Levelling-up and Regeneration Bill

Debate between Earl of Lytton and Baroness Taylor of Stevenage

Report stage
Monday 18th September 2023 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I added my name to Amendments 267 and 268 tabled by the noble Lord, Lord Stunell. I think perhaps I should also have added it to Amendment 265A which he so ably introduced. There is very little that I can add to what he has said, so I will be brief.

As the noble Lord said, this is do with reputation, the disruption of potential reorganisation, a loss of momentum—which I might call continuity—and, finally, whether this lays open the opportunity for diluting the process which we agreed in the Building Safety Act and which one believes is still important today.

There are two things that I would like to point to. Part of the justification for what the Government seek to do seems to be a need to keep their options open, if I can put it that way, in relation to the awaited second Grenfell inquiry. Of course, we do not know when that will come in, but the fear seems to be that it will make recommendations that the Government will need to move resolutely to deal with. However, to try to foretell, forestall and provide for that by the process of taking the Building Safety Regulator function out of HSE and putting it in a place as yet unknown or undefined seems entirely premature. I am with the noble Lord, Lord Stunell, in the sense that does not aid the cohesion of the Building Safety Regulator function going forward.

The second thing that concerns me is that we already have two standards for dealing with what might be described as a defect. One is specified in the Building Safety Act and the other, which is not worded the same, is the standard of remediation under the pledge that constructors will sign up to. There are concerns, in particular because, under remediation schemes to which a lot of firms have signed up, they will still be using their own approved inspectors to sign off that work. We know what has happened since approved inspectors were brought in under the Building Act 1984. It amounts to marking their own homework. While I am sure that in many instances that is being done diligently, we would not be where we are now had that been done effectively, conscientiously and objectively. There are concerns that the Government’s proposals here leave too much wiggle room. I am with the noble Lord, Lord Stunell, on all three of his amendments, which I think afford valuable safeguards that we should take real notice of.

[Baroness Taylor of Stevenage (Lab)]

My Lords, before commenting on the specific amendments in this group, I thank the noble Baroness, Lady Scott of Bybrook, for responding so thoroughly to questions that were raised on this issue following our previous debate on this subject and the debate in July on the statutory instrument on the Building Safety Act.

Amendment 264 clarifies that the functions of the new regulator are those of the Health and Safety Executive. This was one of the points on which we requested clarification. I hope the Minister can clarify in response to the points made earlier by the noble Lord, Lord Stunell, what the new regulator will look like.

My noble friend Lord Rooker’s amendments would introduce a requirement on the new regulator to report on electrical safety for tower blocks awaiting remediation. That seems a very reasonable step in the light of previous discussions, and we hope the Minister will confirm that this falls into the remit of the regulator.

My noble friend also suggested, in his further amendment to Clause 223, that a new electrical safe register be introduced and, in particular, that electrical installations and testing be subject to the same level of rigour as gas installations. I cannot think of any reason why that should not be the case. I hope that, should she not clarify it today, the Minister will take that back to her department to be discussed with the new regulator.

Concerns expressed in Amendments 265A, 267 and 268 are that provisions made under the Bill could be revoked by regulation. Amendments 265 and 266 perhaps deal partially with that, but they may not be strong enough to deal with the concerns about provisions in the Building Safety Act. We note Amendment 265A in the name of the noble Lord, Lord Stunell, relating particularly to the potential for government to use regulations to amend the provisions of the Building Safety Act. We would be seriously concerned about that, so, if the noble Lord chooses to test the opinion of the House on that topic, he will have our support.

Levelling-up and Regeneration Bill

Debate between Earl of Lytton and Baroness Taylor of Stevenage

Committee stage
Monday 24th April 2023 Lords Chamber

[Baroness Taylor of Stevenage (Lab)]

My Lords, I shall also speak to Amendments 277, 280 to 281B and 282 in the name of my noble friend Lady Hayman and in mine. I shall also make some comments in relation to Amendments 276, 278 and 279, in the name of the noble Earl, Lord Lytton, and Amendment 281C in the name of the noble and learned Lord, Lord Hope of Craighead.

The increasingly acrimonious circumstances in which planning is often discussed, debated and granted has significantly increased the burden of enforcement. This is combined with a contraction of local authority planning teams due to reductions in local authority funding, which is putting increasing burdens on the planning process, as we have already debated today in Committee. Our amendments are in recognition of that and to ensure that timescales, fines and practices are developed in a way that is proportionate to the current circumstances.

As one brief example, most local councillors will be familiar with their weekly planning list having a number of certificate of lawfulness applications—they are a particular bugbear of mine. These mean that the applicant has not applied for the appropriate permissions in advance and, having now built out their development, is only now seeking the approval of the planning authority. There is little if any appropriate sanction for this behaviour, which seems grossly unfair to all those who take the necessary steps to submit their applications properly in advance of building.

It is fair to say that such developers face the risk of the planning authority turning down their retrospective application, and there have been notable examples of authorities requiring buildings and/or alterations to be taken down. However, with the powers of enforcement diminished, both in this respect and for straightforward breaches of planning, simply by the lack of resources to deal with enforcement, the danger is that we continue to see from the worst offenders a cavalier approach taken to the planning process.

Amendments 275 and 277 in the name of my noble friend Lady Hayman of Ullock are designed to draw attention to the fact that it may be necessary to foreshorten the extended time limits for the enforcement of planning controls where there is a significant impact on the environment. We appreciate that the 10-year window is necessary for raising issues relating to planning enforcement, but it will be important that all involved in development understand that, if enforcement relates to an issue where substantial harm is being caused to the environment, planning officers will expect these to be dealt with more quickly. We hope this amendment will give them the power to do so. The amendment aims to prevent a delayed response from developers, not to limit the amount of time planning controls can be exercised over environmental matters. This should be 10 years, as for all other matters.

We have discussed previously in Committee the need for rapid digitisation of the planning process, where that has not already been done. Amendment 280 is a probing amendment to ensure that this is the case for the enforcement aspects of planning as well.

As in other parts of the Bill, we believe that new burdens may be imposed on local authorities in relation to enforcement. Amendment 281 in my name is to flag up again that there will be a need for an overall assessment of all parts of the Bill to understand the likely financial impact on local authorities. We have received previous assurances from the Minister on new burdens funding. It would be good to know that relevant professional and representative bodies will be consulted on this important issue as quickly as possible after the Bill passes into law, so that no undue financial burdens are placed on already hard-pressed local authorities.

As we have discussed in previous clauses, the financial burden of planning does not fall proportionately on the developer, which is true of enforcement too. Amendment 281A in the name of my noble friend Lady Hayman of Ullock is included to ensure that we do not inadvertently create an enforcement fine regime where it is more cost effective for the developer to breach planning rules and guidelines because the cost of non-compliance is less than the profit they are likely to make from any breach.

My Amendment 281B seeks to introduce a very important provision that would prevent developers applying for an exemption to the provisions in a planning application to deliver affordable housing in a development. We are all very familiar with the long wrangles that planning authorities are having over viability. Our concern is that, if this exemption from enforcement clause were to apply to the delivery of agreed affordable housing, it would simply be another get-out clause in the armoury for developers, with their significant legal firepower, to avoid providing much-needed affordable housing.

Clause 116 is concerned with ensuring that the planning process works as efficiently as possible and makes best use of digital technology. My Amendment 282 seeks to set the purpose of this in the Bill, so there can be no doubt that it is the intention to avoid delays wherever possible.

Amendment 276 is in the names of the noble Earls, Lord Lytton and Lord Devon. Just as our amendments recognise the importance of a shorter enforcement period for environmental issues, it recognises the importance of changes of use to a dwelling house. We agree that, where enforcement relates to somebody’s home, a shorter time period than 10 years would be preferable.

Amendment 278, in the names of the noble Earls, Lord Lytton and Lord Devon, recommends consultation with affected parties on extending the time limits for planning enforcement from four years to 10 years. We would always support such steps, as professional bodies and local government representative bodies can be essential consultees in ensuring that all consequences are understood from the outset and that any unintended consequences can be predicted and mitigated.

On Amendment 279, in the names of the noble Earls, Lord Lytton and Lord Devon, we will be interested to hear the Minister’s response on whether it is the intention for the provisions of the Bill to be retrospectively applied to developments which, under current legislation, have reached the time limit for enforcement. Is the legislation to apply only to enforcement for developments started after the commencement of the Act? Will there be a transition period, or will it automatically apply to all developments that have reached the current four-year limit?

Amendment 281C in the name of the noble and learned Lord, Lord Hope of Craighead, seeks to insert in the Bill the explanation of the purpose of Clause 113, as is contained in the Explanatory Notes. We have had a number of examples during our examination of this Bill where the absence of these explanatory clauses could potentially cause ambiguity in their interpretation. Therefore, we support this sensible move to insert the explanatory clause in the Bill. I beg to move my amendment.

[The Earl of Lytton (CB)]

My Lords, probing Amendment 276, and Amendments 278 in 279, are in my name and that of the noble Earl, Lord Devon, who is regrettably unable to be with us today. Apart from declaring an interest as a property owner, I must also explain that I have in the past been threatened with enforcement proceedings—so guilty as charged, or perhaps not guilty as charged. I am very grateful to a number of planning practitioners who explained some of the finer points of all this to me.

These amendments relate to Clause 107 and refer to what is known as the four-year rule. The current position is that, if works to a property have been undertaken more than four years previously, the owner is immune from enforcement action by the local authority. The equivalent period for changes of use, which of course may be harder to spot, is 10 years. A minimum of 10 years unchallenged enjoyment of both works and change of use is required before a lawful use certificate can be claimed. If you like, the entitlement at that stage becomes absolute.

I should add that, for works or changes of use to a listed building or, I think, for one in a conservation area, time does not run against the enforcing authority, and so protection of heritage is not an issue. Furthermore, works of development that are done secretively or by concealment are, I believe, also not protected by the four-year rule. So the building of a house within the confines of an agricultural barn, as happened in one rather infamous case, would not escape.

The system has operated for many years, quite successfully as far as I know. In the most recent review of the arrangements, the four-year cut off remained unamended. My own sense is that, if works have not been spotted after four years, it is quite unlikely that they will be spotted more readily in years five to 10. Indeed, one might conclude that, if it is that unobtrusive, it should scarcely be a planning concern anyway. It is more likely that it will crop up to ensnare an unwary owner who makes a subsequent application and some historic non-compliance is spotted at that stage.

The four-year rule also recognises that planning is complex, with many pitfalls for the unwary, and that it is not necessary or desirable to micromanage planning uses of land and buildings. For instance, erection of deer fencing, construction of ponds and the placing of certain structures on land may in some cases require consent but in others they do not. A movable item nearly always does not trigger a planning issue but leaving it in the same place for too long does.

Many households think that a permitted development right absolves them of the need for any consent at all. I believe it is government policy to reduce burdens on householders. Furthermore, where a local planning authority has issued what is known as an Article 4 direction, removing permitted development rights for certain types of development, owners may not be aware of this or be made aware, even in a purchase situation. As in one instance which occurred in my professional career, a shopkeeper might find that they are subject to enforcement procedures for displaying an internally illuminated sign fixed to the interior of their shop window glass, but not if it is a foot or two further back. The rules are opaque, convoluted and may be interpreted differentially per authority. As I see it, the four-year rule served to prevent this becoming a more serious issue.

But Clause 107 would remove this protection. I know of no justification for doing this, nor any public consultation that underpins that decision to include it in the Bill. I think that most householders, and possibly quite a few lenders, would view this with concern. But the removal would have, in my opinion, a somewhat more sinister side-effect. I know of instances whereby an annoyed builder has set out to shop a property owner who did not award him a contract of works, or shopped the successful contractor—or a neighbour averring to the authorities that works in non-compliance are taking place, either because of neighbourly detestation or, as in one case known to me, because the neighbour took umbrage about the builders’ vehicle parking and plant-unloading arrangements in the street outside their home. So to leave the door open for an additional six years to this sort of risk of a snooper’s charter is socially, economically and administratively undesirable.