounts, rather than being a separate set. That would be a better way of doing it.
Lord Gardiner of Kimble
My Lords, I agree with the noble Baronesses that we should always be transparent. I hope that I will satisfactorily be able to explain why I think that these matters are covered.
First, pursuant to the National Heritage Act, a statement of accounts in respect of each financial year for Kew is prepared, examined and certified. A report on this statement is produced by the Comptroller and Auditor-General as head of the National Audit Office and laid before each House. Details of Kew’s income, including government, commercial and charitable donations, are all set out in this report, which is a public document.
I reassure the noble Baroness, Lady Jones of Whitchurch, that income received by Kew in respect of these leases, subject to this Bill, will also be reflected in this report. In addition, Kew itself publishes audited annual reports and accounts. These state how much grant in aid it receives each year from Defra and how much is restricted to specific projects. Within this report, Kew will report on funds from the lease income as part of its funding note.
Baroness Jones of Whitchurch
My Lords, I am grateful to the noble Baroness, Lady Bakewell, and the Minister. The report was just a hook or mechanism to try to flush out the issue of the distribution of the funds; in itself it will not add greatly to the parliamentary knowledge of income. However, I noticed that the Minister carefully skipped the point I raised about the distribution of funds between Defra and the money that Kew will raise in other ways in the future. That continues to be a concern but I recognise that just reporting on it is not necessarily the way to flush it out. Nevertheless, I am grateful to him for that comment, and I may reflect on whether there is a better way of raising that issue at a future stage, but for the moment I beg leave to withdraw the amendment.
“Requirement to publish information
Within one month of the day on which this Act is passed, the Secretary of State must publish an impact assessment including information about the property portfolio at Kew affected by the Act, the associated financial liabilities and income projections.”
Baroness Jones of Whitchurch
My Lords, Amendments 5, 6, 7 and 8 in this group are in my name. All of them are probing amendments, and and we already began to address some of the issues in the other debate, so I will try to amend my notes as we go along. They all address the need for more information to be provided about the financial impact of the Bill and the management of the longer leases.
Amendment 5 addresses the fact that the Bill does not include an impact assessment, and the background details of the financial consequences of implementing the Bill are indeed rather sparse. For example, as we know, the original estimates for additional receipts from the extended leases was quoted as £40 million, and this figure has now been scaled down to £15 million. However, we have not really had an explanation for the disparity between these two figures, or indeed an explanation of the basis on which that new figure of £15 million has been calculated.
The statement on the financial implications of the Bill in the Explanatory Memorandum is equally vague:
“Incomes from the change will depend on further development of Kew’s Estates Strategy and third party partnerships”.
However, in his response to me at Second Reading, the Minister reported that:
“The estate strategy is not in the public domain”,—[Official Report, 7/5/19; col. 1171.]
and is therefore not available to us, although he said that he would be happy to talk to me about it.
At Second Reading and earlier in this debate, a number of noble Lords asked for further details of the property portfolio at Kew so that we could assess fully the potential for future lease extensions beyond the seven residential properties initially identified, but they have not been forthcoming so far. In addition, the Minister referred several times to the difference between the core and non-core estate, which I know he is beginning to regret. At some point, we need to flesh out both that difference and how much of the non-core estate could be affected in future. There is a black hole where that information needs to be. I hope that he will come forward with further details on that at some point.
I moved the amendment not to be unhelpful but to understand the potential for future income generation—not just for those seven properties but for what could be in the pipeline beyond that. We would all benefit from knowing that. At the moment, it feels as though we are being asked to sign up to an open commitment with little in the way of financial guarantees to underpin it. We felt that the mechanism of an impact assessment would be a helpful way of getting that information.
Amendment 6 would require the lessee to gain permission from the Kew trustees before undertaking any refurbishments. The Minister addressed that issue in his earlier answers. Obviously, one advantage of bestowing longer leases on properties is that it gives the lessee more freedom of opportunity to improve the property they lease. It is important that we tie down the approval process for those refurbishment plans to ensure that they will all receive prior approval.
Amendment 7 would require the criteria for the grounds on which longer leases would be granted to be published. Again, we touched on this at Second Reading; there was a concern that, although proposals from the holders of very long leases may seem reasonable at the time, the holder of that lease—for 150 years, say—could, over time, deviate from the core values underpinning Kew’s activities. As I said, that is particularly true of commercial leases rather than residential ones. It is obvious to say so but 150 years is a very long time to share a world heritage site with a commercial leaseholder. There is concern that their activities could become more at variance in the longer term. Again, we touched on this issue in earlier debates. We need to be clear about the criteria for extending longer leases and to be assured that there will be more sensitivity here than for a standard lease in terms of the leaseholder’s expectations in respecting the property and the activities they carry out there.
Finally, on Amendment 8, we asked the Secretary of State to publish the criteria under which Kew could end a lease prematurely. That follows on from previous amendments, which address the need to be able to terminate a lease prematurely if the activities of a leaseholder, particularly one holding a long lease, are no longer acceptable to the trustees at Kew. Again, this may concern activities beyond those traditionally imposed on leaseholders but which could nevertheless damage the intrinsic values and behaviours expected of those using the Kew estate. Indeed, it could require automatic break clauses.
I am trying to tease out the basis of the argument. We all feel that this is not a question of having a standard lease as you would for a standard residential property. We may expect other expectations to be built into the lease, with special requirements to honour Kew’s mission. I am interested to know whether the Minister envisages having special leases of that kind. I look forward to his response on these issues. I beg to move.
Baroness Bakewell of Hardington Mandeville
My Lords, I am broadly supportive of the amendments tabled by the noble Baroness, Lady Jones, except that the time limit is a bit short. It is not like me to give the Government a lot of time to do something, but the period of one month set out in Amendments 5, 7 and 8 is not realistic; it should probably be closer to three months.
Amendment 6 is unnecessary because six of the properties are listed and all of them are in a conservation area. Richmond council, which was referred to earlier, will have to give permission for any refurbishments because the buildings are listed and certainly, during my time dealing with these things, I know that you have to consult with the people who are affected by the works. I would therefore expect the trustees of the Royal Botanic Gardens at Kew to be an official consultee anyway, so the amendment, as I say, is unnecessary.
As regards Amendment 7, the reasons were clearly set out at Second Reading why Kew Gardens wants to lease these properties for longer. Obviously it is to increase the income and to remove the maintenance costs, thus reducing its liabilities so that it can concentrate on its core values, as we have heard from the noble Viscount, Lord Eccles. Again, the period specified in Amendment 8 is too short and three months might be better than one month.
Lord Campbell-Savours
My Lords, I am supportive of these amendments but in saying that I was quite taken by the compromise proposal made by the noble Baroness, Lady Kramer. That was not the subject of an amendment but I hope that Ministers will seriously consider what she said when she proposed the withdrawal of part of the Bill.
What interests me is what will happen in the event that the Government decide to drive through the Bill in its current form with the possibility that at some stage in the future, when we are all pushing up daisies, someone might come along and say, “We are going to develop more of this site”. As I understand it, apart from the protections which the Minister has referred to, along with the tight planning arrangements and highly restrictive covenants that might exist in terms of the land, there is the possibility that it might be decided to raise money by selling land for development. We may not be here, but we are making provision now for what is to happen over the next 150 years.
The questions I am about to ask might sound a little hysterical, but they are not beyond the bounds of possibility. In the event that a developer was brought in, would the land be tendered for? Could the land possibly go out to public auction? As long as the conditions of the covenants and the restrictions and the protections are in place, the land could still go to public auction. Alternatively, could this be decided by the board under private treaty arrangements? Is there the possibility of a clawback on profits made by developers in the form of some kind of betterment levy? How would the ground rents be set? If the board or the department had control of the ground rents, that might well be the way of influencing to some extent what might happen in the event that the land was used for residential development in the future.
Another question that has to be asked if housing development takes place at some point in the future is whether there would be a social housing component. I understand that the local authority is subject to the provisions that apply elsewhere in London. What about subleasing? Would the state in some way be in a position to approve the subleasing of the land? I did not altogether understand what third-party partnerships were when they were addressed by the Minister at Second Reading given that I was not able to be here. Is there an as-yet-unpublished internal development options document written on the basis of maximising the revenue within the planning constraints I have already referred to?
I have never visited the site, although I will. I only really learned about it last night at midnight when I sat up in bed to read the documents and looked it up on Google Earth. It is a vast site, and it was only when I saw the size of it that I realised that on its fringes there may well be the potential for development, which people in the future may grasp at because they need the money, because other budget arrangements are somehow contracting. If the Minister cannot answer my remarks today, I would be grateful if he would write to me.
Lord Hodgson of Astley Abbotts
Following on slightly from the point made by the noble Lord, Lord Campbell-Savours, can the Minister address the nature of the leases? These will presumably be repairing and insuring leases, in the sense that at the end of the term of the lease Kew will want the property back in the state in which the lease was granted. It would be worth while if my noble friend could confirm that, either now or in writing later.
The one amendment in this group with which I have particular sympathy is Amendment 7. This seems to provide a way to get some of the answers to the questions posed by my noble friend Lord Eccles about core and non-core land and to the wider concerns in the House about whether this is a one-shot deal or whether there is—as the noble Lord, Lord Campbell-Savours, just said—around the periphery of the properties a whole series of small plots of land that might at one time or another be envisaged as falling under the provisions of this Bill. Some work on Amendment 7 could provide some answers and reassurance to those of us concerned at the nibbling away that might take place over a period of time in circumstances that are hard to foresee now.
Lord Gardiner of Kimble
My Lords, I am most grateful to the noble Baroness for tabling these amendments. Without going on for too long, I should like to take the opportunity to place on record a number of points.
Amendment 5 seeks to require the Secretary of State to publish, within a month of the Act being passed, an impact assessment covering any property that could be involved in these leases and any related financial liabilities and income projections. I understand that the aim of the amendment is to ensure public transparency on the scope and impacts of the leases that may be enabled under the Bill. I am most grateful to the noble Baroness for allowing me to put on record the detail already published in Kew’s annual report and accounts, which includes the valuations set for Kew’s heritage assets of land, buildings and dwellings, as well as those assets under restoration.
Kew has already estimated the value to Kew of the properties affected. I understand that the £40 million was in 2015. Since then, the assessment is that the value of leases and avoided renovation costs in the short term would be up to £15 million. This estimate is based on the seven residential leases, of which two are currently unoccupied properties that require substantial renovation. This means that there cannot be any more quantified projections other than those that Kew has given at this time.
The need to scrutinise the impacts of lease proposals will be fulfilled by Kew in taking specialist advice and preparing proposals for consideration by, first, its executive board and board of trustees and, ultimately, the Secretary of State. This includes the involvement of Kew’s finance committee, audit and risk committee and capital development committee, as well as Defra. As I have said, and as we have all realised, Kew will focus on the seven residential properties currently let on assured shorthold tenancies or empty. As I have said, Kew has no immediate plans beyond that.
I find it really rather alarming that everyone is determined that dreadful things can happen. The noble Lord, Lord Whitty, has already said that this is one of the most protected sites in the country. No Parliament can bind its successors. All we can do is use our best endeavours now, with the protections that are there in legislation. I am looking at the noble Lord, Lord Campbell-Savours. If a Parliament decided to amend the National Heritage Act in an adverse way, of course we would regret it, but it is for future Parliaments to decide those matters. What we can deal with today is having all the protections we possibly can. I have sympathy with all that the noble Lord, Lord Whitty, is seeking, but it is on record—even from the noble Lord—that this is the most protected part of the kingdom.
The development of all aspects of the Kew estate will remain subject to the approval of its board of trustees and in line with Kew’s world heritage site management plan, just as any shorter-term leases already would. Although I fully endorse the desire for meaningful transparency in these leases and the motivation behind the amendment from the noble Baroness, the degree of variation means that it would be best served through Kew’s existing proposals and commitments. Indeed, the lease would be publicly available at the Land Registry when the sale completes.
It is the view of my department that this amendment would risk providing information that would not be precise. Of course, it is subject to market conditions. In addition, the Secretary of State has to follow the guidance in Managing Public Money, formerly the Treasury Green Book, which requires value-for-money assessments.
The noble Baroness, Lady Bakewell, referring to Amendment 6, made some important points about the local planning authority. I understand and share the wish of the noble Baroness, Lady Jones of Whitchurch, that any refurbishment or development should require the correct approval so that it does not compromise the property—which is Crown land—the world heritage site or Kew’s functions and activities in any way.
Kew’s activities, including any lease under the Bill’s provisions, are overseen by Kew’s board and the Secretary of State. The discussions and negotiations about leases would be initiated by Kew in accordance with its governance. This includes the trustees’ code of best practice, the National Heritage Act 1983 and the framework document between Kew and Defra. The lease itself would be prepared for and on behalf of the Secretary of State using specialist property lawyers and specialist commercial advice.
There will be numerous bespoke conditions in the lease agreement itself that shall offer the appropriate and relevant protection to Kew under this amendment. As I shall detail, these would deal with the unique nature of the land at Kew and, in particular, the listed buildings on Kew Green and, in doing so, provide complete protection for the Secretary of State and Kew.
As well as conditions bespoke to Kew, which I shall turn to in a moment, the usual lease conditions would apply. The usual leaseholder covenants include obligations not to do anything that contravenes planning; to comply with any estate regulations that may be drawn up; not to make any alterations to any part of the internal or external structure of premises without freeholder consent; to submit plans to the freeholder if consent for alteration is required; not to sublet or transfer premises without freeholder consent; not to interfere with or obstruct the performance of a freeholder in carrying out its duties; not to use the property for anything other than the use specified in the lease; not to access the property other than as specified in the lease; and not to cause a nuisance from the property. In addition, I assure your Lordships that all Kew leases will expressly include a leaseholder obligation not to do, or allow to be done, anything that will bring into disrepute the Royal Botanic Gardens, Kew, including its status as a world heritage site or the listed building status of any house, for example.
Some of the houses will contain features typical of buildings of this age, such as plasterwork ceilings and cornicing. Given their listed building status, features such as these may not be altered, so any lease would provide that such features must be preserved and may not be damaged in any way. As the noble Baroness, Lady Bakewell, said, the local planning authority, advised by Historic England, is responsible for deciding whether a proposed development, or even internal renovation, should be allowed to go ahead.
I hope I can also reassure your Lordships that the Secretary of State would absolutely not grant a lease without the recommendation of the Kew trustees. The Secretary of State would take advice from specialist property lawyers as to the appropriate level of protection given Kew’s listed building status and the world heritage site. Therefore, I believe that robust procedures are already in place to ensure that the correct approvals are made. I am as concerned as anyone that none of these buildings be refurbished insensitively, but the terms of any standard lease, bolstered by special conditions for Kew and alongside the governance that the local planning authorities, Kew trustees and the Secretary of State provide, ensure that the points in the noble Baroness’s amendment are already covered.
Turning to Amendment 7, I am again grateful to the noble Baroness for the opportunity to clarify the criteria that would apply. Instead of taking three months, I hope I am able to put on record now these points. I re-emphasise that Kew’s current proposals extend to only seven properties, two of which are unoccupied and none of which is part of the core estate. These leases are being pursued to free up vital revenue for Kew, and will do so with no impact on Kew’s core functions. I am pleased to reassure your Lordships that these criteria derive from the various protections already in place, which I have strongly emphasised. It is, however, absolutely right that the noble Baroness, Lady Jones of Whitchurch, referred to respecting the property, because that is exactly what we must do.
To preserve the protection of the property and Kew’s functions, obligations on the leaseholders would include the following requirements, which I will place on record in the context of Amendments 7 and 8: to repair and keep the property in good condition and decoration; to allow Defra or Kew to access the property to carry out any necessary works; to make good any damage caused by the leaseholder to the property or to the Kew estate; not to do, or allow to be done, anything that will bring RBG Kew into disrepute, including its status as a world heritage site; to comply with the provisions of any statute, statutory instrument, order, rule or regulation, and of any order, direction or requirement made or given by any planning authority or the appropriate Minister or court; not to alter any of the property internally or externally without the express written consent of Kew’s board of trustees and the Secretary of State; not to sublet any of the property without the Secretary of State’s consent; not to assign, transfer or sell their interest in the property without the Secretary of State’s consent; not to interfere with or obstruct the performance of the duties of the Secretary of State, or Kew by way of servant; not to use the property for anything other than the use specified in the lease; not to access the property other than as specified in the lease; not to leave the property unoccupied for a certain period of time; and, finally, not to cause a nuisance from the property. I want to be very clear that there has been proper consideration of this in reference to, as my noble friend Lord Hodgson said, the status and condition of the property.
The noble Baroness was right to raise also the issue of forfeiture. The right to forfeiture occurs when the leaseholder under a lease breaches an obligation contained within a lease. What these obligations may be are a routine part of lease agreements, and so are the conditions for termination of the lease—I have already placed these on the record—as to obligations that will ultimately result in forfeiture if breached under a Kew lease. As I said, the lease agreement itself will be drawn up by specialist property lawyers acting on behalf of the Secretary of State to reflect the various considerations and protections that need to apply in respect of the property itself, the world heritage site and Kew’s functions and activities. I should stress that lease agreements will need to be, and shall be, drawn up and agreed on a case-by-case basis by specialist property lawyers, even though they will have most conditions in common.
Forfeiture of a business lease and forfeiture of a residential property are not the same. This Bill does not seek to disapply any protection a leaseholder may have from unlawful eviction. The forfeiture clause in a lease cannot be one size fits all, since the court looks very seriously at any possession claim, and it is a complicated area of law. This does not, however, negate the fact that breach of leaseholder covenants under leases created by this Bill—such as an obligation to keep in good repair—can and will, if appropriate and if sanctioned by the courts following sufficiently serious breaches, result in the Secretary of State taking back possession of the property.
Baroness Jones of Whitchurch
My Lords, I am very grateful to the Minister for spelling that out in the detail he did. Many of the points he raised provide some reassurance. I was particularly pleased that he talked about bespoke conditions, and that leases will not be just standard residential or commercial leases but will have a bespoke element that applies specifically because of the unique nature of being within the grounds of Kew. I am very grateful for that.
A theme has come out of our discussions on the various amendments. We have assumed, and the Minister has talked about, this relating to seven properties. As the noble Baroness, Lady Kramer, said earlier, none of us has a problem with the original seven residential properties that have been earmarked for a longer lease. Our concern is what happens after that, and I still feel that we have not really been enlightened on that point.
I cannot believe that Kew has no other information about its portfolio and other properties that it may want to put into the mix in future. We are still trying to grapple with the Minister’s phrase of “core” and “non-core”, and I think we need more information. I would welcome the chance to sit down with the Minister and figure out which properties are “core” and “non-core”, and what other properties might be in the pipeline. I realise that this may not happen immediately but in the medium to longer term, and the Bill will relate to aspirations that Kew might have in future. I feel we are still in the dark, and I would like more information, but this is obviously not the time to go into that in more detail. For the time being, I beg leave to withdraw the amendment.