Subterranean Development Bill [HL]
Baroness Hanham Excerpts(12 years, 9 months ago)
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The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I would like to start by adding my appreciation to my noble friend Lord Selsdon for introducing this Bill to the House. His commitment to this difficult issue is to be applauded. I am pleased to have the opportunity to respond to the debate today and to assure noble Lords that I have listened very carefully to the views that they have expressed.
I fully understand that the issue of subterranean development is one which excites anyone who is affected by it. It involves many aspects of planning and regulatory controls, particularly during the construction process. Those include, of course, noise and general disturbance, as well as issues about the consistency and effectiveness of enforcement. All those issues have been raised this morning. Noble Lords will be aware—indeed, their attention has been drawn to it—that for some years I sat on the planning committee of the Royal Borough of Kensington and Chelsea. At that time, I was often taken aback by the scale of the new basement developments that were being proposed. They were frequently to be used as additional accommodation, but much more often for swimming pools, gyms and home cinemas, involving extensive excavation. I know that it is those types of basement extensions that are of great concern but most of them will, of course, require planning permission.
The noble Baroness, Lady Gardner, drew attention to the fact that the Royal Borough of Kensington and Chelsea has its own guidance. Indeed, we just heard that Hammersmith and Fulham also have theirs. It is a requirement, at least from the Royal Borough of Kensington and Chelsea, that when planning permission is required the application is accompanied by a series of reports from engineers and hydrologists to ensure that the excavations can be safely carried out. It can be done and is already being done. I take the concerns most seriously and do not underestimate the disturbance and distress that subterranean development can cause. I know that this is a particular problem in the four central London boroughs—Hammersmith and Fulham, Westminster, Kensington and Chelsea, and Camden, where this type of development is most prevalent, but I full accept that this is a creeping problem and is bound to appear elsewhere.
Noble Lords will recall that during our consideration of the Localism Bill, I committed to explore with representatives of those affected in these boroughs how we could make the provisions that already exist work better. I am very grateful to those noble Lords, including the noble Earl, Lord Lytton, and residents societies who have worked with me on this and, of course, the noble Lord, Lord Selsdon. We have met on a number of occasions to consider their concerns and possible solutions, and my officials have been following up on commitments that we have made. Just last week I had a very productive meeting with Members of Parliament of the boroughs in London that are most adversely affected. The Member representing North Kensington, Karen Buck, and Mark Field generated a debate in the other place. They were accompanied by residents who had personal experience to share and solutions to propose. Such discussions will continue as we strive to ensure that all those with the power to act do so in the best interests of those experiencing the greatest problems. As part of this work, I intend soon to convene a meeting with the London boroughs most affected to see whether we can find a blueprint for a common code of practice and how they can support each other in this and in disseminating good practice.
It is also true that local plans and neighbourhood planning will be able to deal with this issue. It is extremely important that this matter is taken up in that regard. I would like to take this opportunity to pay particular tribute to the local residents groups. They have worked tirelessly across neighbourhoods to ginger-up support from developers and local authorities to try to prod them to establish considerate development. I was interested to hear from the noble Lord, Lord Rodgers, that Highgate has now joined in. I shall make a note of that.
Residents associations are perfectly realistic in recognising that subterranean development will happen, and that in most cases, when basement work is complete, there are no visual impacts. But, as noble Lords said, their concern is that there may be many months during the construction period when neighbours can be left at risk of noise, disturbance, and potential damage to their properties, and they are frustrated by their impotence to deal with it. We recognise that neighbours and local residents are right to expect effective and responsible management of development and swift action when things do not go the way they should. Legislation already provides for most of the solutions to these problems if it can be, and is, used in the right way.
The Bill’s provisions for a new consenting process for subterranean developments in many ways replicates the requirements of the existing planning system. When permission is required, proposed development can be assessed against locally agreed planning policies that should reflect the priorities of the area. Importantly, conditions can be applied by the council regarding the control of the development. Where permitted development rights are considered to apply, the local authority can, by making an Article 4 direction, as has been already suggested, ensure that they can also bring such development under their control. I hear what my noble friend Lord True says, and I have heard it said, that Article 4 is not always an easy thing to do, or the possibilities of compensation arising from it. The Article 4 directions have been made much easier in recent times for local councils to apply and for the restriction on the compensation that can be sought.
The Bill sets out the information which a developer must submit as part of the new consenting process. I am pleased to reassure this House that developers can already be required to submit much of this information as part of the planning application process. Similarly the Bill replicates the existing requirements to consult neighbours and other interested parties. The provisions in the Bill for consultation between the parties and the resolution of disputes serve the same purpose as the Party Wall etc. Act, which already applies to most subterranean development work, and the new requirements under the Localism Act for any developers to consult neighbours in the local community before undertaking work. That should ensure that a permitted development does not come as a surprise to the adjoining neighbours. It is recognised that a detailed and strong party wall agreement between the building owner and neighbours is an essential measure. That should ensure that all parties are clear on the detail of the work being carried out, the time and manner of executing any work and the arrangements for resolving any disputes, including compensation in some cases. I hope that the noble Earl, Lord Lytton, will agree with me. If he does not, we need to look at it. Compensation is something that can be negotiated. It is equally important that such agreements are complied with and that those in breach can be held accountable.
I am pleased to have the opportunity to discuss with the Royal Institute of Chartered Surveyors its experience of party-wall agreements. The noble Earl, Lord Caithness, has already done so and the noble Earl, Lord Lytton, has clearly been involved in what we have been talking about. I can say to them both that we will certainly explore further the issues of bonds and insurance, although I fear that this will need primary legislation and time may not be available. We need to see whether there is a clever way of dealing with this.
I hope that I have indicated that rather than creating new powers, we need to see that the existing ones can be strengthened or made better known. For example, the role of building control in inspecting the development to ensure that it complies with the performance standards set out in the Building Regulations is really important. Similarly the environmental health departments should be ready to act under the statutory nuisance regime set out in the Environmental Protection Act 1990, when there is excess noise, dust and other nuisance. The Control of Pollution Act 1974 also allows councils to enforce on matters like equipment, hours of working and noise levels, in accordance with a code of conduct approved by the Secretary of State for the Environment, Food and Rural Affairs. Finally, the safety of a building can be ensured by authorities under the provisions in the Building Act 1984 which allows local authorities to take action in respect of a dangerous structure.
These provisions are designed to provide protection against the adverse impacts of development, including subterranean development. However, they will be useless if local residents do not know about developments, or how to access help from appropriate sources. It is therefore essential that we find a way not only to disseminate the information but to have it easily available with good contact details. Nobody wants to be fishing around, and be passed from pillar to post, when they believe that enforcement action is required.
It is clear that there are regulations and legislation that local authorities can enforce. There is legal if not totally adequate redress under the party wall Acts, and it is essential to impress on those who represent the interests of landowners that they must act responsibly. Local provisions and protocols must ensure that those who carry out subterranean development, whether they do so with or without planning permission, are aware of their responsibilities to the local community, and of the consequences of failing to take these responsibilities seriously. I have heard noble Lords say this morning that in many cases this is not wholly effective, and we will need to look further into it. Development from which some people take benefit must not unreasonably affect others.
As the noble Lord, Lord McKenzie, said, it is consistent with the theme of localism that local authorities should produce their own guidance and should offer other services to cascade information to ensure that developers and neighbours are alerted to the controls that exist and to the means by which they can be accessed. I have already spoken of some of the work that we in central government are doing to try to ensure that the existing laws and regulations are recognised. We are also looking to see how guidance from organisations such as the Royal Institute of Chartered Surveyors may be harnessed and disseminated. This will be complemented by our work with other organisations that have an interest in the construction of basements, to cover the concerns that have been raised. We will also review the party wall Acts to see if they need to be strengthened, and the guidance that the department issues.
I hope I have made it clear that further legislative measures are unnecessary. However, we must find a way to ensure that all the issues that have been raised in the Bill are taken into account, to see where legislation may need to be updated. Building Regulations are going through scrutiny at the moment. The Royal Institute of Chartered Surveyors may want to respond to the consultation.
I end by thanking my noble friend Lord Selsdon for introducing the Bill, and noble Lords who took part in the debate. I hope that the discussion today will serve to highlight both the problem and possible solutions. I appreciate that there will be a Committee on the Bill. At present, the Government will not be able to support the Bill into legislation, but we are committed to continuing to help local authorities and residents find an acceptable way of going forward.
Localism Bill
Baroness Hanham Excerpts(13 years ago)
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Baroness Smith of Basildon
My Lords, I have a great deal of sympathy with the amendment of the noble Baroness, Lady Eaton. I declare an interest as a vice-president of the Local Government Association.
Before this legislation, I had never come across or heard the word “misinstalled”—it is a curious turn of phrase—but clearly if an alarm is misinstalled the idea of it being maintained at relatively regular intervals is of course the responsibility of the business holder in that company. That has to be undertaken. That is why this is a reasonable amendment.
The only question I have on that concerns the evidential burden. If the business owners had taken all reasonable steps to ensure that the alarm system was properly maintained, would any action be taken against the company which had failed to do so or would it be a matter for the business? There is a slight legal quagmire here, and although I am in no haste to make extra work for lawyers, I broadly support the amendment. It is entirely reasonable.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I thank the noble Baroness, Lady Eaton, for tabling this amendment and I hope that she will not be too offended when I say that I am not going to accept it.
The fire and rescue services often raise the issue of the number of mobilisations to faulty fire alarms, perfectly reasonably, at non-domestic properties. We agree that this is a significant issue and we have addressed it in the Bill by proposing that, following local consultation, fire and rescue authorities will be able to recover their costs in cases of persistent false alarms in non-domestic premises where fire alarms have malfunctioned or have been misinstalled—I believe that is the word.
It is certainly true that some fire representatives support the amendment—indeed, the noble Baroness, Lady Eaton, laid out who they were—and want to widen the scope of the clause to cover a wider range of incidents. However, on the other side of the coin, there are others who do not agree with the amendment and are concerned that it is confusing and will lead to additional burdens.
It is vital that we keep charging provisions as straightforward as possible and do not create uncertainty for businesses or fire and rescue authorities which seek to recover their costs. If we were to widen the scope of the clause in this way, it would mean that the fire and rescue authority would have to provide evidence that a business had not properly maintained a piece of equipment. Going down this route could only open up a significant potential for challenge that would benefit neither businesses nor the fire and rescue sector. The Bill already allows for authorities to charge under a wide range of scenarios that can lead to malfunctions and the amendment would not add anything to that.
On that basis, I am not persuaded the amendment helps. It would not achieve its intended purpose in significantly widening the number of scenarios under which an authority could charge. Instead, it could unhelpfully complicate the Bill’s provisions as drafted and leave those extra provisions open to legal challenge. I hope with that explanation the noble Baroness will be willing to withdraw her amendment.
Baroness Eaton
I am grateful for the Minister’s response. The last thing I intended with my amendment was to complicate matters and to create an opportunity for more challenges. I am pleased to withdraw the amendment.
Baroness Hanham
“(1A) In discharging its duty under subsection (1), a relevant authority must, in particular, adopt a code dealing with the conduct that is expected of members and co-opted members of the authority when they are acting in that capacity.
(1B) A relevant authority that is a parish council—
(a) may comply with subsection (1A) by adopting the code adopted under that subsection by its principal authority, where relevant on the basis that references in that code to its principal authority’s register are to its register, and(b) may for that purpose assume that its principal authority has complied with section 28(1) and (1A).”
Baroness Hanham
My Lords, I should also like to speak to Amendments 5 to 9, 11 to 13, 68, 74 and 75. We had an extensive discussion on Report on the provisions dealing with local authority standards. It was obvious from the strength of feeling exhibited that noble Lords considered this matter to be important and worthy of careful consideration.
There was much common ground in that debate. Everyone in this Chamber agreed about the importance of maintaining the highest standards of conduct in local authorities. There was also broad agreement that the Standards Board regime has become a vehicle for vexatious, petty and politically motivated complaints, with more than half the allegations of misconduct being rejected when assessed.
At the same time, concerns were voiced that the provisions that we had set out to deal with local authority standards after the abolition of Standards Board regime were too localist and not up to the task of ensuring the high standards of conduct that we expect of local authority members. We undertook on Report to take those concerns away and see whether we could strengthen the provisions to address the concerns. Over the past few weeks, we have reflected carefully on that debate and had extensive and useful discussions with noble Lords on their concerns.
As a result of that, I am bringing back a package of amendments to modify the standards provisions in the Bill. All authorities will be required to have a code of conduct. Amendment 4 would put that in place, and local authorities must, as part of their duty to promote and maintain high standards of conduct, have a code of conduct. This requirement applies to parish councils as well as to principal authorities. That code of conduct must be in accordance with the Nolan principles of public life. Amendment 5 states that a code of conduct adopted by a local authority should be consistent with the seven Nolan principles: selflessness, integrity, objectivity, accountability, openness, honesty and leadership.
The code of conduct will, in addition, have to include the requirement for members to register and disclose interests. Amendment 5 provides that the code of conduct must include the requirement for members to register and disclose their pecuniary and non-pecuniary interests. Noble Lords will recall that under Clause 34 a member will be committing a crime if, without reasonable excuse, they fail to declare or register a pecuniary interest or if they knowingly or recklessly provide false or misleading information about that pecuniary interest.
Lord Beecham
My Lords, I declare an interest as a member of a council—hence my straying into jargon that we apply in council debates—a member of the standards committee, which meets later this week, and vice president of the Local Government Association. I join other of your Lordships in extending warm congratulations to the Minister who is clearly responsible for, and indeed embodies, an outbreak of sweet reasonableness over this issue that we hope to be pursued by some of her ministerial colleagues when we come to other legislation after this evening’s proceedings.
Like other noble Lords, I believe that there are issues that one might have wished to have taken a little further. A mandatory code would have perhaps been preferable. As the noble Lord, Lord Tope, indicated, in all probability we will end up with something like that. I hope that the Local Government Association, with others, will draft something that will be useful and will be adopted by many local authorities. It is very important that this independent role should be reflected. I agree with the noble Lord, Lord Shipley, that mandatory committees, perhaps with that independent element, would have been preferable. Nevertheless, we have gone a long way forward since the original Bill and our earlier discussions on Second Reading, in Committee and on Report. For that we are clearly indebted to the Minister.
I am not quite so sure about the sanctions that are available and whether they are sufficient to meet some of the more serious cases. A huge range of cases has applied at national and local level. I note that people from all political groups have transgressed, sometimes quite significantly. A prominent Conservative ex-leader of a council was found to have leaked a confidential document related to a land sale and was suspended for 28 days by his council. A Labour deputy group leader was also found to have breached confidentiality in relation to a compulsory purchase order. These are not insignificant issues, and they are not personal issues either. He was suspended for three months by his local authority. A Lib Dem councillor was suspended for six months for bullying and disrespectful behaviour at a training session. One of the worst cases was an independent borough councillor who had undermined and humiliated the council’s press officer systematically in front of other councillors until she began to cry and had to leave the room. That is intolerable behaviour in any circumstances and is certainly not consonant with holding a public office. A suspension for three months took place in that case.
However, I wonder whether suspension from a committee or even removal from outside bodies is necessarily sufficient for the more serious types of case. We clearly cannot pursue this further tonight, but it may be that over time, and bearing in mind that we need to see how this works in practice, we might have to revisit that element. Another place has quite draconian powers of discipline. I am not quite sure that they are quite as draconian in this place, although there are matters currently under consideration of a very grave nature and one hopes that one would not see anything like that again in your Lordships' House. It may be therefore—given that the national framework has been dismantled and that there may still, unfortunately, be a few cases where really serious misconduct occurs—that one must wonder whether the sanctions currently available and reflected in the amendment tabled by the noble Lord, Lord Bichard, are adequate. We have clearly moved on and I am grateful and pleased that we have achieved this. I congratulate the Minister and the noble Lord, Lord Bichard, and thank them for the work they have done on this matter.
Baroness Hanham
My Lords, I thank everybody for the very kind compliments. It is unusual to hear them, so I am basking a little bit. I am also grateful to the noble Lord, Lord Bichard, who fought very hard with the noble Lord, Lord Filkin, to make sure that we took this matter on board. He has been very persistent and was gracious in saying that he will not move his amendment.
We think that these procedures will have a real impact on the conduct of local councillors. While not spelling out how councils should put a scheme in place, it is clear that they have to. They must have some means of dealing with complaints. It seems almost inescapable that if you are going to do that, you are probably going to have to have some sort of committee structure to deal with them. That would be fine if local authorities decide for themselves, but to be fair and independent, they will need to have a balance.
I do not think that anybody has misunderstood. However, I want to make it clear that whatever the system and whether local authorities have independent members in that committee structure, they will still be required to have a further independent member who will act outside the committee system and will have to be referred to.
The noble Lord, Lord Tope, asked about the monitoring of the process. From the Government’s point of view, there will not be any further monitoring. It is possible that the Local Government Association will want to know what is going on, but unless things are very different from what we anticipate, it will be up to local authorities themselves to see their systems through and to make sure that this structure works.
I have been asked questions about representation on outside bodies. I think the answer must be that where the council is appointing somebody to another body, if there is a complaint about the councillor, the council is still responsible for them so it would be able to take action against them.
The other aspect that must be clear is that this has to be a transparent process. Each step must be open to comment and it must be dealt with openly. If there is a complaint that results in a warning or a letter, that must be clear so that local people who have elected these councillors know exactly what has happened or can find out. Some of the sanction will therefore be imposed by the electorate. They will know that somebody has transgressed or offended before they chose to re-elect him. The day-to-day monitoring will be carried out under the transparency of the decision-making process. The noble Lord, Lord Shipley, mentioned the decision on allegations. I hope that I have covered that. If not, I will talk to him subsequently.
I think this system will work. It leaves a big localist element, but it has structure and elements that were not there before. I am grateful to all noble Lords who contributed to this debate.
Baroness Hanham
“(1) A relevant authority must secure that a code adopted by it under section 27(1A) (a “code of conduct”) is, when viewed as a whole, consistent with the following principles—
(a) selflessness;(b) integrity;(c) objectivity;(d) accountability;(e) openness;(f) honesty;(g) leadership.(1A) A relevant authority must secure that its code of conduct includes the provision the authority considers appropriate in respect of the registration in its register, and disclosure, of—
(a) pecuniary interests, and(b) interests other than pecuniary interests.(1B) Sections 29 to 34 do not limit what may be included in a relevant authority’s code of conduct, but nothing in a relevant authority’s code of conduct prejudices the operation of those sections.
(1C) A failure to comply with a relevant authority’s code of conduct is not be dealt with otherwise than in accordance with arrangements made under subsection (3); in particular, a decision is not invalidated just because something that occurred in the process of making the decision involved a failure to comply with the code.”
Baroness Hanham
Lord True
My Lords, I am sorry to say that I have a lot of sympathy with the spirit behind this amendment, but having wearied the House with my views on neighbourhood forums and not having been able to persuade my Front Bench fully about this question, I think that noble Lords opposite will know that my view is that we should start from the assumption that the neighbourhood forum includes everybody in the neighbourhood area. In those circumstances, if the neighbourhood forum is very large, I do not think that the kind of amendment that the noble Lord, Lord Beecham, has proposed would be practicable. I do not think that we could ask everybody who lives in a village or in a neighbourhood area to publish their interests simply because they wanted to participate in a neighbourhood forum.
If, however, it emerges—and I think we have to wait and see the guidance on the Bill—that my maximalist view of what a neighbourhood forum should be does not prove to be the case, and if the neighbourhood forums turn out to be rather small bodies of perhaps only 21 individuals wielding a great deal of influence in the name of the community, then I would find the arguments of the noble Lord, Lord Beecham, quite persuasive. As we gain experience going forward of what these bodies are actually going to be—whether they are small or big—this will affect the judgment that I would make about this question. I would suggest, however, that this is something that we might leave until we see further guidance on the Bill. I am sure it would be a matter that might be addressed then. If 21 people are going to be very influential in an area, I would like to know where they were coming from, and I am sure local people would, too.
Baroness Hanham
My Lords, Amendment 14 would require local authorities to maintain a register of the interests of members of designated neighbourhood forums. From the outset, I remind Members and my noble friend behind me that 21 is a minimum. You can have as many as you like on a forum—if he wants the whole bloomin’ neighbourhood, he can have the whole lot on it. There is nothing to stop that happening. I would take his view that if you are going to have most of the members of a ward or an area, which might amount to 1,500 or so, this proposal would probably be otiose.
A neighbourhood forum is designated by a local authority for the express purpose of preparing a neighbourhood plan or order for a designated neighbourhood area. The neighbourhood forum will not make decisions on planning applications or on whether a neighbourhood plan or order should come into force, nor will it take on wider duties and responsibilities. Neither is the neighbourhood forum intended to form an equivalent governance function to that of a parish council. The neighbourhood forum is simply a group designated by the local authority to prepare a neighbourhood plan or order.
We have worked hard to ensure that the Bill reflects this position by imposing minimum requirements that community groups must meet in order that they can be designated as a neighbourhood forum. This will enable existing groups to take a leading role in neighbourhood planning. To avoid forums acting inappropriately, the Bill gives local authorities the power to remove the designations of neighbourhood forums in certain circumstances. In addition, requiring their members to register and declare interests would be unnecessary. Since the forum is similar to a planning applicant submitting a planning application to the local authority, it is not making a decision in the public interest.
Furthermore, in practical terms, maintaining a register of the interests of neighbourhood forum members would be extremely difficult for the authority to achieve, given the wide range of individuals who could be members of a neighbourhood forum and the likelihood of frequent change in the forum’s overall membership throughout the process of preparing the plan or order. The Bill requires all neighbourhood forums to include, as I said, at least 21 members who live or work in or are elected members of the neighbourhood area and to have an open approach to their membership.
In addition, of course, there was the requirement that we put into the Bill—I think at Report stage—that there should be consultation before any plan is put to the local authority. I hope that Members will accept this view and not push this amendment today.
Lord Beecham
My Lords, I am grateful for the conditional support of the noble Lord, Lord True, which I occasionally receive. I quite take his point, and I also listened carefully to the Minister. I think that the noble Lord, Lord True, is right, and this may be an issue to be revisited at a later stage. I am not entirely sure that we will in fact have large neighbourhood forums. I think the surveys that have taken place so far indicate that there is not—at the moment, at any rate—a huge appetite for the formation of these things. Therefore, we may be in the position where they tend to be rather small and in that case we will perhaps need to look again. In the circumstances, however, I beg leave to withdraw the amendment.
Lord Beecham
My Lords, I shall not detain the House for long. This is in my view a model amendment. It does not require local authorities to take action but creates a power for them to do so, which is absolutely right in the circumstances. It is for them to make a judgment about whether in particular circumstances it is likely that they can secure convictions in an urban area—to respond to my noble friend Lord Berkeley. It would be easier to do so than in a rural area, obviously, because there would be witnesses and people who would take note. Frankly, I suspect that the situation is worse in urban areas even than in the rural areas about which we have heard.
The noble Lord is to be congratulated on his amendment. This is not a party issue. However, if the noble Lord were minded to divide the House I would certainly go through the Lobby with him.
Baroness Hanham
My Lords, I thank the noble Lord, Lord Marlesford, for moving this amendment. We have had some discussion about it and have had two serious debates in this House. I am afraid that there are serious problems with the amendment. One of them was mentioned by the noble Lord, Lord Berkeley. The fact is that it is extremely difficult when most enforcement law is not carried out anyway and you are just adding to it. As the noble Lord, Lord Marlesford, himself said, there are already powers regarding littering offences under Section 87 of the Environmental Protection Act. What happens is that they are not enforced; there are not enough enforcement officers, or they are not around at the right time to ensure that littering does not take place. There are already penalty charge notices that can be given by enforcement officers, particularly in the towns, but all over the country, to enable enforcement on litter dropping. So I do not believe that the amendment is necessary.
What we need is proper education and proper campaigns. As the noble Lord, Lord Deben, said, his authority is not sitting around waiting for a by-law—it has got itself up and going and is running a campaign with a quite attractive title. I have to say that it strikes one as something that might have had the noble Lord behind it. So we do not really need this.
There is a further difficulty. Local authorities can make by-laws only for themselves. If one authority has a by-law and another does not, where is the fridge going to be dropped? It will be dropped within the one that does not have a by-law. Furthermore, local authorities cannot deal with motorways or main roads outside their control. Those are in the power of the Highways Agency, which has not been included in the amendment.
I know that the noble Lord, Lord Marlesford, is going to be very upset with me, because we have had a discussion that will make him upset with me, but I want to go back to the position that we do have the London Local Authorities Bill, which has powers in it. I appreciate that it is largely urban, but London local authorities stretch out beyond the urban to the suburbs and even, may I say it, border on greenbelt and places that could be tempted to be rural. What we want to do is to see what happens as a result of that Bill. The Bill is a private Bill, as everyone knows, and is before Parliament now. It has completed its Lords stages and is at an advanced stage in the House of Commons. The expectation is that if there are no more challenges to it, it will proceed on its way. When that is implemented, we will be able to see what can be done. The Bill will allow a local authority to issue a civil penalty to registered keepers whereas the amendment of the noble Lord would make it a criminal offence. This would make it a civil offence with a penalty charge notice of £100, and that would be to the registered keeper.
There has been some discussion about whether the registered keeper is the person who ought to be responsible for this. Under the amendment of the noble Lord, the registered keeper would have to be asked who was in the car—very similar to a charge within a court of an offence asking for a statutory declaration. If we can move it into the civil area, I think that would be a worthwhile approach. The Bill will also enable local boroughs to issue civil penalties. We hope that is going to receive Royal Assent later this year. We want to see whether that can be a good route out.
In the mean time, I am going to use those terrible words about getting people to understand what they are doing. The Government are already supporting Keep Britain Tidy in developing the Love Where You Live campaign—that is nearly as good as the tosser. We are also supporting other campaigns in order to make people realise what they are doing. I do not underestimate in any way the problem of litter. I appreciate that it is an absolute eyesore. I think fridges may be outside the scope of litter, but I appreciate that is also part of a wider problem.
I cannot accept the amendment. I know the noble Lord will be upset with me about that, but there are still too many problems associated with it to make it one that we can put into legislation at this stage. I hope the noble Lord will feel able to withdraw it after my explanation.
Lord Marlesford
My Lords, I am most grateful to my noble friend for her comments. I am most grateful for the support that I got from all sides of the House. I would like to answer the noble Lord, Lord Berkeley, straight away. First, I am not creating a new offence as such. All I am trying to do is to make the 1990 Act, which has failed for the reasons we have discussed, work better. How many prosecutions there have been or how many there will be is completely unknowable. I suppose we could know how many there have been, but the point is that at the moment the thing cannot be enforced. In my book, unenforceable law is bad law. You should not have laws which put obligations and requirements which cannot be, and therefore are not, enforced. That is the way to bring the law into contempt.
Lord Howarth of Newport
My Lords, the noble Lord, Lord Best, and the LGA are surely right that sustainable development must be interpreted locally and in the end you can only determine what it means in relation to local circumstances. However, I agree with both noble Lords who have spoken in the debate that it is important that the Government should fill out their definition, or at least their understanding of what is intended by sustainable development. The Brundtland definition is so high level that it leaves too much scope for varying interpretation. In the absence of specificity and rather fuller detail in the way in which the Government have set forth this policy, there is space for all sorts of anxieties to grow. Those anxieties have been intensified by what the Chancellor of the Exchequer said in his Budget speech when he referred to the planning system as being a “chronic obstacle to growth”. That is a profoundly misplaced analysis. Whether or not the planning system has played some part in obstructing growth over the years, what matters now is that a lot of people in this country are anxious about the Government’s intention. While they may possibly acquit CLG of desiring to concrete over the countryside and so forth, they have anxieties about the Treasury’s reading of the situation and intentions. I think that they feel the Treasury would be too ready to see the protections that the planning system has historically given to our countryside to prevent inappropriate development being swept aside. The more desperate we become to achieve economic growth the more reckless they fear the Government may be over those protections.
The Government would do themselves a good turn and would allay a great deal of anxiety that I am sure in reality is needless if they would undertake to clarify and amplify their intentions in committing themselves to promoting sustainable development. Like other noble Lords I do not think that it is appropriate to attempt a full definition on the face of primary legislation because, as we have noted, the understanding of sustainable development has itself developed over the years and will surely continue to do so. It seems that the right place for that is guidance, whether in an expanded section of the NPPF or perhaps in greater detail in fuller supplementary guidance that I continue to hope the Government will issue to support the NPPF because, admirable as I believe most of its tendencies to be, it is too high level and leaves too much scope for ambiguity and doubt.
There is not only anxiety but the danger of legal conflict and uncertainty among all concerned. I think that it would be very helpful if the noble Baroness were able to say that the Government have made up their mind firmly that they will provide a fuller explanation and definition of what they intend by sustainable development.
Baroness Hanham
My Lords, in the previous debate I promised to go away and think about what should be done and whether sustainable development should find itself in legislation or in the national planning policy framework. It has been clear throughout the passage of the Bill that this matter has demanded careful consideration. It has been raised over and over again. We discussed this very thoroughly on Report, and I think we established that there was a good degree of agreement between us about the outcome that we are trying to achieve. I said then that there should be no doubt about the Government’s commitment to securing sustainable development through planning and to meeting environmental, social and economic needs in a balanced way. Those are the three legs of the stool that reference the planning side. It has been apparent from the debates we have had on the Bill and in the House that we need to be clear and to go further in setting out how our commitment can be achieved.
Having agreed to go away and come back with our view on whether the Bill could be amended to effect this aim or whether it could be part of the consultation on the draft national planning policy framework, it is appropriate to say more on that. I appreciate that the amendment put forward by the noble Lord, Lord Greaves, and his colleagues is designed helpfully to probe our intentions on this, and I accept that the noble Lord, Lord McKenzie, was trying to do the same thing. I hope I can provide reassurance.
We now have the benefit of the consultation responses and the draft NPPF. As noble Lords have said, there are 14,000 replies, and many of them are going to address this specific issue. We also have the evidence given to the environmental audit committee, so there is quite a lot of external thought coming on this. Of the responses that we have been able to look at so far, many have made a cogent case for defining sustainable development in more detail in the NPPF. Noble Lords have also voiced strong views about what should be included. Clearly, we need to tailor our definition in the light of all the views we have received. This is something that we intend to do as we revise the document. The explanation will not be a legal requirement in the Bill but will address the policy issues in the policy framework.
We cannot finalise our policy on the NPPF until we have considered all 14,000-plus responses, so I am not going to try to pre-empt that, but important themes are emerging that we want to take into account as we refine our approach. In particular, we know that we need to address the way in which the definition works alongside the presumption in favour of sustainable development, so it is clear that what we want to see through the presumption is that development is sustainable. The planning system should help to secure net benefits for present and future generations, including promoting strong, vibrant and healthy communities together with protecting and enhancing our natural, built and historic environment—we have always had a commitment to that, but I think some of it got skewed during the early part of the consultation process, almost before it had started—in situations in which there could be limits to the environment’s ability to accept further development without irreversible damage. We will carefully consider what noble Lords and noble friends have said about building on and explicitly referencing the principles that underpinned the 2005 UK sustainable development strategy, which is the relevant strategy. We are crystal clear—as the noble Lord, Lord Greaves, pointed out, my honourable friend Greg Clark, who has been managing this Bill, is clear—that sustainable development has the three legs that we have spoken about: environmental, economic and social dimensions. The purpose of the planning system as a whole is to achieve a balanced outcome—I hope that this to some extent addresses the question asked by the noble Lord, Lord Howarth—that actually reflects all three of these points.
Lord McKenzie of Luton
When the draft NPPF was issued for consultation, did the Government seek to change what had hitherto been the balance between the various components of sustainable development at that stage? Was it the Government’s intent to place greater emphasis on economic growth at the expense of the others? I do not assert that that is where the Government may end up, but obviously there was great concern from the wording of the document that that was the intention at that stage. Can the noble Baroness dispel that concern, or is it a real issue?
Baroness Hanham
My Lords, the initial expectation in the NPPF was that there would be a balanced approach to this. There are the three legs that are really relevant to planning: economic, social and environmental. Brundtland, of course, includes science, and we have been given lots of other ideas of what it might include. If I can just leave it at that, we expect this to be a balanced approach to sustainable development and we recognise that there are elements that are more reflective of the planning system. Then we will have to wait and see what comes out of the discussions.
Lord Greaves
My Lords, I am extremely grateful for that reply from my noble friend the Minister, who I think went as far as she could—in fact, I think she pushed the limits a little further than some of her more cautious advisers might have liked. I hope that what she said turns out to be satisfactory in the long run.
I just want to say another couple of quick things about sustainable development. Going back to what Greg Clark said in the House of Commons debate on the NPPF, which I think is extremely important, this is not just about balance. Balance is very important indeed, but really good planning can enhance all the three legs, or pillars, or whatever they may be called, of sustainable development. That is possible with good planning. Clearly individual decisions may be balanced one way or another, but overall there has to be balance and enhancement, particularly of the environment. Again, I hope that the issue of environmental limits that you cannot go beyond will be addressed in the NPPF.
Listening to this debate, I was musing that we have not only had the four debates on sustainable development in this Bill and the two NPPF debates; the debate seems to have gone on over the years. I was thinking back to the Planning and Compulsory Purchase Act 2004, the Planning Act 2008, the Marine and Coastal Access Act 2009 and the Flood and Water Management Act 2010, when there was a willingness of the then Labour Ministers to think about what they could do about putting this into the Bill. In the end, however, they said, “No, it cannot be done, for all the reasons that have been put forward”, and all the legal reasons put forward by their advisers. Having struggled against a Labour Government on four of these Bills and trying to find our way through this one under the coalition Government, we are where we are.
Will the outcomes be satisfactory? Will we look back on these debates and say, “Yes, the NPPF is okay, despite the inauspicious way in which it was launched upon the world and despite a lot of the unfortunate wording within it”? Will that all be sorted? Will we get a document that will work? All I can say is that I hope we will. We have a lot of good intentions from the Government and from Ministers, not least my noble friend the Minister here. We on the Liberal Democrat Benches will certainly be keeping up the pressure, and we simply ask them not to let us down. On that basis, I withdraw the amendment.
Lord Howarth of Newport
My Lords, it is a great strength of the Government’s policy that it commits us to plan-led and sustainable development. It follows from that that it would be extremely unfortunate if there were to be possibly a long interval—a black hole—in which possibly half of planning authorities, maybe even all, did not have a valid plan. During that period there would be real danger of abuse and bad, inappropriate development gaining permission, and perhaps even being built, which would contradict the Government’s proper objectives. Unless the Minister is able this evening to give clear-cut reassurance that there will be firm and legally binding transitional arrangements, I fear there could be consequences that the Government do not want. I also fear that there will be needless public anxiety—or, possibly, even justified public anxiety—and it would be sensible and helpful if the Minister could finally allay our anxieties on this point.
Baroness Hanham
My Lords, I am not going to be able to reassure everyone on everything. When we discussed this in the past, I pointed out the Government’s concern that there had been transitional arrangements on previous occasions which had resulted in only 40 councils having local plans, with some of the remainder being on tap and others having some being prepared. Transitional arrangements are a bit of a worry. In response to a question today, I said to the noble Lord, Lord McKenzie, that this is very much in our minds and I can confirm that that is the situation. We are looking very carefully at transitional arrangements, particularly in respect of the analysis of the NPPF and what that will throw up. We have listened also to the views of the Local Government Association and others and will be taking them into account.
We place an enormous amount of importance on up-to-date local plans and we will put in place transitional arrangements that advantage plan making to reflect the fact that the national planning policy framework is all about putting local communities in control of planning decisions through their local plan. As I have said previously, the framework is policy not legislation and legislative measures are unnecessary as the Secretary of State can deliver transitional arrangements more appropriately through policy or guidance. That clearly will be part of the discussions and talks we are having about how much of that is required.
It would also be helpful if I made it absolutely clear that the status of local plans will not change when the Bill is enacted and the final national planning policy framework comes into force. Local plans will continue to be part of the development plan and the plan will remain the first point of reference for decisions on planning applications and appeals. It is, of course, for local councils to decide when they should update their local plans—it is entirely a matter for them and their communities—but it is important that we help them through the process. We are supporting councils by simplifying the process of preparing plans. This will help provide flexibility so that councils can concentrate on issues that matter to them and their communities.
On the question about the Planning Inspectorate, we are working closely with it to make sure that the examination process can be quicker and that, if necessary, only parts of a local plan need to be reconsidered. It is a flexible arrangement and we are sure that the Planning Inspectorate will be able to help with that appropriately.
As we have discussed before, if there are policies and regional strategies that councils wish to incorporate in local plans they can do so by undertaking a review focusing on those policies. Councils can also continue to draw on evidence that informed the preparation of regional strategies to support local plan policies, supplemented, as needed, by up-to-date local evidence. The availability of an existing body of evidence will also help councils through the local plan review process and, consequently, transition.
The NPPF offers councils the opportunity to seek a “certificate of conformity” with national policy which will help them identify which of their existing local policies are consistent with the framework. We expect that many elements of local plans will conform with the direction of national policy. Where issues are indentified, councils should attempt to address these through reviews undertaken as quickly as possible. We will, of course, be considering any representations made on this point in the current consultation.
Lord Greaves
My Lords, I think there is an important point here. Will the certificate of conformity be available to planning authorities that have an approved local plan that is waiting for inspection before it is inspected, or will it be only for local plans that have already been adopted?
Baroness Hanham
My Lords, I thought the noble Lord had had his last word on this Bill, so I am a little bit taken aback. I will get an answer to that question as we go along. The answer is no—only adopted plans will have the certificate of conformity.
I hope that I have made it clear that the transitional arrangements are still under consideration but that there will be transitional arrangements. I have been asked whether there will be guidance from the Secretary of State. It will set out as clearly as possible what the transitional arrangements are and any other procedural issues.
Let me conclude by reiterating—this is not my last word, unfortunately—the importance that this Government place on local plans and the need for effective arrangements, delivered through policy or guidance, to manage transition. I want to offer a firm reassurance that the Government recognise the importance of this, as I said earlier today, and will ensure that this is addressed alongside the revisions that are made to the NPPF itself. We are of course looking very closely at all the suggestions that have been made about transition during the consultation process.
We recognise there are genuine issues to be addressed about the status of local plans during the transitional period. I hope that I have addressed some of these tonight, but we will also be considering them further. With these reassurances I hope that the noble Lord will withdraw the amendment.
Lord McKenzie of Luton
My Lords, I thank the Minister for as clear an indication as she is able to give about transition. I take some comfort from that. Whether it ends up in the NPPF or in guidance is not the most important issue as long as it is there and it is effective.
I thank other noble Lords who have supported and argued in favour of transition, including my noble friend Lord Howarth and the noble Lords, Lord Best and Lord Greaves. I thank the noble Lord, Lord Greaves, for his kind words—this must not get too much like a love-in—which we ought to reciprocate. This has been an interesting experience for those of us who are new to planning legislation. It has been an intriguing position. I used to think that Luton was the centre of the universe, but I understand Pendle now may begin to be a bit of a rival—perhaps we will pay a visit one day to see.
I am happy to withdraw the amendment because I believe the noble Baroness has given us the strongest degree of reassurance I have heard to date on this issue.
Baroness Hanham
“(1) In section 20B(2) of the Housing Act 1988 (demoted assured shorthold tenancy lasts for one year unless subsection (3) applies) after “subsection (3) applies” insert “, but see section 20BA”.
(2) ”
Baroness Hanham
My Lords, Amendments 54, 55 and 56 are technical amendments that ensure, in line with our original policy intention, that where a fixed-term assured shorthold tenancy is demoted, the tenant can be given another fixed-term tenancy upon successful completion of the demotion period.
Without these amendments, such tenants would automatically become periodic assured “lifetime” tenants on successful completion of the demotion period. That would clearly be unfair—in effect, a reward for behaving anti-socially in the past—and mean that private registered providers would in practice be unlikely to demote fixed-term tenancies, rather than simply seeking to evict for anti-social behaviour. These amendments ensure that private registered providers of social housing who demote fixed term assured tenants are in the same position as local authorities who demote flexible tenants. I beg to move.
Lord Kennedy of Southwark
My Lords, I accept that these government amendments are to correct a drafting error. I am pleased that someone spotted it before the Bill left your Lordships’ House. Well done to whoever did that. It would be regrettable if we had had to waste valuable parliamentary time correcting this error at a later stage if it had passed into law. The substantive amendment clarifies that a fixed-term tenant should get another fixed-term tenancy on successful completion of the demotion period. From these Benches we have no objection whatever to that. Time is getting on and I will leave it there.
Baroness Hanham
““20BA Assured shorthold tenancies following demoted tenancies
(1) Subsection (2) applies if—
(a) section 20B applies to an assured shorthold tenancy of a dwelling-house in England (“the demoted tenancy”),(b) the landlord is a private registered provider of social housing,(c) the demoted tenancy was created by an order under section 6A made after the coming into force of section 162(2) of the Localism Act 2011,(d) the assured tenancy that was terminated by that order was an assured shorthold tenancy that, whether or not it was a fixed term tenancy when terminated by the order, was granted for a term certain of not less than two years,(e) apart from subsection (2), the demoted tenancy would cease to be an assured shorthold tenancy by virtue of section 20B(2) or (4), and(f) the landlord has served a notice within subsection (3) on the tenant before the demoted tenancy ceases to be an assured shorthold tenancy by virtue of section 20B(2) or (4).(2) The demoted tenancy does not cease to be an assured shorthold tenancy by virtue of section 20B(2) or (4), and at the time when it would otherwise cease to be an assured shorthold tenancy by virtue of section 20B(2) to (4)—
(a) it becomes an assured shorthold tenancy which is a fixed term tenancy for a term certain, and(b) section 20B ceases to apply to it.(3) The notice must—
(a) state that, on ceasing to be a demoted assured shorthold tenancy, the tenancy will become an assured shorthold tenancy which is a fixed term tenancy for a term certain of the length specified in the notice,(b) specify a period of at least two years as the length of the term of the tenancy, and(c) set out the other express terms of the tenancy.(4) Where an assured shorthold tenancy becomes a fixed term tenancy by virtue of subsection (2)—
(a) the length of its term is that specified in the notice under subsection (3), and(b) its other express terms are those set out in the notice.”(3) Before section 21 of the Housing Act 1988 insert—”
Baroness Hanham
Baroness Hanham
My Lords, our reforms to the complaints system for social housing are designed to promote the resolution of complaints as far as possible at the most local level, and to encourage a system where ideally the ombudsman is brought in only where local resolution does not prove possible. At Report, amendments were tabled by several noble Lords that would have modified our proposals by introducing a so-called dual-track approach to the process for making complaints to the Housing Ombudsman. As I made clear to the House, the Government’s view is that this would fail to deliver a sufficiently localist approach.
The noble Lords, Lord Greaves and Lord Tope, proposed that a compromise should be considered. They recognised the value of local complaint resolution but were concerned that having gone through the local route tenants must ultimately be able to secure redress where they receive a poor service.
In the light of these most helpful observations, I agreed to take this issue away to see what more could be done to ensure that our provisions were sufficiently flexible.
With Amendment 58, the Government are now proposing a way forward that retains the localist approach but, in specified circumstances, allows the tenant direct access to the ombudsman. We hope that this gives assurance to noble Lords that we have acted upon their concerns through allowing a degree of flexibility into our proposals that will be of further benefit to the tenant.
Under these proposals, tenants will retain the option to go directly to the Housing Ombudsman if eight weeks have elapsed since the end of the landlord’s internal complaints process, or if a local representative explicitly declines to refer the complaint to the ombudsman or agrees that the tenant may approach the ombudsman directly.
The eight-week exception would assist tenants in cases where, for example, the local representative simply did not respond to their complaint. We propose that the time period for this condition would begin at the end of the landlord’s complaints procedure, not when the tenant first approached a local representative. This is so that a clear audit trail exists should the case eventually go to the ombudsman. Starting the clock at this point will make the system straightforward and minimise burdens on tenants.
The second exception is designed to address the concern that a local representative could simply prevent a tenant securing redress by refusing to refer the complaint to the ombudsman, despite the fact that the tenant had attempted to resolve the complaint locally. In most cases, we would expect a local representative to deal with the case or to refer it to the ombudsman, but we recognise that there may be occasions, such as where there is a conflict of interest, where it would be preferable for tenants to have direct access to the ombudsman. For this reason, we wish to provide that a designated person may agree that a complainant can take their complaint to the ombudsman directly.
Amendment 60 tabled by the noble Baroness, Lady Hayter, would alter the first of our proposed exceptions by providing that tenants may access the ombudsman directly after six weeks have elapsed. I shall let her speak to her amendment before responding to it. In the mean time, I beg to move Amendment 57.
Baroness Hayter of Kentish Town
My Lords, I wish to speak to Amendment 60 and, in doing so, I welcome enormously the amendments tabled by the Minister on behalf of the Government. I warmly welcome what she has put forward concerning the preference for having things dealt with, if at all possible, locally and as soon as possible. If it does not do his future career a lot of harm, perhaps I may associate the noble Lord, Lord Newton of Braintree, with the thanks to the Government for moving on this. He cannot be in his place tonight but I am afraid that the two of us are at one in thanking the Government, which I think puts us both in very bad odour.
What the Government have done has been welcomed very widely. I know that the British and Irish Ombudsman Association has supported this final retention of a citizen’s right to direct access. Similarly, the National Housing Federation supports the line which enables MPs and councillors to be involved as the first route at the discretion of the complainant but allows the fallback position. Likewise, the Law Commission prefers a system where the complaints can go either through a local representative or to an ombudsman. I hope that the Government know that tenants are similarly very happy with the new amendments, under which they can either deal directly with their councillor or go to the ombudsman. The organisation Which? similarly prefers the choice of the local route but, if not, then the fallback position if for whatever reason the complainant does not want to involve their MP or councillor. As the Minister said, the reasons for that could well be a conflict of interest: the councillor may be the provider; the MP may already have heard the case in their surgery; or the MP may know the local council official involved. The only other reason that has been mentioned is that there could be a threat to the tenant’s privacy where there are issues that they would perhaps not want to share with an elected official. The only other point when somebody may want to go to the ombudsman, albeit after the delay, would be when an elected representative perhaps would be rarely accustomed to awarding redress and would not have the authority to enforce any award.
The way in which this has been tabled by the Government is to be greatly welcomed. It clarifies the current position of the Housing Ombudsman because the scheme requires complainants to have completed any internal complaints procedure with their own provider before going to the ombudsman. Only in very exceptional circumstances, such as oppression or something like unreasonable delay, would the Housing Ombudsman take a case before it had been through the provider’s in-house procedure. That is also helpful in the wording of the Government’s amendments. All the other organisations similarly take that line.
I am delighted that the wording allows local access or the fall back after eight weeks. It is only that that brings up my very small amendment. I have no difficulties with the idea of some delay after the internal procedure is over for the complainant to take stock and consider whether a complaint to the Housing Ombudsman is still justified, having heard the reasons for being turned down by the in-house procedure. Two months seems a little long, especially as the internal procedure that they would have already gone through could also have been a bit lengthy. My amendment would simply shave a fortnight off those eight weeks. The Government have moved a long way on this amendment and I hope they will go a little bit further. An extra 14 days would make this a particularly good final answer to the original amendment.
Baroness Hanham
My Lords, we thought carefully about the time limit and believe that eight weeks strikes the right balance. It allows sufficient time for a complaint to reach the local representative and for the local representative to make representations to the landlord and achieve a successful resolution to the complaint without imposing an unnecessary or onerous delay on the tenant. It might help the House if I unpick this a little further.
First, as the clock starts at the end of the landlord’s process in our proposal, we would expect the tenant to require a little time to forward the complaint to the local representative, and we make allowance for this. Secondly, it is important to recognise that in most cases the local representative will want to review the case materials before going further and will possibly want to discuss them with the tenant. It is key to our aim of getting local representatives more involved in housing complaints that they are given the space and opportunity to do that. If, on the other hand, the local representative concludes that the complaint cannot be resolved locally, they do not need to wait for the eight weeks to elapse. They can at any stage refer the complaint to the ombudsman or agree to the tenant accessing the ombudsman directly. We believe that we should trust local representatives on the ground to make this judgment and to provide effective support and advocacy on behalf of tenants.
I was asked how the ombudsman would know that the tests had been satisfied before the matter was referred to him. I understand that this is a matter for the ombudsman, who plans to consult over the next year on a revised statutory scheme that will set out these matters. I hope that that will enable the noble Baroness not to move her amendment.
Baroness Hanham
“(1A) Sub-paragraph (1) is subject to paragraph 7AA (complaints that need not be made by way of referral).”
Baroness Hanham
Baroness Hanham
Baroness Hanham
Baroness Hanham
Baroness Hanham
Baroness Hanham
“(10A) In paragraph 11A for “7 to” substitute “8 and”.”
Baroness Hanham
Baroness Hanham
Lord McKenzie of Luton
My Lords, this is the last time I shall speak on the Bill. Perhaps I may start by expressing support for the noble Lord, Lord Best, and his inquiries. I hope that he will receive the confirmations that he sought, certainly on the basis of the helpful background note that we received from the Government today, which confirms that proceeding via development plan documents and local development orders would obviate the need for referendums.
I should like to offer my thanks to several people. Certainly, I thank the Bill Minister, the noble Baroness, Lady Hanham, and her team, the noble Earl, Lord Attlee, the noble Lord, Lord Shutt, and the noble Lord, Lord Taylor of Holbeach, who has gone on to other things. I know what hard work it can be working on a Bill and what a tremendous amount of effort has been put in. It has been a listening team, which has boded well for the outcome of the Bill. I thank also the noble Lord, Lord Tope, the manager, and his team, who have had a tremendous input into the Bill.
The noble Lord, Lord Tope, made the point that a substantial number of changes have been made to the Bill. I have not worked on a Bill that has changed quite so much during its passage through your Lordships’ House. That has been due to the power of the contributions around the Chamber. It has not been the Opposition particularly or any particular group. The Government have listened to the voices of experience and common sense. Certainly, the Cross-Benchers have played their full part and I pay tribute to the noble Lord, Lord Best, in particular. I think that we all look up to him on housing matters. I thank my team and I offer big thanks also to the Bill team. Particularly at this stage of the proceedings there are a lot of last-minute amendments in order to try to get everything in shape for the conclusion of the Bill. The team has worked very hard and has always been receptive to inquiries that we have made. This has been a really good exercise in scrutiny of what, frankly, was not a great piece of legislation when it arrived in this place. It goes back to the other place in much better form. I am not quite sure how it will find the time to deal with all the amendments but I wish it well.
Baroness Hanham
My Lords, before we get lost in the fact that we are nearly there, I will answer the noble Lord, Lord Best, briefly, but I hope satisfactorily. I want to make it clear that local authorities can use existing planning mechanisms to take forward planning proposals that a neighbourhood forum or parish council has produced without needing to hold a referendum. The draft neighbourhood plan policies can be taken forward by the local authority as a development plan document which is subject to independent examination but not referendum. Similarly, the permissions in the neighbourhood development order can be taken forward as a local development order which is subject to neither independent examination nor referendum. So both development plan documents and local development orders are required to be subject to appropriate and effective consultation.
However, it is an underpinning principle of this Bill that a parish council or neighbourhood forum should always be able to ask the wider community to decide in a referendum whether a neighbourhood plan or order should come into force. Therefore, neighbourhood development plans and neighbourhood development orders, which are tools that the Localism Bill introduces for planning at a neighbourhood level, will always be subject to a referendum of the neighbourhood. The referendum gives everyone in the community the opportunity to have their say and demonstrate evidence of community support in a manner that cannot be demonstrated through a petition or consultation.
Local authorities that work effectively with their communities in planning at a neighbourhood level will be in a good position to decide whether to take emerging proposals through the development plan or local development order route, but it has to be right that if a local community wants it, it can use the power in the Bill to prepare a neighbourhood development plan or order and ensure that the wider community has the final say in a referendum. The removal of that right would undermine one of the core building blocks of neighbourhood planning as envisaged in the Localism Bill.
With those reassurances and clarifications, I hope that the noble Lord will be willing to withdraw the amendment.
Baroness Hanham
Baroness Hanham
“51A In section 148(1) (HCA may not, during a moratorium, give or enforce directions as to the use or repayment of financial assistance)—
(a) before “the HCA” insert “neither”,(b) after “the HCA” insert “, nor the Greater London Authority, may”,(c) in each of paragraphs (a) and (b) omit “may not”, and(d) for the “and” between those paragraphs substitute “or”.”
Baroness Hanham
“Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I.2010/1158) | In paragraph 47(2) of Schedule 2, the word “7(1),”.” |
Baroness Hanham
My Lords, before we finally conclude at the end of all this time, I join very much with the remarks that have been made about the constructive way in which the Bill has been dealt with. It is absolutely remarkable that for all the months we have spent on the Bill it has resulted in seven votes on all the amendments and changes that have been put forward. It has been a great pleasure to lead the team on the Bill. I thank my noble friends Lord Attlee, Lord Taylor and Lord Shutt for the help and support they have given me on the Bill and for the extraordinary detailed and useful work that they have done. I particularly thank—sometimes with gritted teeth—my colleagues behind me, all of whom contributed significantly to the Bill. It would be fair to say that it has been an all-round-the-House contribution. I thank all noble Lords and hope that we will meet again at some stage.
Localism Bill
Baroness Hanham Excerpts(13 years, 2 months ago)
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Lord McKenzie of Luton
My Lords, my noble friend Lord Kennedy is having a well earned rest. He has passed the easy stuff to me.
In moving Amendment 23, I shall also speak to Amendment 24, which is consequential. Amendment 23 addresses the issue of tenancy strategies and seeks to replace the provisions in the Bill with an alternative formulation. It provides that the local housing authority in England, working with registered providers of social housing in its area, residents and other stakeholders, shall consider appropriate responses to relevant tenancy issues. The local housing authority must publish information detailing the approach taken locally to tenancy issues in any manner that it considers appropriate. The information may include how the local housing authority, registered providers and partners will work together in relation to a range of tenancy issues. The powers may be exercised by a single local housing authority or two or more local authorities acting jointly.
We have no objection in principle to tenancy strategies but consider the formulation in the Bill as it stands to be misplaced and too prescriptive. This was debated in the other place, so the issues are not new, just unresolved. Noble Lords will recognise that the amendment has been provided by the LGA and the National Housing Federation. The fundamental concern with how the Bill is drafted is that it reflects a centrist approach that of itself will do little to support better housing outcomes locally. Our amendment is an encouragement for co-operative working in developing strategies that reflect views not only of the local housing authority and registered providers of social housing but of residents and other stakeholders. The amendment could very much go with the grain of how councils are already working across the country with local landlords to identify and meet housing need. This work requires a good understanding of the local housing market, including new supply, the private rented sector, social housing, the impact of the new homes bonus and affordable rent—many of the issues debated earlier.
We have been presented with case studies that underline excellent work that is ongoing. I shall refer to two. There is the case of Hackney, where the Better Homes Partnership brings together a wide range of partners, including housing providers, community and voluntary representatives, to identify support and steer the delivery of Hackney’s long-term strategic objectives as set out in its sustainable community strategy. The partnership board is co-chaired by the deputy mayor and the chief executive of Hackney Homes, and the board has a housing management and housing investment subgroup that focused on strategic issues affecting Hackney’s people and places, such as antisocial behaviour, overcrowding, investment challenges and opportunities and the design and sustainability of new homes.
Shropshire Council’s housing strategy identifies housing needs and sets out how the council will meet them through an action plan agreed with internal and external partners. There is a clear focus on strengthening partnership with both registered social landlords and the private sector, and the council’s affordable housing allocation has been developed in consultation with tenants, applicants, housing associations and other stakeholders. The council is currently in discussion with registered providers regarding the development of its strategic tenancy policy.
The amendment would facilitate working across single local authority boundaries, as we have just instanced, and the development of local tenancy forums. Further, as the LGA points out, the timing of policy in Clause 137 is not well thought through. It requires the commencement of strategies that start in April 2012 but, given that the affordable rents model commenced in April 2011, that seems to be a bit late. I do not believe that we are apart on the need for strategic tenancy strategies, nor, I suspect, on the vision of how they might be developed. We suggest, though, that unfortunately once again the Secretary of State cannot let go and trust local councils and communities to deliver as they see fit. I beg to move.
Baroness Hanham
My Lords, I recognise that the amendment is founded on the concerns that the creation of tenancy strategies would enable local authorities to dictate to the housing associations in the area—exactly what the noble Lord, Lord McKenzie, said. I reassure the House that that cannot and will not be the case.
A housing association has to be aware of the strategy and take it into account as a relevant consideration when deciding what its own tenancy policy should be, but each individual landlord will be able to decide for himself—or itself, as far as the association is concerned— how it will use the new flexibilities that the new provisions in the Bill offer. We discussed that on the previous amendment.
Concerns in other quarters that a tenancy strategy represents the imposition of a heavy and centralist burden are, we believe, unfounded. All we are seeking to do is ensure that local policies on tenure are developed collaboratively and transparently, and that the tenancy strategy provides a simple framework for that to happen.
A tenancy strategy is not going to be difficult or burdensome to produce. There is no requirement for it to be in a specific format or to be of a particular length, and there is no barrier to local authorities working jointly with social landlords to produce one. I believe that we have struck the right balance between encouraging joint working and maintaining an individual landlord’s freedom to decide how they will use their new flexibilities, and that this is done in a light-touch way.
Clause 139 adds tenure to the matters on which the Secretary of State has the power to direct the social housing regulator regarding the standards that it has set. This power is key to the delivery of our proposals on tenure reform. The revised tenancy standard, to which I have already referred, will determine the detail of the additional freedoms on tenancies available to landlords and protections available to tenants, so it is right that the Government are able to give a direction on tenancy standards to the regulator. The Government’s power to direct the regulator is limited to a very few key areas, and it has always been acknowledged, including by the current regulator, that tenure is fundamentally a matter of government policy.
It is important to remember that the overall effect of the changes that we are making to the standards will actually be to reduce the level of regulation to which social landlords are subject and increase their flexibility. I hope that the noble Lord will accept that response and be willing to withdraw the amendment.
Lord McKenzie of Luton
My Lords, I thank the Minister for her response and her explanation of the Government’s position. She says that she is interested in and focused on a light-touch approach. I would, if anything, describe ours as slightly lighter and less centric, but we shall not argue about this. It is an issue that we have aired tonight and in another place. It is important that there is genuine flexibility in these arrangements, and that there are opportunities for full engagement across the piece locally when these strategies are being developed—not only by local housing authorities and providers but by representatives of tenants and the community more widely. That is the particularly important thing that we sought to probe in this amendment. Having said that, I beg leave to withdraw the amendment.
Lord McKenzie of Luton
My Lords, my noble friend Lord Kennedy has added his name to this amendment. I support everything that the noble Lord said in moving the amendment. I have nothing further to add. I do not propose to move Amendment 33, which is grouped with this amendment, when we come to it.
Baroness Hanham
My Lords, as I said in Committee, Amendment 28 is not necessary. The review already ensures that a decision by the landlord not to renew the tenancy must be fair and in line with the landlord’s published tenancy policy. Should the reviewing officer decide that the decision is not in line with the landlord’s policy, the landlord will need to reconsider his decision. Where a landlord seeks possession of a tenant’s property despite a review concluding that he was not acting in line with his own policy, the court will refuse to grant possession, as the Bill makes clear. Amendment 33 will not be moved. I hope that the noble Lord, Lord Shipley, is minded to withdraw Amendment 28.
Lord Shipley
My Lords, I am grateful to the Minister for her response. I hope that what she has described will happen. I am sure that it will. We need to ensure that people who are worried about a successive tenancy have little cause to fear that the landlord might decide not to grant a further tenancy. On the assumption that the measure will provide what we are trying to achieve, I beg leave to withdraw the amendment.
Lord Beecham
My Lords, this amendment relates to the position of tenants under the new flexible tenancies who seek to improve their property with the consent of the landlord. There is, of course, existing provision for this to happen; this matter is dealt with fairly routinely. The local authority or social landlord does not have an obligation to consent to an improvement. That is still within their remit to determine. However, under the Bill, the tenant will no longer be able to apply for consent or secure compensation for such improvements if he has a flexible tenancy.
It does not seem to me sensible to deter tenants who wish to improve their property from carrying out that improvement as long as the authority is prepared to agree to it. That case was strengthened today by the meeting—this has been referred to on more than one occasion—which the noble Baroness convened this morning with her right honourable friend the Minister for Housing. The latter was clear—indeed, the noble Baroness echoed his thoughts earlier today—that only in a minority of cases would a two-year flexible tenancy be granted, and that he did not expect to see many of those. He was bullish—that characteristic has earned him some notoriety—about the extent to which short flexible tenancies were unlikely to be granted, and said that most would be longer. I think he anticipated that 10 years or longer would be par for the course, in which case it is surely not sensible to put any difficulties in the way of tenants improving a property. Such improvements would still be subject to the consent of the local authority. I cannot see any reason why that option should not remain open and why a property should remain unimproved by the tenant when there is a real possibility that he might carry out such works for the benefit of future tenants as well as himself.
This is not in any sense a political or ideological amendment. It is simply a practical one that seeks to retain the present position, in the hope that people will be encouraged to improve their properties without the difficulty that Clause 142 would put in their way. I hope that the Minister, if she cannot affirm tonight that the Government are prepared to accept the amendment, will take the issue back and have a serious look at it, because I cannot see who gains from the clause as it stands. I beg to move.
Baroness Hanham
My Lords, I can probably reassure the noble Lord about this. While the amendment would provide flexible tenants with the same statutory rights as traditional secure tenants to improve their properties with the written consent of their landlord, and be compensated for those improvements on leaving the property, our proposals provide flexible tenants with many of the same rights as other secure tenants—for example, a right to exchange their home with another tenant or a right to succession for a spouse or partner.
However, the right to make improvements is, we feel, less appropriate for a tenancy that may be for five or 10 years than it is for a traditional secure tenancy, where a tenant may be in the same property for the rest of their life. That does not mean that tenants on flexible tenancies cannot make improvements to their house or, indeed, be compensated for them. What it does mean is that it will be for the landlord to decide what improvements the tenants can make, and that that would be included in the tenancy agreement. If the tenants are there for a full term, a whole lifetime or more, they can do what they like. Effectively, they can improve their property and the landlord would compensate them subsequently. However, in shorter tenancies, landlords must delineate what they will allow tenants to do; then there is nothing to stop them being compensated for that.
The noble Lord, Lord Beecham, looks more puzzled than cross—which he sometimes looks. Perhaps he may not be willing to withdraw the amendment, but I invite him to do so.
Lord Beecham
My Lords, I confess that I was puzzled by these amendments until my noble friend patiently explained them to me. She completely persuaded me and that persuasion has been reinforced by the contributions of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins. It seems that we are dealing here with two potentially vulnerable groups of people—those who may themselves suffer from an incapacity or disability and those who care for them—and it would be sensible to give some assurance and security to both those groups in the context of the provisions of the Bill.
The amendments suggest that the Secretary of State should publish directions to the social housing regulator. The point made by the noble Baroness, Lady Gardner, is a fair one and needs to be taken into consideration. It could well form part of the directions that might be given to the social housing regulator in terms of the standards that would be set so that, where a carer remained in a property, an alternative offer of accommodation would have to be made. I should have thought that that would meet the noble Baroness’s point.
I hope that the Government will respond positively to the amendment—if not tonight, then perhaps at Third Reading. I cannot see that it would in any way violate the thrust of the Government’s policy. I believe from the Mencap briefing that some 500,000 to 600,000 people are living with parents or carers. Presumably they would not all be eligible for security of tenure but a significant number would be, and it is right that, given the problems that they are already confronting, they should not have the added problem of feeling insecure about their future. They are an important group in the community, and the community as a whole must take responsibility for ensuring their continued security and comfort.
I hope that the noble Baroness will respond positively—if not definitively tonight, then at Third Reading. I understand that there have been discussions with the noble Lord, Lord Rix. I assume that a potential way forward would be agreed with him and I hope that we might see that way forward, if not tonight then at Third Reading. The Opposition would certainly warmly support that.
Baroness Hanham
My Lords, I hope that we will not have to return to this at Third Reading, as I trust that I shall be able to reassure the House on these matters. I did indeed have the opportunity to talk to the noble Lord, Lord Rix, about his concerns, as well as to people at Mencap. I think that we largely reassured him, although there were one or two areas about which I know he was not content. However, we covered quite a lot of ground.
I am immensely sympathetic to this whole problem. People who have children with learning difficulties, or anyone who looks after someone with an illness, a disability or a mental illness, have enough problems to worry about without being concerned about what will subsequently happen to the person they are caring for.
Our proposals in the Bill will enable decisions about succession to be made on a case-by-case basis. I am sure that noble Lords will be aware that at the moment carers have no right to succeed to a tenancy, even if they have given up their home. There is absolutely nothing that gives them any rights to take on the property. They can succeed only as a spouse or a family member and only in certain circumstances. Therefore, we are trying to make succession easier by giving social landlords the power to give rights as they see fit. This is important. It will be left to landlords to decide to whom they give succession rights. They can, and, I imagine, will, decide that someone who gives up a property to care for a tenant will be entitled to such a succession. Under the provisions, they can also grant succession rights to an adult child with a learning disability living with their parents when either of those parents is unable to maintain where they are. We already require landlords to publish their policies setting out the circumstances in which they will use the new flexibilities that they will have around succession, and the tenancy standard will also require them to set out their policies on how they take into account the needs of vulnerable households. That is what we are talking about today—people with needs.
The noble Baroness, Lady Gardner, spoke about the need for flexibility to recover property that had been adapted. We absolutely agree with that. Landlords can already do that and can recover property adapted for disabled people. The only thing that they must do is house the successor elsewhere. If a tenancy is granted to a carer—a successor—and the property is completely unsuitable, they must be offered an alternative. The provisions are there. The noble Baroness, Lady Wilkins, and the noble Lord, Lord Rix, may worry because we are not categorically saying that that is what will happen. What we are saying categorically is that, within the terms that we think could be adopted, landlords must now take account of the position of people who are in the property and that it does not necessarily have to be a spouse who takes the tenancy of it. The people we would worry about are those who have given up their homes or who are caring for other people without having somewhere else to go.
I hope that, with those reassurances, the noble Baroness will feel able to withdraw the amendment. I thank her for moving it on behalf of the noble Lord, Lord Rix.
Baroness Wilkins
I am grateful to the Minister for that reply and am most grateful to everybody who supported the amendments. I fear that it is still left to the discretion of the landlord and still leaves a feeling of insecurity. I would like to read the record and discuss it with the noble Lord, Lord Rix, who may want to return to the issue on Third Reading. I beg leave to withdraw the amendment.
Baroness Hanham
“(2A) In that Part of that Schedule, in Ground 16 (vesting of tenancy in member of previous tenant’s family other than his or her spouse or civil partner)—
(a) at the beginning of the first unnumbered paragraph for “The accommodation afforded by the dwelling-house” substitute “The dwelling-house is in Wales, the accommodation afforded by it”,(b) in the first unnumbered paragraph—(i) in paragraph (a) after “tenancy)” insert “or 90 (devolution of term certain)”, and(ii) in paragraph (b) for “the date of the previous tenant’s death” substitute “the relevant date”, and(c) after the first unnumbered paragraph insert—“For this purpose “the relevant date” is—(a) the date of the previous tenant’s death, or(b) if the court so directs, the date on which, in the opinion of the court, the landlord (or, in the case of joint landlords, any one of them) became aware of the previous tenant’s death.””
Baroness Hanham
My Lords, these are government Amendments 32, 34, 35 and 36. When someone who is not a spouse or partner succeeds to a local authority property which is larger than they reasonably need, the landlord can move them to a more suitably sized property between six and 12 months after the death of the original tenant.
A government amendment tabled in Committee in response to a suggestion put forward by the Opposition dealt with the problem of a successor tenant withholding news of the death of the tenant from the landlord until after the recovery window had closed, thereby preventing the landlord reclaiming the property. It did this by enabling a court to decide whether the window is deemed to have opened six months after the original tenant died or six months after the landlord became aware of the death. However, the amendment in Committee applied only to cases in England. The Welsh Assembly Government have asked that this provision apply also to local authority tenancies in Wales. This new amendment ensures that that is the case.
Government Amendments 34, 35 and 36 are minor and technical and ensure that certain provisions apply only to England and not also to Wales, in line with our original policy intention. I beg to move.
Lord Wigley
My Lords, I intervene briefly to ask about the implications for Wales. I am grateful to the Minister for indicating that she has taken up the view supported by the National Assembly. That is very good and moves things forward. With regard to Amendment 36, the Explanatory Notes, to which I referred in Committee and which refer to the original Bill presented to us, suggested that the clause on repairing obligations in leases of seven years or more was applicable to both England and Wales. Was that incorrect or have things changed during the passage of the Bill? My question is parallel to another that I asked. On that occasion, the Minister said that the clause was intended to cover possibilities that might arise in future. I would be grateful, when she has had an opportunity to get advice, if she would clarify the position so that we in Wales know where we stand on the amendment.
Lord McKenzie of Luton
My Lords, I will speak briefly, subject to anything that arises from the question raised by the noble Lord, Lord Wigley. Obviously we support the amendments. I take the opportunity to thank the noble Baroness and her team for the volume of correspondence that we have had, which has explained the government amendments and the position on amendments that were withdrawn. I will not comment on timeliness—I understand that we have had a further missive during the course of our proceedings today—but it is generally helpful to have things set down in correspondence in the way in which they have been.
Baroness Hanham
My Lords, I thank the noble Lord, Lord McKenzie of Luton, for that. A prodigious amount of work went on during the Recess. We were very conscious that, with the withdrawal of all the amendments at the end of the previous stage, it was important that noble Lords understood what we had done. I say to the noble Lord, Lord Wigley, that we made this correction in line with the Welsh Assembly's wishes that the repairing obligation change would not apply to Wales.
Baroness Hanham
“(aa) the dwelling-house is in England,”
Baroness Hanham
Baroness Hanham
Baroness Gardner of Parkes
I would like to ask a question about this amendment, which I am not entirely clear about. I have been told recently by people who have had court possession orders and eviction notices served on them that that does not really put them out of anything until the bailiffs come in. What is the position if the court grants a possession order but the bailiffs have not been instructed? I understand that there is usually quite a time lag between those two events and that the housing benefit comes through in that time, particularly when it has been delayed. How would that work in relation to those two different procedures?
Baroness Hanham
My Lords, I have all sorts of answers that were given in the letter, which I was absolutely satisfied covered everything that could possibly be raised. I am stuck on this position about the courts and will have to come back to noble Lords, because the response I have already given is that landlords must have the right to go for possession, particularly where there are rent arrears and particularly where those are long term. On the other hand, landlords are expected to use every possible means of supporting tenants to sustain their tenancies and to prevent unnecessary evictions. That should be a requirement on all social landlords within a revised tenancy standard. The expectation is that evictions should happen only as a very last resort.
There is a well established pre-action protocol on rent arrears and the data show a steady decline in evictions of housing association tenants in recent years. However, we believe that good practice in managing rent arrears should not exclude using mandatory grounds in limited circumstances—right at the end of the road when the landlord really had not been able to come to any satisfactory conclusion. Recent independent research suggests that mandatory grounds are used sparingly, in less than 5 per cent of total housing association evictions for rent arrears. That is not a very high percentage, and indicates that it is not being used as a blunt instrument and takes proper account of the particular circumstances of the case.
There are protocols and we expect landlords to abide by them. I do not think we want to remove the mandatory aspect of ground 8 from the legislation. Under the previous Government, a working group was convened to look at the issue in detail and it commissioned independent research through the Tenant Services Authority. However, there was absolutely no unanimity among external partners that abolishing ground 8 was necessary or desirable.
Having talked long enough, I have been able to get at least a partial reply to my ignorance about what happens in the courts. The grant of possession does not necessarily mean eviction. Landlords may need to apply to the court again for an eviction order and arrears could be resolved before that point, which should have been the situation in the case mentioned by the noble Lord, Lord Palmer. If it is an arrear, time should be given for housing benefit to come through to prevent that eviction.
I think I understood the noble Lord to say that the courts felt that they had no alternative but to grant possession and to ensure eviction. I may have misunderstood him but I hope I have not. If that is the situation, I simply say again that no action should necessarily need to be taken immediately as a result of that court decision, particularly if it relates to money and it is felt that eviction is likely to come about. I am bound to say that in that scenario I would expect the landlords to have got to that situation before they apply for eviction, but there may be reasons why they have not.
We would resist removing ground 8, which leaves room for negotiation and should not have the effect of ensuring that tenants are automatically evicted as part of the court decision. If I have misunderstood anything that the noble Lord, Lord Palmer, has said, he is bound to let me know when he replies to the amendment. If necessary I will look at that position again, but I hope I have picked up the main points of his concerns. I very much hope that he will feel able to withdraw his amendment.
Lord Palmer of Childs Hill
My Lords, I thank the Minister for her detailed reply both in writing and verbally. She has not misunderstood anything but she lives, as perhaps we all do, in this utopia where all landlords are good. I am afraid that in the world in which I live not all landlords are good, and I believe that there are a modest number who will use ground 8. I hope that only a modest number will do that, but there will be some who will. There should be nothing in legislation that removes the discretion of the court to do what is right. The matter of when the bailiffs move in was raised. Those who have had experience of the courts know that that is a varied situation because it often depends on whether the landlord has set the thing in motion to get early occupation of the property.
That is particularly important at this moment. The noble Lord, Lord McKenzie, talked about when benefits—universal benefits and the like—are paid. Those of us who have been local councillors—I have been a councillor for 25 years and still am—know that local authorities and social landlords use IT systems to deal with housing benefits. For years, my local authority used Pericles, which went dreadfully wrong. It is not an indictment of any landlord that they should use a system that goes wrong, because IT systems often do, but the fact is that, with the changeover to universal benefits, which has already been mentioned in this debate, there is a great probability that housing benefits arrears will be built up unintentionally because of a changeover in computer systems. In that case, there would be the danger of ground 8 evicting people without the courts having a chance even to postpone eviction. I would ask that my noble friend the Minister looks again at how many such cases there have been and whether there is a need to tweak this in the legislation.
Localism Bill
Baroness Hanham Excerpts(13 years, 4 months ago)
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Lord McKenzie of Luton
My Lords, before the Minister responds, perhaps I may comment on the amendments which have just been moved. I thoroughly support the amendment of the noble Lord, Lord Cameron. Issues around capacity are vital, not only to the planning aspects of the Bill but to the whole issue of localism and whether people can make a reality of it. The impact assessment sets out the range of figures that might be involved in developing neighbourhood plans and holding referenda. Those are not small figures—I have forgotten what the range is, but it is not insignificant.
If there is not proper capacity building, proper training and proper funding, then, as the noble Lord, Lord Cameron, said, the people who will be able to take advantage of these arrangements will be the better off. They will inevitably—from their point of view not unreasonably—use them for their benefit and not necessarily for the benefit of the community as a whole. We should guard against that.
As regards the amendment of the noble Lord, Lord Lucas, he wishes for people to be involved in the referendum from the age of 14. I do not disagree with that but, as the schedule is constructed, to be able to vote in a referendum you need to be able to vote for your councillor in the first place. You therefore need to be 18 years of age and so he might need a slightly different amendment. However, the concept of involving young people in their neighbourhood is absolutely right and I support it.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I can be reasonably helpful over all of these amendments. On the first amendment, the noble Lord, Lord McKenzie, is concerned about putting a requirement for consultation in the Bill. That is not necessary. We do not believe that it ought to be in primary legislation, anyway. The right place for consultation is in secondary legislation and the Government have appropriate powers to do this. I say that the amendment is inappropriate not because the provisions are there already but because consultation is about to take place in this area. We shall congregate in the summer and I hope that by the time we meet again we will have some views on the issue. I hope that will satisfy the noble Lord.
On Amendment 153A, our approach has already been to encourage consultation and participation as early as possible. Proposals can only proceed to examination if they have been the subject of consultation with the wider community and it has to be made clear that that has been done. However, as I say, there will be more consultation on consultation over the summer.
As to the amendment of the noble Lord, Lord Cameron, the Government have already undertaken to implement a package of measures to ensure that neighbourhood planning is successful and to strengthen people’s ability and understanding of how to do it. In order to help with this, we have already given more than £3 million to four organisations which are tasked with providing the training, back-up and experience for neighbourhood forums to access so that they receive the support they need. We are also considering whether to provide direct financial assistance to neighbourhood forums for very much the same purpose. The intention is there and it is well understood.
As regards the amendment of the noble Lord, Lord Lucas, it is a requirement that those who take part in a referendum have to be entitled to vote in a council election on the day of the referendum. As the noble Lord, Lord McKenzie, said, someone aged 14 is not entitled to vote in a council election and, therefore, they would not be entitled to vote in the referendum. We believe that it should be only people who are eligible to vote in council elections. These are the people who elect local councillors—and the local councils then go on ultimately to make the final planning decisions —and we believe that it is right that only those aged 18 and above should be involved in these referendums.
With those explanations, I hope the noble Lord will feel able to withdraw his amendment.
Baroness Hanham
“(2) If—
(a) a proposal by a qualifying body is made by an organisation or body designated as a neighbourhood forum, and (b) the designation is withdrawn at any time before the proposal is submitted for independent examination under paragraph 7,the proposal is to be treated as withdrawn by the qualifying body at that time.(3) If the withdrawal of the designation occurs after the proposal is submitted for independent examination under that paragraph, the withdrawal is not to affect the validity of the proposal.”
Baroness Hanham
Baroness Hanham
“14A (1) The additional referendum mentioned in paragraph 12(4) must be held on the making of a neighbourhood development order if the draft order relates to a neighbourhood area that has been designated as a business area under section 61GA.
(2) Sub-paragraph (2) of paragraph 14 is to apply in relation to the additional referendum as it applies in relation to a referendum under that paragraph.
(3) A person is entitled to vote in the additional referendum if on the prescribed date—
(a) the person is a non-domestic ratepayer in the referendum area, or(b) the person meets such other conditions as may be prescribed.(4) “Non-domestic ratepayer” has the same meaning as in Part 4 of the Local Government Act 2003 (see section 59(1)).
(5) Regulations may make provision for excluding a person’s entitlement to vote in the additional referendum.”
Baroness Hanham
Lord Greaves
My Lords, without actually going back to it and looking it up, I do not think so. If that is what it says, it was a mistake. Perhaps it is the wrong line.
Baroness Hanham
My Lords, I can probably enlighten the noble Lord, Lord Greaves, on what his amendment was about when we get to it. Amendments 153ZZAKA to 153ZZAKF all relate to the provisions on charges that we started discussing in the last group. Amendment 153ZZAKA would make it a requirement for the Government to introduce regulations imposing such charges. It is our intention to introduce charges that would be payable by developers on development that has been given permission by a neighbourhood development order. However, that is not to say that, in future, a decision could not be made to meet some of the costs of neighbourhood planning in a different way. We do not, therefore, wish to tie our hands by making it a requirement to regulate in this way. Having said that, before the next stage I would like to test out the business of when the charges are paid so that I can have a sensible answer about it. It is very late for a charge to be made at a time when permission has been given and just before development.
Amendment 153ZZAKB would specify that the costs that can be covered by such charges include the cost of holding a referendum. That is already implicit in the current provisions, and specifying a single cost like this could be taken to imply that other costs have been excluded. They have not, and that would be included.
Amendments 153ZZAKC and 153AKD both relate to the point at which any charge should be made. I am sorry—I leapt in on the previous amendment with what I should have said on this one. Our view is that developers should pay a charge when development commences. We just need to get a little more advice on that, and as to why it is there. It would be more helpful if the fee and charge were made earlier. I will come back to that.
Amendment 153ZZAKE says that, when charges are imposed in relation to a local development order, the charge must be made before the authority takes any further action in relation to that order. The provisions do not extend to local development orders. In the case of neighbourhood development orders, if full permission has been given for development, there may be no further action for a local planning authority to take. So this provision would have no teeth.
Amendment 153ZZAKF would restrict the ability of the Secretary of State to make regulations about the collection and enforcement of charges on a neighbourhood development order. This was the amendment that the noble Lord, Lord Greaves, could not quite remember. The consequence would be that charges would still apply in relation to neighbourhood development orders, but the collection and enforcement of those charges would be constrained. These powers are designed to ensure that the regulations can deal flexibly and efficiently with changes in circumstances or with problems which become apparent in the future.
There were five amendments on financial assistance. Amendments 153ZZAKG, 153ZZAKH and 153ZZAKJ relate to the provisions on financial assistance for neighbourhood planning. Amendments 153ZZAKG, 153ZZAKH seek to prevent the provision of financial assistance for promoting the benefits of neighbourhood planning, and Amendment 153ZZAKJ seeks to prevent assistance being given to other bodies or individuals. We believe that, in addition to central government funding to local planning authorities for their neighbourhood planning functions, communities that wish to engage in shaping their future should receive support. This could be achieved through funding an independent advice service, through direct funding of neighbourhood groups or through a mixture of both approaches. We would not want to rule those out. The amendments would limit our flexibility.
I recognise the concerns behind Amendments 153ZZAKG and 153ZZAKH. It is certainly not our intention to finance reams of propaganda in support of neighbourhood planning. But we do want to ensure that communities, especially those communities with little prior knowledge of the planning system, can understand what neighbourhood planning can do for them. This is what this provision is aimed at. Similarly, Clause 105(2) would allow us to enter into contracts with training providers or to give grants to voluntary sector organisations to work with communities to help them realise their goals. That reinforces what I said to the noble Lord, Lord Cameron, under previous amendments. It is important that when these neighbourhood forums are set up they have the support they need to enable them to do the job that has been put before them. I hope that that answers the noble Lord’s questions and that he can withdraw his amendment.
Lord Greaves
My Lords, I thank the Minister for her reply but it does not really take us much further than we can deduce simply by reading the Bill. Concerning financial assistance, I am trying to find out how it is going to work, how much money there will be, who will be responsible for handing out the dosh, how people apply for it and who then makes a decision between the different people applying. Perhaps the Minister does not have any of that information, but that is what I was really trying to probe. Does she agree that somebody can write down what the Government’s thinking is, as far as it goes, together with who has had the money so far and on what basis they have been chosen? Would it be possible to write about that?
Baroness Hanham
My Lords, I will certainly write. Regarding the four organisations that have already received the money, I think there was a full tendering exercise but I will certainly ensure that the noble Lord has the details he asked for. I regret that, both when listening to him and reading his amendments, I was not aware of quite the details that he was looking for but with him having made them clear now, I will make sure that he has answers to them.
Lord Greaves
That is fair enough. When you put down amendments to delete pieces of Bills to probe things, it is sometimes difficult to get through exactly what you are trying to get at. Concerning the charges, the amendments that I put down should be seen as a whole. Individually, they make no sense at all but, taken as a whole, I am trying to suggest that the point at which the charge is being levied is too late at the moment—the Minister had some sympathy with that and is going to look at it—and that it should be paid upfront. People should go in and hand their money over the counter, or however they pay, rather than being sent a bill and then having all this chasing and enforcement procedure. In the amendment that the noble Lord, Lord McKenzie, did not understand, I was just taking out all the chasing-up-the-money procedures. If you take a planning application in and do not hand your money over, your application is not dealt with; it is as simple as that. It seems to me that the same thing should apply for this.
However, the Minister said that she would look at this other point and I look forward to learning the results of her researches. On that basis, I beg leave to withdraw the amendment.
Baroness Hanham
Baroness Hanham
Baroness Hanham
“Assurance as regards prosecution for person served with enforcement notice
In the Town and Country Planning Act 1990 after section 172 (issue and service of enforcement notice) insert—
“172A Assurance as regards prosecution for person served with notice
(1) When, or at any time after, an enforcement notice is served on a person, the local planning authority may give the person a letter—
(a) explaining that, once the enforcement notice had been issued, the authority was required to serve the notice on the person,(b) giving the person one of the following assurances—(i) that, in the circumstances as they appear to the authority, the person is not at risk of being prosecuted under section 179 in connection with the enforcement notice, or (ii) that, in the circumstances as they appear to the authority, the person is not at risk of being prosecuted under section 179 in connection with the matters relating to the enforcement notice that are specified in the letter,(c) explaining, where the person is given the assurance under paragraph (b)(ii), the respects in which the person is at risk of being prosecuted under section 179 in connection with the enforcement notice, and(d) stating that, if the authority subsequently wishes to withdraw the assurance in full or part, the authority will first give the person a letter specifying a future time for the withdrawal that will allow the person a reasonable opportunity to take any steps necessary to avoid any risk of prosecution that is to cease to be covered by the assurance.(2) At any time after a person has under subsection (1) been given a letter containing an assurance, the local planning authority may give the person a letter withdrawing the assurance (so far as not previously withdrawn) in full or part from a time specified in the letter.
(3) The time specified in a letter given under subsection (2) to a person must be such as will give the person a reasonable opportunity to take any steps necessary to avoid any risk of prosecution that is to cease to be covered by the assurance.
(4) Withdrawal under subsection (2) of an assurance given under subsection (1) does not withdraw the assurance so far as relating to prosecution on account of there being a time before the withdrawal when steps had not been taken or an activity had not ceased.
(5) An assurance given under subsection (1) (so far as not withdrawn under subsection (2)) is binding on any person with power to prosecute an offence under section 179.””
Baroness Hanham
Baroness Hanham
Baroness Hanham
“Acceptance of applications for development consent
(1) The Planning Act 2008 is amended as follows.
(2) In section 55(3) (conditions for acceptance of application) omit paragraphs (b) and (d) (application may be accepted only if it complies with requirements as to form and contents and with any standards set, and gives reasons for any failure to follow applicable guidance).
(3) In section 55(3) after paragraph (e) insert “, and
(f) that the application (including accompaniments) is of a standard that the Secretary of State considers satisfactory.”(4) In section 55 after subsection (5) insert—
“(5A) The Secretary of State, when deciding whether the Secretary of State may reach the conclusion in subsection (3)(f), must have regard to the extent to which—
(a) the application complies with the requirements in section 37(3) (form and contents of application) and any standards set under section 37(5), and(b) any applicable guidance given under section 37(4) has been followed in relation to the application.”(5) In section 37(3) (requirements as to form and contents of application) after “must” insert “, so far as necessary to secure that the application (including accompaniments) is of a standard that the Secretary of State considers satisfactory”.”
Baroness Hanham
“Timetables for reports and decisions on applications for development consent
(1) The Planning Act 2008 is amended as follows.
(2) In section 98(3) (Examining authority must report on application within 3 months beginning with deadline for completing its examination) for the words from “beginning” onwards substitute “beginning with—
(a) the deadline for completion of its examination of the application, or(b) (if earlier) the end of the day on which it completes the examination.”(3) In section 107(1) (which provides for the application to be decided within 3 months of the start day but is amended by this Act to provide for decision within 3 months of the deadline under section 98(3))—
(a) for “with the” substitute “with—(a) the”, and(b) at the end insert “, or(b) (if earlier) the end of the day on which the Secretary of State receives a report on the application under section 74(2)(b) or 83(1)(b).””
Localism Bill
Baroness Hanham Excerpts(13 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, before we proceed any further, it might be helpful to Hansard and to the rest of the discussion if I give a short résumé of the purposes behind this part of the Bill. It has caused enormous consternation and we have had endless discussions—useful discussions. If the Committee will allow me, I will take five or 10 minutes to go into it.
The idea behind this chapter is very simple. We know already that many communities, both urban and rural, have lost the use of buildings or land that were important to them because they were sold privately or without an interested community group having time to raise the necessary funds. There are instances of an adult education centre in Calderdale, a Methodist church in Cornwall and any number of village shops and pubs, as well as other community assets, which noble Lords will be aware of in their villages and towns.
Local authorities can, of course, already choose to transfer assets to local community ownership or management. They can do so on favourable terms where it will promote local well-being under existing legislation. The Government have actively supported this and want it to continue. The assets of community value provisions that we are considering today are aimed at situations where the local authority does not choose to do so, and at assets owned by other public bodies and by charitable or private owners. We are giving communities the right to nominate assets of community value and local authorities a duty to list them if they satisfy certain criteria. Then, if—and only if—the owner of a listed asset decides to dispose of it, he or she will not be able to do so for a defined period. This will allow interested community groups the opportunity to prepare a business plan and raise the necessary funds to bid for the asset. The owner will not be restricted in marketing the property in preparation for its disposal during this period. The word “disposal” is used as opposed to “sale” because these provisions will apply both to freehold sales and to the granting and assignment of long leases. Those will be the definition of “disposal”. However, I can assure your Lordships that it is our clear intention that the provisions will not apply to transfers made by inheritance, gifts or transfers between family members and between partners in the same firm or trustees of a single trust; these will be able to proceed unimpeded.
We are continuing to explore other appropriate exemptions, and I would like to address these and other issues concerning the operation of the moratorium rules when we consider Clause 82, which may not be today. I also want to stress that these provisions do not restrict in any way the freedom of the owner of a listed asset to dispose of it to whomever they choose and at whatever price they choose. They only affect when they can do so. Furthermore, they do not confer a right of first refusal, unlike the Community Right to Buy scheme that operates in rural Scotland. Also, they do not directly place any restriction on what an owner can do with their property, once listed, while it remains in their ownership. This is because it is planning policy that determines the permitted use of a particular site. An owner can, of course, apply for planning permission for change of use; this will be dealt with by the local planning authority in the normal way. In that situation, the authority may consider the fact that an asset has been listed as a material consideration, or they may not.
We are acutely aware that we have to balance the community benefit that these provisions will bring with the rights of property owners. That is why we have built a range of safeguards into the process. Landowners will have a right to request that the local authority review a listing decision. We also intend to introduce a right of appeal against a review decision.
The Bill allows for the payment of compensation, and it is our firm intention to put in place a compensation scheme, administered by the local authority, which will consider claims for costs and loss incurred by non-public owners—that is, private owners—in complying with the requirements of the scheme.
The Bill provides for a number of more detailed aspects of the scheme to be set out in regulations. This will make it possible to review how those provisions are working after a year or two and to make adjustments if they appear necessary. It has also allowed us to consult widely on the details, and we have been carefully considering the 256 responses to the consultation, which ended on 3 May. They will inform our views about this as we go along.
There is another balance to strike. On the one hand, consistency across the country is desirable, giving certainty for interests represented nationally. This could be achieved by putting more detail in the Bill or in regulations. On the other hand, in encouraging localism, we want to allow local authorities to use their discretion and respond to local circumstances and views. There are amendments before us, which we will discuss in a minute, that support both these points of view, so following careful consideration of all the representations we have received we believe that certain things should be set nationally to ensure fairness, to safeguard people’s rights and to make it easier for citizens and communities to make use of these provisions alongside the others in the Bill. However, we also believe that there is considerable scope for local decision-making, and our intention is to use delegated powers frugally to ensure appropriate local flexibility.
We expect the debate to focus on four aspects of the provisions in particular. The amendments suggest that this is right. They are the definition of an asset of community value, who has the right to make a community nomination, the length of the moratorium periods and the types of disposals that will be exempt from the provisions. There are amendments about a few other matters. We have set out our current thinking on these and other areas of detail in the discussion paper deposited in the House Library last week, and I informed noble Lords that it was there. We will be happy to expand on our thinking on these areas when we debate the relevant clauses, and we can take into account what has been said.
I thought it might be helpful to put that in context and then, as we discuss the amendments, I will respond to them individually at the end of the debate.
Lord Cameron of Dillington
The Minister has set out in detail her view of Chapter 4. I have a completely opposing view of it. I have put my name to the stand part of every single clause to set out an opposing view at this early stage before we get into the detailed amendments. Is that in order, or does the Minister want to take some detailed amendments first?
Lord Patel of Bradford
My Lords, I will be very brief as the noble Baroness, Lady Byford, covered many of the points succinctly. First, I thank the Minister for her intervention earlier. It was very helpful, but I think that we need to study the note in the Library. I have a feeling that this will be an iterative process. We would certainly welcome involvement in that and further meetings.
Notwithstanding the benefits that my noble friend Lady Thornton pointed out in respect of this clause to local communities and local areas, we recognise the good intentions and the thrust behind many of the amendments and the arguments that have been presented, together with carefully crafted amendments. We obviously need to look carefully at the practicalities of what this means. I can say certainly that the point made by the noble Lord, Lord Moynihan, struck a chord. It is clearly an issue that we need to take further and seek more clarification from the Government.
We agree with the comments made by the noble Lord, Lord Jenkin, in respect of the centralised delegated powers. We are completely on board with that. That issue has kept coming up throughout all the debates and needs to be looked at very carefully. As I say, I think this is going to be an iterative process. The amendments pose some very serious questions that we need to explore further, and I look forward to what the Minister has to say about that. We will certainly want to sit round the table with the Minister and others and look at this a bit more carefully.
Baroness Hanham
My Lords, this has been a longer debate than we would have hoped for at this time of night. I fully accept that this is not ideal but that is how the business has gone. We could not have stopped at 9.30 pm. I kept hoping that somebody would manage to keep the debate on the previous amendments going long enough for us to stop, but that has not been possible. We have had the opportunity now to discuss the amendments pretty widely and I will speak to them as well as I can in a minute or two.
I want to say from the outset that we are looking at this all the time. I hear what has been said and where I cannot answer questions put forward by noble Lords satisfactorily, we will clearly need to make sure that by the next stage we have had the sort of discussions the noble Lord, Lord Patel, is talking about. Indeed, we have already had considerable discussions on the points made. The fact that they have come up again probably means that we have not satisfied noble Lords and we will have to try and do that and look at making revisions to the Bill before the next stages.
In my opening remarks I tried to bring this back from being a very wide problem into being quite a simple, singular matter. The purpose behind these provisions is to try and ensure that, when a valuable asset in a local community comes up for sale, the local community has a window of opportunity to see if it can get the money together to buy it. I know this is happening all over the place. There are lots of examples already of people buying their local pubs or shops to keep them from going out of business.
There are also plenty of examples of people saying, “If only we had had a bit of time, we could perhaps have done something to preserve this and protect it for our local community”, and that is what we are offering here. It is not going to be a very long time; it is just going to be a short time for people to say, “That is a valuable asset. We have already said that we like it. If it comes up for sale, we want the opportunity to see whether we can, as a community, get the money together”. What the Bill does not do is say that they can buy that facility if they cannot afford it at the price that the seller is asking. During the time that the community is putting the money together, there is nothing to stop the person selling from going through all the negotiations and discussions that they want. At the end of the day, the seller may be perfectly happy to sell whatever it is to the community, and they can do that. There is nothing in the provisions that says that they cannot sell to the community at an early stage if they want to. All we say is that there is a window of opportunity for the community to find out whether they can do something.
Most noble Lords have not seen that as being unreasonable, but there is a certain feeling of pressure and compulsion about this which really is not there. The only compulsion, if I can put it that way, is the fact that the asset has to be notified in advance as being something in which the local community is interested. That is where a list comes in.
In a village, I do not know how many pubs people can claim to have an interest in. I am not sure how many assets there will be in a town centre in which people can have an interest, but probably not a lot. I do not think we are talking about a multitude of areas on which people will want to put their finger and say, “If you are going to sell it, this is an asset that we want”. Public assets can also be listed. If a local authority decides to sell a sports ground, for example, that is an area where this provision would intervene, so that it could have an opportunity to see whether it could buy it.
I shall read very carefully what has been said and I shall make sure that my colleagues do too. We have to be able to answer more clearly than I can tonight the concerns that are being raised. I cannot say that they are not justified because I cannot narrow it down sufficiently at this stage to say categorically that this will be the situation. As regards the fears expressed by noble Lords about land assets being devalued because part of the land will have been identified as an asset, a compensation scheme will come into effect. On the point about something on a list coming up in a land search, presumably someone will say it is there anyway, but I do not know whether that will devalue it. I do not see why it should just because someone is trying to get some money together. It might delay the sale, but there will be compensation if that happens.
The fact that my noble friend Lord Moynihan spoke about the loss of sports and recreation facilities if this goes ahead, and that other noble Lords commented on the fact that landowners will be advised not to let their land be used for any community facility, is something of which we need to take cognizance. If that is what is being said, and if that is a fear, that will stretch out further as we go through the Bill. We need to take note of that and I can assure noble Lords that we will discuss it and come back on that.
I will go through the amendments. Some people will be quite happy with what I am saying and others will not be. Going through the brief on the amendments will pick up some of the points that have been raised and may explain matters better than I can at this time of night.
We do not think that Amendment 136, tabled by my noble friend Lord Hodgson, is necessary. Clause 75(1) and (2) say that there will be an indication under regulations of what will be involved. We will try to see that there is reasonable coherence about that so that when we come to the next stage it is understood as well as it can be. It will involve buildings such as pubs and local community facilities. I am not sure how much wider it will go, but we will ensure that it is well understood. I recognise that there has been pressure from noble Lords for greater certainty, including over definitions. We are very grateful to noble Lords who have raised this matter. My noble friends Lord Gardiner and Lord Cathcart raised the issue in connection with Amendment 136ZD.
Amendment 136ZD also combines a primary requirement that assets of community value have been or are promoting social well-being with a number of factors that local authorities must take into account as secondary considerations in arriving at final decisions on listing. These include relevant planning policies, the use that the nominator is proposing for the asset, evidence of community support for the nomination and the availability of other assets locally that could serve the same purpose. As I said, we will give this careful consideration and consult more on it. In doing so, we will have in mind the recommendation of the Delegated Powers and Regulatory Reform Committee that any regulations under Clause 75 should be subject to the affirmative procedure.
There has been a lot of criticism about the number of regulations laid out in the Bill. One reason is that consultation processes have gone on and are going on, and some regulation will come about as a result of those consultations to make this part of the Bill work.
Amendment 136ZBA proposes an ingenious way of addressing concerns that have been expressed on behalf of landowners who make land or buildings available for community use. This point was made very clearly by my noble friends Lord Moynihan and Lord Gardiner. We have had a lot of discussion about this outside the House. I will take the example of a corner of an agricultural field used for the cricket club or disused clay pits to which people have access for walking. The suggestions in Amendment 136ZBA are interesting and we will give them further consideration.
We have some sympathy also with the intention behind Amendment 136ZAB, tabled by the noble Lords, Lord Greaves and Lord Tope. Since the provisions are breaking new ground, we will need to learn from experience how they work. However, we will need to give further consideration to those as well.
Amendment 136ZAC would limit the power to decide whether an asset meets the definition to a local authority and no other body. The present thinking is that it will be only the local authority, as defined in Clause 91, which can exercise that power as the democratic authority. My noble friend Lord Jenkin asked why this was being laid down from the centre and why local authorities could not make up their own minds about who will be able to nominate an asset, what the asset will be and whether it will go on the list. The centre is laying down only the ground rules for this. It would be impossible to leave it to local authorities to decide what an asset is without giving them guidance as to what an asset of community value might be, and whether there are limitations about which they need to know. Of course it will be up to local authorities to decide whether a community that is looking at something will be able to deliver or whether it is just putting forward a sighting shot. They will be in charge of making sure that the community is not simply using a delaying tactic but putting forward something that has a reasonable expectation of being successful.
I made it clear in my opening statement that it is our intention through regulations to exclude types of land such as residential premises from the listing—that point was made by my noble friend Lord Moynihan—unless, for example, they are integral to a pub or shop. If you have a pub with residential accommodation attached to it, you will not just be able to list the pub if it also has residential accommodation that is being used. We cannot support the remaining exclusions.
Amendment 133D fundamentally misconstrues the purpose of the provision by proposing to replace land and buildings with businesses. It is wider than that. It will not just be confined to businesses as such, but we need to talk about how much wider it is going to go. It would be entirely inconsistent with the rest of the chapter and would effectively exclude most public assets from these provisions, since they would not be considered to be businesses, although they are crucial to the aims of the policy.
On the other hand, Amendment 136ZA would limit land of community value to publicly owned land, or land that a private owner agreed is of community value. This would in effect limit it only to publicly owned land, since most private owners would probably not agree to make their land subject to the rules of the scheme. An owner can, after all, voluntarily choose to delay a sale to give a community group time to prepare a bid if they want to. They can also sell it to the community if they want to. By effectively excluding private assets from the provisions, this amendment would exclude some of the key assets that we want to help communities to save, such as the last village shop or pub.
Amendments 136ZB and 136ZC make a different point. They seem to propose excluding land for which public access is already guaranteed under statute, or which is very unlikely to be put on sale but which is self-evidently of community value. In both cases, while listing would be unlikely to lead to any further action, there is no reason, we believe, for not allowing such land to be listed to provide for the unlikely event that it does come up for disposal.
We have another series of amendments, all based on the same theme that local authorities should be allowed to operate the scheme as they wish within some very broad parameters set out in the Bill. It is a question of balance. As I have said, we will be considering that further.
I am conscious of the many questions raised by noble Lords, not all of which I have answered either in my opening remarks, in my response to the amendments or by what I have said. However, I hope that I have covered enough of them to make noble Lords realise that my ears are wide open to this. We appreciate that this is a controversial area of the Bill, but we have been having discussions and will continue to do so to see that we end up not with unintended consequences in this Bill but with what we believe would be a valuable asset, which is to be able to ensure that local communities have an opportunity, if it arose, to take over buildings of community value if they can afford to do so.