War Memorial Gardens

Lord Berkeley Excerpts

Thursday 13th October 2011 Lords Chamber

Asked By

[Lord Berkeley]

To ask Her Majesty’s Government whether they will introduce legislation concerning the use of war memorial gardens for entertainment purposes.

[Earl Attlee]

My Lords, the Government have no plans to introduce legislation concerning the use of war memorial gardens for entertainment purposes. It is for local authorities to take decisions on such matters where they own the land. In doing so, we would expect them to take into account the sensitivities of the local communities involved.

[Lord Berkeley]

I am grateful to the Minister for that Answer. This Question arises from an application for two months of corporate events in Trinity Square Gardens, a memorial in the City to the many hundreds of thousands of merchant seamen who lost their lives in the major wars. As noble Lords will know, this has generated widespread disgust. I congratulate the mayor and Tower Hamlets Council on rejecting this application in the past 24 hours, but can the Minister offer an opinion on whether it is appropriate that those who caused the financial crisis, often got bailed out by the taxpayer and are still awarding themselves mouth-watering bonuses should ever be allowed to dance around memorials like this?

Localism Bill

Lord Berkeley Excerpts

Wednesday 12th October 2011 Lords Chamber

[Baroness Hamwee]

My Lords, perhaps it is a little impertinent of me to deny a compliment that has just been given by the noble Lord, Lord Howarth, to my noble friend Lord Greaves, but he congratulated my noble friend on tabulating the items, when I think my noble friend would say that he copied it out. The noble Baroness, Lady Andrews, referred to familiarity and we will all have recognised the words.

I would like to use this opportunity to ask the Minister a question. I have heard her say on a different occasion that two of the five principles are not as appropriate to planning as they are to other parts of government. These two principles are the use of sound science and the promotion of good governance. For my part, I must say that they both seem entirely appropriate. On the subject of science, let me just mention climate change and flooding. Governance, after all, is used both in the creation of local plans and in dealing with planning applications, as well as more widely. So they both seem to me to be appropriate. If that is to be a part of the Minister’s response, I hope that my noble friend can spell out why that is so. I am open-minded to hearing it, but I will be interested to hear the detail.

[Lord Berkeley]

I have some worries about the whole concept. Many noble Lords have talked about what should and should not be on this list. It is a very good list, and the noble Lord, Lord Greaves, certainly deserves a lot of credit for putting it together, if that is the right word. But there is not so much in it about development. There is lots about sustainability, which of course I love, but my slight worry is that—notwithstanding the debate going on at the moment about the presumption in favour of development, which I am sure we will talk about later—if there is to be development, it has to be done in an environmentally friendly way but must also be reasonably cost effective.

A Treasury report was produced by Infrastructure UK last year. It said that the civil engineering developments in this country are probably 60 per cent higher than they are in Germany, and goes on to say that the labour costs are much the same. The conclusion that one should probably draw from that is that the difference is to a large extent taken into account with the complexity of planning. Of course we need to have planning but, as my noble friend said just now, if we go too far down that road it will be a lawyers’ bonanza and take a very long time and nothing will get built. In the end, we are in the end going to be competing with other European and world countries about what we produce.

It is useful to have a definition. I think that we need more in it about the development side, so that is sustainable. But we must also recognise that one of the benefits of having something like this in the Bill, and possibly the national planning policy framework, is that it enables us and other people to help to hold the Government to account. Governments in the past 20 or so years, ever since John Major apparently invented the world “sustainability”, have all paid lip service to sustainability and a green environment until life got difficult. We have the 80 per cent carbon reduction target. The last Government made some attempt to go towards them, and this Government are also making some attempt, but if you look to where they have got to, in my view, many people will think, “Thank goodness that we will have retired and may even be dead by the time it comes into force in 40 years’ time—so it does not really matter”.

Yesterday the Department for Transport announced a trial of longer lorries. That is great for the environment, is it not, and great for road accidents and the quality of life? There is need for much more joined-up government right across these things, and some clauses like this would help us to hold the Government to account. I believe that we can get growth and development in a sustainable way, and this is a good contribution towards it—but possibly putting it in the national planning policy framework would be easier, and we could have a much better debate about what should be in it.

[Lord Lucas]

My Lords, I find myself very much siding with the noble Lord, Lord Howarth, on this. Sustainable development is rather like well-being; it is a concept that we think we know when we see it, and occasionally we will try to pin down what it means in definitions like the one we see before us. But actually it means different things in different times and different places, and should do so.

The development of a nuclear power station, looked at on a very local scale, is completely unsustainable, but on a national scale it may be sustainable. So scale is very important. Likewise, something which on a national scale may be an undesirable policy may be just what a village needs in order to flourish.

Again, when you set out a definition like this, even without including design or spirituality, you find that in every individual instance bits of the definition do not apply, or apply in very perverse ways. How does one apply great chunks of this definition to, say, the siting of a sewage farm? There are bits of it that do not seem to hang in there at all under those circumstances—

--- Later in debate ---

[Lord McKenzie of Luton]

Yes, I did. The point I was making was that the document came at the start of the recess and not everyone out there got that letter—and there are plenty of people out there with a very keen interest in the NPPF. We as parliamentarians may have done; others did not. If in fact the Government are happy and prepared to have these processes then let us get it enshrined in the legislation so that it can operate in the future as well. As I said, an assurance of a proper consultation and parliamentary process could have lessened those fears and potentially obviated some of those very unpleasant exchanges that took place.

The presumption in favour of sustainable development, the definitions of sustainability, the implications for the green belt and green space, the impact on housing, particularly affordable housing, and town centre policies are all matters that go to the heart of our national life. Planning is an important democratic means of mediating between different interests, in the public interest. There must surely be due process and a role for Parliament. Despite some misgivings, I understood that it worked for the national policy statements. I took it from our exchanges in Committee that the Government were not averse to this approach—indeed, if they are going to facilitate a process before Parliament, that would seem to support that conclusion. In the light of experience of the NPPF to date, I invite the Government to accept this amendment. I beg to move.

[Lord Berkeley]

My Lords, I would like to ask the Minister a simple question. Under the Planning Act 2008, the national policy statements—which I think everyone welcomed at the time—require parliamentary approval and debate. I do not think that there has been any problem with that. They require consultation and they have had it, although some of them are receiving it rather later than some of us would like to see, though I am sure that they will come eventually. It seems to me that the national planning policy framework is a sort of parallel document to the national policy statements for planning and in respect of other smaller developments which do not come within the scope of the NPSs. As the NPSs have a link to the planning legislation, it seems logical that the national planning policy framework also should have one. I welcome the consultation and the debates that we are going to have. It would, however, seem to make it a simpler and clearer structure if there was a reference in the Localism Bill to the NPPF—not what it should say or anything like that, but just a reference.

[Baroness Hanham]

My Lords, there could have been no doubt that the draft of the NPPF was coming out: we have had several discussions in this House and I made it quite clear that it was coming. It has been on the website since the day that it was published and some of the detailed comments on it bounced out almost the following day. So there has been a good opportunity for people to form their views. That is what the consultation is all about, and having got the 10,000 or so responses—indeed it may have gone up by another 2,000—by today, there will be ample opportunity to hear people’s views. I hope that this will happen in a balanced way, because some of the discussion so far has been extremely unbalanced and not at all helpful. I think that it is calming down now and proper discussions are taking place against a real background. We can move on from there.

We are going to have two opportunities to discuss this further. In reply to the question from the noble Lord, Lord Berkeley, the national planning policy framework is not an adjunct to the policy guidance statements; it is in replacement of. Somebody told me how many thousand pages the policy guidance statements run to and it was something like 1,500. They are becoming very big, very wide, and very difficult to work through to discover the actual policy. The framework is an attempt to cut those down without losing the emphasis and the position that they took.

That is the reason why the Government will be listening very carefully to what is said and what the consultation brings forward so that we do get this right. It is extremely important as it is the background to all planning decisions in the future and for the understanding of the things that we all hold precious—the heritage, the green belt and everything that makes up planning. So the consultation is real and will bring results. My honourable friend Greg Clark, who is in charge of this Bill, has already made it clear that he is very open to discussions on this.

I do not propose to worry the House much more about this. I hope that I have answered the relevant questions. If I am not careful, I will get myself in trouble—and having said that I was a nice, balanced Librarian, I do not want to do that. Having made my point about policy statements, I had better read out what this says because otherwise I will get the wrong thing in Hansard. The national planning policy framework is a very different document from national policy statements. National policy statements are the key documents for deciding on major infrastructure proposals. The national planning policy framework is used to inform the preparation of local plans. Local authorities must only “have regard to” the national planning policy framework rather than follow it specifically. I am sure that noble Lords understood that clearly, and I apologise if I misled the House on the way.

I am looking forward to the debates that we will have, particularly the one tomorrow. Perhaps I may comment briefly on the substance of Amendment 203L, to which the noble Lord, Lord McKenzie, spoke. The amendment would put in the Bill provisions about the form and content of the NPPF—I ask noble Lords to forgive me if I stop talking about “the national planning policy framework” because I am tripping over the words all the time. I have heard the arguments about the need for the NPPF to have legislative force to reflect its importance. However, there is no doubt that everybody—the public, councils and the development industry—understands the importance of the NPPF. It is unnecessary to legislate further to give it status. Existing planning Acts already require a local planning authority, when making plans, to have regard to the policies and guidance issued by the Secretary of State. That is why the NPPF is government policy. Government planning policy and guidance is also capable of being a material consideration in the decision-making.

It is clear that the NPPF will bite in the same way as the previous policy guidelines on local decisions, and in a way that is understood. Putting it into legislation would risk changing the legal status of the framework in relation to local plans. It would cut across the primacy of locally prepared development plans. That is not what any of us want. The amendment would also mean that the policies of the NPPF would have to relate to addressing climate change. We all agree that that is crucial, but it is entirely unnecessary to legislate in this manner. There already exists a climate change duty on local plan-making. Local communities preparing plans can be in no doubt about planning’s important role in climate change, and about the Government's commitment to this issue. The draft NPPF makes it crystal clear that this is the situation as regards primary legislation. We propose that planning should fully support the transition to a low-carbon economy in a changing climate, taking full account of flood risk and coastal change. There is no need to go any further than this.

The noble Lord’s amendment also requires the planning framework to be subject to a formal appraisal of sustainability—here is that word again. The argument has been made by a number of organisations and we take it seriously. However, we are clear that the framework does not trigger the requirement for a strategic environmental assessment or a sustainability appraisal. It is not a plan or programme required by legislative, regulatory or administrative provisions, as set out in the Environmental Assessment of Plans and Programmes Regulations 2004. However, alongside the draft NPPF, the Government have undertaken to publish a draft impact assessment. We have invited comments on this, and will update and publish a final impact assessment.

In conclusion, the Government are entirely willing to enter discussions with all interested parties on the content of the framework to ensure that we get it right. We do not want to deliver a document which raises doubts about what we are trying to do, or one which leaves any doubts in the minds of those who have to work with it. Its status is clear so it does not require statutory provision. I therefore hope that the noble Lord will feel willing to withdraw his amendment.

Localism Bill

Lord Berkeley Excerpts

Monday 10th October 2011 Lords Chamber

[Lord Jenkin of Roding]

My Lords, perhaps I may add to what my noble friend said. In fact, I introduced the London Local Authorities Bill which originally included a clause to provide for the licensing of pedicabs. It went through a long process of petitions that were heard. In the end, the promoter of the Bill, which at that stage was the City of London, decided that it was wiser to drop the pedicabs provision in order to get the Bill through. However, it was perfectly clear that the proposal aroused a lot of opposition. There is quite a lot of financial interest in this pedicabs business. I am talking primarily of London—I do not know about the situation outside London—but it is possible for those employed to drive pedicabs to make quite a lot of money if they are prepared to work hard, late into the night and in the small hours of the morning. The amendment is obviously not without some merit because there are members of the public who will use pedicabs in preference to hanging around for buses or going down to the Tube.

Therefore, I hope my noble friend can say something on this. There is a problem that needs to be dealt with, but perhaps not so much by amending this Bill but through a local authority private Bill. The issue should eventually be picked up by the Government and some form of regulation should be imposed.

[Lord Berkeley]

My Lords, as a cyclist in London, I have come to know the London Pedicabs Operators Association quite well. Yes, pedicabs irritate taxi drivers—and they irritate me because they are wider than my bicycle and I cannot always get past them. However, taxis, cars and white vans irritate people. At some stage, we all have to live together and hope that it all works well for the benefit of the community and for people who want to go somewhere late at night. Of course, tourists love pedicabs.

However, I agree with the noble Baroness that there is something wrong with the current situation. The noble Lord, Lord Jenkin, mentioned the private Bill debated here in, I think, 2009. My understanding is that there was a voluntary registration scheme that the pedicab association was prepared to sign, given that Westminster City Council apparently made specific undertakings in Committee to provide pedicab ranks around Westminster. That has not happened and the whole idea seems to have evaporated.

Perhaps I may move on to early this year, when a new plan came from the mayor’s office, Transport for London, the Metropolitan Police, Westminster City Council and the London Pedicabs Operators Association. They were asked to draw up a framework mechanism, documentation and software to satisfy the requirements of a formal licensing scheme that would include a partnership agreement, and to write a code of conduct—which is important—and a memorandum of understanding between those parties. However, again, nothing seems to have happened on this.

The pedicab association says that many of the issues listed in the noble Baroness’s amendment would in fact be in some of the agreements that it was setting out to achieve. The one thing that it says would be very difficult—and I agree—is to have, as suggested in the amendment, a separate agreement for each borough in and outside London. Most pedicabs operate in Westminster but I live in Camden during the week and they certainly move into Camden. Therefore, I believe that any such registration has to be London-wide and I am not sure why Transport for London is not picking this up and running with it, so to speak.

There is an issue here but I believe that licensing by TfL on a reasonable basis would work well. I know that taxi drivers do not like pedicabs because they see them taking away business, but we are not really here to preserve the monopoly of taxis in taking people around London. There is also the TfL cycle hire scheme, which seems to be doing quite well.

I believe that some of the issues that the noble Baroness lists in her amendment should be in some kind of agreement, but someone has to take that forward and I think that it should be TfL with everyone else’s agreement. However, every time there seems to be a step forward, something stops it. Perhaps, as the noble Baroness has suggested, people do not want a registration system because that would legalise pedicabs.

I think that pedicabs are here to stay. They are good fun. If they are registered, there will be some control over them, and I hope that that will get rid of those who do not comply with the regulations and that it will allow a good service to be properly enforced, with vehicles that have back red lights and front white lights, which are important. The noble Baroness makes a very good point with this amendment but it is probably not the right way to go forward at this stage.

[Lord Kennedy of Southwark]

My Lords, first, I think I should make it clear to the House that my father was a licensed London taxi driver and that both my brothers are licensed London taxi drivers. In fact, one or two noble Lords have mentioned to me that they have been picked up by them and taken home after a busy day in your Lordships’ House.

--- Later in debate ---

[Earl Attlee]

My Lords, I can understand why my noble friend Lady Gardner of Parkes has moved this amendment. She has explained the problem and other noble Lords have made sensible and balanced contributions. However, Transport for London and ultimately the mayor are responsible for pedicabs in London. The Government take the view that issues surrounding pedicabs in London should be dealt with at a local level, which this amendment would provide for. After all, this issue only really affects London. However, the mayor, Transport for London and the London local authorities are already taking the initiative to address the matter with straightforward measures that avoid the trap of overregulation. Noble Lords will be aware that Westminster City Council is currently working up a voluntary—

[Lord Berkeley]

I am sorry to interrupt the Minister but I believe that they operate in Oxford, and there is a similar problem there. But I do not know what the solution is.

[Earl Attlee]

My Lords, I skilfully avoided saying that this problem was unique to London, because I thought this issue might arise, and I might get challenged by someone like the noble Lord.

Westminster City Council is currently working up a voluntary registration scheme for pedicabs, with registration being incentivised by providing parking bays and pedicab ranks for members. Those operators and riders subscribing to the scheme will sign up to a code of practice, and the noble Lord, Lord Berkeley, has already alluded to these developments. This registration scheme would then tie in with the provisions relating to the enforcement of road traffic offences in relation to pedicabs, which are included in the London Local Authorities and Transport for London (No. 2) Bill, currently before Parliament. Effective implementation of the provisions in the Bill relies on a system of licensing or registration being in place. The relevant clause could not come into force until a registration scheme for owners and riders has been approved by the Mayor of London.

--- Later in debate ---

[Lord Jenkin of Roding]

My Lords, I raised this issue at Second Reading, as did a number of other noble Lords. I would like to join my noble friend Lord Tope in expressing gratitude to my noble friend Lord Attlee for the immense amount of work that he and his officials have done to produce this substantial body of amendments, which to my mind now make this provision acceptable. I particularly welcome his efforts to produce what probably would be called a “Keeling schedule”, showing what these clauses will look like in toto if the amendments are passed. It is rather difficult otherwise to fit them into the Bill. However, that was an immensely helpful document which I hope my noble friend’s other colleagues on the Front Bench might be persuaded to imitate from time to time. For those of us who have to grapple with these things ourselves, it can be much more helpful to know what the whole thing is going to look like, rather than just looking at a whole series of amendments. This is a very helpful precedent which I hope will be followed in the future.

I have only one question to my noble friend. It is a point that I have made on previous occasions, and it concerns retrospective operation. My noble friend has assured me that nothing in these amendments will make the powers retrospective so that a penalty may be imposed on a local authority for something that has already happened. I would be most grateful if he could give us an assurance on this when he winds up the debate.

I understand that this cannot apply to fines that have already been imposed on the Government, but you could have a directive which imposed obligations on a local authority where that local authority was previously in breach and subsequently a fine was imposed on central Government. I would welcome an assurance that under no circumstances could that fine refer to anything that has happened before the date of the process introduced by these amendments. Nothing could be done before these amendments have taken effect—they must not be retrospective or retroactive. I take encouragement from my noble friend saying that one of his principles is that there will be no surprises. That, to my mind, is immensely valuable. If he could say that that rules out any retroactive effect of these amendments, that would be very helpful indeed.

I thank my noble friend for his enormous efforts. He explained to me that he had to get the assent of every other government department in Whitehall. He is a magician to have achieved that. One understands the difficulties that he has faced and I thank him very much.

[Lord Berkeley]

My Lords, I join the noble Lords, Lord Tope and Lord Jenkin, in congratulating the Minister. I raised one or two issues in relation to this matter in Committee and I think that the noble Earl has done a fantastic job in a short space of time to come up with a process that few can fault, if one is going to have fines at all, and they do arise. I warmly congratulate him and join others in hoping that this happens more often with other legislation that comes before your Lordships’ House.

Before I speak to my own amendments, I would like to follow up on a point that the noble Lord, Lord Jenkin, made about the retrospective nature. There will be a time when these clauses come into effect, but there is also a time when the European process moves forward from infraction proceedings and reasoned opinions to the court summons and finally the court decision. That can take several years. The UK Government have a good record in complying with EU regulations. I am involved in railway issues, and in the first railway package there are 13 member states with infraction proceedings against them. We are not one of them, except for a new one relating to the Channel Tunnel. On the whole, we have quite a good record, but quite often the cause of the eventual fine could be something that was created several years beforehand. The local authority may not have been able to do something, or something may have gone wrong and it is grinding on with the Government refusing to give way, and three or four years later it gets to the European Court. I hope that the Minister will look at the retrospective nature of this not only from the UK side but also from the European side as to where the so-called potential offence has been committed and when.

My amendment was of course a probing one. I am very grateful to the Minister for his answer, which he gave before I had the chance to speak to it. That enables me to ask another question to clarify things. The Minister said that the provision would apply to a private company carrying out or performing “public functions”. I assume that “public functions” in this respect means operating rail or inland waterway infrastructure, although that could be carried out by a private company. I am not convinced that the Rail Regulator has powers to enforce fines on Network Rail—I do not think that there is a regulator for inland waterways yet—when something contravenes European regulations. I am sure that there will be an answer to this but perhaps when he responds the Minister could agree to look at this matter further so that there is some clarity within Network Rail and eventually the British Waterways charity about the circumstances under which they might be liable for a fine. I conclude by congratulating Minister very strongly on a really good piece of legislation.

[Baroness Gardner of Parkes]

I am delighted by the policy statement but I have one question that I hope the Minister will be able to answer. In relation to panel membership, I notice that the statement of policy specifies:

“The relevant representative body will put forward nominations in respect of its members”,

of persons with sectoral experience, to the Minister. What opportunities will there be for bodies such as the Greater London Authority which are not part of a representative organisation to make nominations to the Minister in respect of panel membership? I would be grateful if he could answer that question, which probably relates to Amendment 195ZAJ but I find it so difficult when I look at all those amendments to know exactly which one it relates to.

Railways: Brighton to London Line

Lord Berkeley Excerpts

Thursday 6th October 2011 Lords Chamber

Asked By

[Lord Berkeley]

To ask Her Majesty’s Government whether they will safeguard Uckfield station and the rail track of the former Uckfield to Lewes route for possible future use to provide additional capacity to the main Brighton to London line.

[Earl Attlee]

My Lords, there are no current plans to issue safeguarding directions. However, the former Uckfield to Lewes route is safeguarded by both Wealden and Lewes district councils in their local plans.

[Lord Berkeley]

My Lords, I am very grateful to the Minister for that Answer. Is he aware that East Sussex County Council has plans to build a road across the formation outside Uckfield which would, of course, completely prevent the line being reopened? Furthermore, is he aware that British Rail Property Board, which, as the House will know, is being abolished, is trying to sell off all its surplus land, which includes the land of the old Uckfield station, which, again, is essential to the reopening of this line? Will he instruct the property board not to do that and to keep this and other similar pieces of land for future reopening?

[Earl Attlee]

My Lords, the noble Lord raised two points, the first of which is the road. One of the benefits of the proposed scheme is that it allows for the building of a bridge at a later stage should that be necessary. In fact, the scheme makes it easier to open the line, should that be necessary, because to the west of the proposed road crossing is a level crossing, which would be unacceptable if you wanted to open the railway.

The noble Lord asked about the BRPB and whether we would give it directions. No, we will not. It is not necessary. We are absolutely confident that nothing has been done that will compromise the ability to open the railway at some point in the future, should it be desirable to do so.

--- Later in debate ---

[Earl Attlee]

My Lords, the Skipton to Colne route is a little far from Uckfield and Lewes. I can point to the dualling of the Swindon to Kemble line, which is very expensive but will bring many benefits. I see the Leader of Her Majesty’s Opposition nodding her head enthusiastically.

[Lord Berkeley]

My Lords, I am very grateful to the Minister for the answers that he has given to various colleagues on my original Question. Lewes-Uckfield is in Network Rail’s route utilisation strategy, which was published last year, so a lot of people in Network Rail must think that there is demand there.

The Minister said that if the Secretary of State was asked to give some assurance or make some designation on certain routes, the developers might try to claim compensation. Given the time that it takes to develop any of these new railway lines—noble Lords have given different examples—surely there is a case for looking at the policy again so that routes can be safeguarded even for 10 or 20 years. It may take that time to get a new project off the ground.

[Earl Attlee]

My Lords, we do not think that that route will need to be opened within the next 20 years.

Airports: Heathrow

Lord Berkeley Excerpts

Monday 12th September 2011 Lords Chamber

[Earl Attlee]

My noble friend makes extremely important points which were all picked up by the South East Airports Taskforce. She mentioned the UK Border Agency. We are aware of scope for improvement and UKBA is working on that. She will also be aware of other things that will be happening as a result of the South East Airports Taskforce’s work, which will improve the experience for passengers.

[Lord Berkeley]

My Lords, would it not be better if we concentrated on service quality at airports and did not go for the busiest? Is the Minister aware that Beijing is soon to have another runway, which will give it a total of 120 million passengers a year, and would it not be much better for the environment if we concentrated policy in this country on the medium and shorter-term passengers being able to travel by high-speed rail and ordinary rail?

[Earl Attlee]

My Lords, the general thrust of what the noble Lord says is very good. Interestingly, I went to Gatwick airport last week and saw the effort being put towards improving the passenger experience. No doubt I shall be going to Heathrow shortly.

Localism Bill

Lord Berkeley Excerpts

Monday 12th September 2011 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, I shall begin by speaking to government Amendment 107, which is also in the group.

The government amendment seeks to enable the greatest sharing of back-office services across the GLA group. The mayor has an ambitious shared services programme for the GLA group utilising existing powers under the Greater London Authority Act 1999, which enables the GLA and its functional bodies to share administrative, professional and technical services with each other.

We are conscious that there are several legislative gaps in the existing legislation, with a number of bodies in the GLA’s ambit not covered, potentially restricting further opportunities for savings and efficiencies. That is why, following discussions with the mayor, we introduce the new amendment as part of the London reform package to extend the powers to three further statutory entities; namely, the Commissioner for the Metropolitan Police, the London Transport Users’ Committee and the London Pensions Fund Authority.

The amendment also gives the Secretary of State the power to add other persons or bodies performing public functions in London, other than wholly national bodies, to the list of entities covered by Section 401A, following consultation with the relevant person or body. This will allow the inclusion of unique bodies such as the Lee Valley Regional Park Authority or the Museum of London, if there is an appetite in London for their inclusion. We will be discussing further the extent of any order with the GLA, the boroughs and other relevant partners over the autumn.

Finally, Amendment 104 amends Schedule 22 to classify a mayoral development corporation as a local authority for the purposes of the Local Authorities (Goods and Services) Act 1970. This will allow a mayoral development corporation to share administrative services and supply goods to local authorities on the same basis as other functional bodies, again in support of the mayor’s shared service agenda. I therefore beg to move.

[Lord Berkeley]

My Lords, this is a very interesting pair of amendments. Proposed new paragraph (d) in Amendment 107 is about the London Transport Users’ Committee, which the Minister will be aware that Amendment 108 seeks to merge more closely into the GLA. If Amendment 108 is not carried—and I will certainly oppose it if I can be in the Chamber at the time—who decides whether these administrative sharing arrangements take place? If the London Transport Users’ Committee remains as it is, who decides whether it should merge its administration? Can they resist a request to share or is it a matter of negotiation?

[Lord McKenzie of Luton]

My Lords, it seems to me that the concept of sharing back-office and administrative services is entirely reasonable and I can see the benefits that might flow from that. My noble friend raises an interesting question as to how it works and whether there is a discussion or an imposition when new bodies are brought in. I suppose I am a little surprised that there are not the general powers already available for the sharing of these functions but I support the thrust of this.

Localism Bill

Lord Berkeley Excerpts

Monday 12th September 2011 Lords Chamber

[Baroness Kramer]

Plays are not taking place on the adapted platform but it would be better to use it for a play than nothing at all. It is absolutely ridiculous.

I have two more points to make. Some people say that there must have been a lot of thought about how the franchises should be divided up and a reason for not giving far more influence over the rail franchising process to Transport for London. The rationale was, “We don’t like Ken Livingstone”. When the GLA Bill went through this House, particularly when TfL was under review, there was an attempt to minimise the London influence. We had the disastrous Tube public/private partnership, which was a key part of the structure and which ensured that Transport for London really could not manage the system as a whole.

There was very little appreciation of the benefits of integration. That is one of the other pieces, if you like, which came out of much of that kind of thinking. We have all moved beyond that and recognise the benefits of integration and the benefits of regional management. I argue that at this time, when the transport infrastructure in this area is desperately overstretched, when we really are in a situation of economic recovery in some areas of London and you practically have to strap people to the roofs of transport carriages, we need to maximise the use of that infrastructure. Therefore, the logic is to change the franchising responsibility, which is what this amendment attempts to do.

[Lord Berkeley]

This is an interesting amendment. I was particularly seized of the way in which the noble Baroness, Lady Kramer, proposed it because, following the previous amendment and the discussion about London Travel Watch—I am sorry that I was not in the Chamber at that time—I was sent a map of the extent of London Travel Watch, which goes well beyond the GLA boundary in many areas. I do not think it goes all the way out to Banbury but it goes quite a long way in that direction; it also goes a long way west and a long way south. It made me think that if this amendment were accepted, one would end up with the same kind of problem. On the main network, not many trains terminate within the GLA boundary. I believe Croydon must be near the edge—I am no expert on Croydon but perhaps some of my noble friends could confirm that—but I do not think that any services that go through East Croydon terminate there. So there will be a debate between those who want long-distance services as frequently as possible, stopping as infrequently as possible, between Croydon and the centre of London, for example, and those who live within the GLA boundary who want a regular stopping service.

The other problem, which is particularly evident on the lines south of London, is that in many places you can get to two or three different London termini by train. It is a lovely service if it works—it usually does—but it is a very complex network. It compares strongly with the Underground lines which, on the whole—apart from the Northern line—may serve two destinations at each end, but not three or four. I can see a time when Transport for London might say that it would like to rationalise the services south of London, for example, by making them more frequent, but going to fewer destinations, and having cross-platform interchange in some places, because it thought that would be better for its electorate.

I mentioned the question of through-services and the debate regarding them and the shorter-term. There is also the question of access for freight—I declare an interest as chairman of the Rail Freight Group—although there is not much freight south of the Thames, so we can probably forget about that. However, I also recall a big debate during the many Crossrail debates, because when TfL thought it was in charge of Crossrail and the Great Western, it started off on the basis that it would have the sole use of the slow lines, to Maidenhead or Reading, and all the other trains could have the fast lines. TfL thought that was a brilliant idea, because it would run a very frequent service—there would probably be those lines of heavy cables that you see between London Underground lines—but it completely forgot that those lines are run as a network of four tracks. If anything goes wrong on one track, the trains are immediately switched to the other ones to keep the service going. I did a calculation at the time, which indicated that if Crossrail had got its way the passenger operators would have had to cut their service frequency to places such as Cardiff, Oxford and Bristol by at least 50 per cent, if not more. Only half the freight trains would have gone up that line, and when one of the lines was dug up, they would just have to stop.

That is the logical consequence of splitting responsibilities. There is work to be done with TfL and the Department for Transport to take into account the needs of people who live within the GLA area and then we can have a big debate on how the available capacity is shared out between the department’s view, which is, one hopes, long-distance, and TfL’s, which has a local view. As for giving the train operators—all 10 of them, as the noble Baroness said—more responsibility, I think that is a bit dangerous when so much co-ordination is needed. It is a debate that we need to have. I am not sure whether this is the right amendment, but I think it is very useful to be having this discussion.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I rise to speak to our Amendment 112 and comment on the government amendments in this group.

I welcome the Government’s amendments and I am grateful to the noble Baroness for her comments. I appreciate that it caused some confusion when I first raised this. As the noble Baroness generously said, when she first wrote to me, her officials and government Ministers had understood that the legislation as drafted would not allow for charging. It was completely inadvertent, as she said, and they had not appreciated that a consequence of the Government’s proposals to expand and increase charges would lead to community fire safety being charged for. Indeed, she wrote to me to that effect. I thank her because, when it was recognised that our concerns on this were justified, she raised the matter in the House and immediately wrote to me as well to clarify the position and agreed to bring forward government amendments to correct the error. I am grateful to her for doing that.

I have to say to her that this is a fairly large Bill, about 500 pages long. It is very detailed and quite technical in parts, and some of the discussions we have had have sometimes seemed quite complex. We have concerns that some parts of this Bill may have been rushed through to the House before they were fully and properly drafted. It is to the great credit of the noble Baroness that she has been ready to engage and debate on these issues, and at times has been prepared to concede and bring forward amendments to try to improve this legislation. So I am grateful to her for the amendments she has brought forward today, in so far as they go.

I am sorry to raise the matter in this way, but I am looking at the difference between the amendment in my name and the amendment from the Government, which refers to Section 6(2)(b) of the 2004 Act. Our Amendment 112 would not allow charging for community safety or fire prevention work, whereas the government amendment refers to Section 6(2)(b) of the 2004 Act, which is purely about the fire safety work that a fire authority must undertake as part of its core functions. I entirely agree that that is right and proper in so far as it goes. The last Government recognised that fire safety should be a core function, and therefore placed a duty on fire authorities to undertake fire safety. No fire authority should be allowed to charge for that core function, as the noble Baroness rightly agrees. Where I think there is a grey area—and some clarification on this would be helpful, as this is another unintended consequence—is that many fire authorities have extended this work to the related, but slightly wider, community safety remit.

I have some particular examples of this work, which I am sure the noble Baroness would never want to see lost to the community. For example, my authority in Essex runs a number of courses for young people, such as one called “Firebreak” and another called “Young Firefighters”, and there are similar schemes in other authorities. They do promote fire safety—there are clearly benefits for fire safety—but there are much wider benefits to the individuals taking part and to the community. In Basildon, Essex fire service uses these projects, working with local authorities, councils and other bodies, as part of a team tackling crime and disorder. The fire service is part of the crime and disorder reduction partnerships, and it is very proud of this work. I looked at its website earlier today for examples. It seems to me—the noble Baroness can assure me on this—that from the wording that is taken from the 2006 Act this does not exactly fall under fire safety.

For example, there is a page on the Essex County Fire and Rescue Service website about Darren, 18, of Ashingdon Road in Hawkwell. He has just joined the crew of his local fire station as the newest recruit, and he said:

“It was Firebreak which really showed me what I wanted to do with life and how I could do it. I had got into the wrong crowd and was getting in trouble with the police and then bringing that trouble with me into school and getting into worse trouble”.

His head teacher referred Darren to the “Firebreak” course—it is a long quote but I will read it—and, as Darren says,

“When I got back to school I ditched my mates and really buckled down. Almost straight away I saw my grades improving and my predicted exam results shot up. Firebreak made me realise that there is more to life than getting in trouble and mucking about and gave me something to work towards”.

That is not technically fire safety, but the benefits to the community are enormous. Another person mentioned is Craig, who is 20 and attended this course in 2005. He says:

“I was taking drugs, drinking and stealing cars. Basically I was completely off the rails. Firebreak has changed my life, I no longer drink or take drugs and am now working to become a firefighter myself”.

The Cheshire fire service signs up to missdorothy.com. I do not know whether the noble Baroness is aware of missdorothy.com. When I was Fire Minister I went to see some of the work that it is doing, which is about community safety for younger children. Given the trust placed in firefighters, and their very respected position in the community, they were engaging very young children in community safety. Part of that was about fire safety and being safe, but also about being safe in their broader lives. The Cheshire fire service is also one of the employers involved with the Prince’s Trust programme. I certainly think that nobody in your Lordships’ House would want to lose the fire service’s involvement with the Prince’s Trust. There is a 12-week personal development course, and the fire service is one of the employers doing that.

Devon and Somerset is another authority that has a personal development scheme, also called “Firebreak”, for key stage 4 pupils from 14 to 16. Its website says that it provides a

“themed educational diet designed to complement and enhance the school curriculum. It aims to raise achievement, improve self motivation, increase educational engagement”,

and aims to develop,

“practical skills, life skills, communication skills, team work”.

Looking around the country, I see that Suffolk authority is another one to engage actively with children and young people. One of its objectives is to prevent and reduce fire crime and fire, but it also wants to engage young people, and has professional staff working with the authority, to identify good practice in working with children and young people. East Sussex has a “LIFE” project and Chester has a “Respect” project.

All of those have proven successes in deterring young people not only from a life of crime but from social disorder as well. My fear is, if it was the Government’s intention, which I suggest it probably was not, that these should be charged for—and I think that, under the Government’s amendments, they would be able to be charged for—then those very young people who can benefit most from these courses would not be able to do so.

Another issue is that, if these courses were chargeable, who would pay? In many cases it would be another public authority. What we would be doing is introducing a bureaucracy to move money around the system. So it would be helpful if the Minister, perhaps not today, could reflect on the advice she was initially given that this would not be covered by fire safety. Perhaps there may be some kind of guidance that could be issued. I think that this is the kind of work that so many people in the community benefit from.

In my own authority, at Basildon fire station, Martin Trevillion leads the community safety programme, and it is an exceptional programme. Having spoken to so many young people that have benefitted from it, I would be reluctant for us to lose that programme simply through inadvertent drafting of legislation.

Finally, I want to raise one other issue, which is that of carbon monoxide safety and awareness. I am also not clear that Section 6(2)(b) of the 2004 Act, which talks about advice on how to prevent fires and on means of escape from buildings, would cover carbon monoxide safety. This is a particular issue: there have been a number of deaths and serious injuries due to carbon monoxide, and it is something that fire authorities are able to take on and work with, and I know that some of them already do so. I would not think that the noble Baroness intended that that should be charged for as well.

When at Second Reading I first raised the issue of charging for community safety, it was clear that the Government had not thought about the implications, quite inadvertently, and this had slipped through. The Minister was able to respond to those concerns very positively. I hope she understands that my raising these tonight is in exactly the same tone, as this is a service provided by the fire authorities, working with their community, which we really would be very loath to lose, if they had to charge for it. I ask the Minister—I think she has had time to reflect, or to receive enlightenment on this issue quite soon—even if she cannot give me a full answer today, to reflect on that so some guidance can be issued, because this resource that is provided by our fire and rescue services is very valuable for the community.

[Lord Berkeley]

My Lords, I would like to support what my noble friend has said about the problem of charging for fire advice. When I read the second part of Amendment 113—proposed new subsection (5B)—I thought, “Well, any fire authority that is able to charge will probably do so”. Is it really the Government’s intention that small businesses, and particularly charities like the Scouts and others that are not for profit, should have to pay for such advice? My experience with such businesses is that it is very hard to start up anyway. I believe that you have to get fire advice in many cases. Having to pay will make life even more difficult. I can understand why the Government want to allow fire authorities to make such charges but to do that for non-profit organisations seems to be a little hard. Perhaps the Minister could reflect on that and consider whether it could be omitted for charities and non-profit organisations.

--- Later in debate ---

[Earl Attlee]

My Lords, in moving Amendment 119A, I shall also speak to Amendments 119B, 119D, 119DA and 119BA, in the name of the noble Lord, Lord McKenzie of Luton. The amendments will allow integrated transport authorities and their executive bodies, passenger transport executives, to properly undertake activities that benefit or contribute to their purposes. The enabling power goes beyond the existing incidental powers and can extend outside their geographical boundaries and immediate hinterland. These bodies are not local authorities and will therefore not have the benefit of the general power of competence that is already contained in the Bill.

The matter was debated in another place and in this House on 20 June. In response to an amendment tabled by the noble Lord, Lord McKenzie, the Secretary of State for Transport sought agreement to include suitable provisions in the Localism Bill, and this was given. The amendment provides an appropriate broader general power for integrated transport authorities and their passenger transport executives. For consistency, the power will also be provided to combined authorities and economic prosperity boards.

The main reason why these bodies need such a power is that local authorities using similar powers to the ITA’s existing incidental and well-being powers have been the subject of successful legal challenge. Integrated transport authorities and their passenger transport executives have therefore been unwilling to undertake activities and enterprises that are not expressly prescribed in law. The view that they could be successfully challenged has been supported by legal opinion obtained by the Passenger Transport Executives Group. An example provided by PTEG of the activities that they are seeking to use the new powers for is the provision of back-office functions for transport smart cards, similar to Oyster cards in London, to local authorities not in an ITA area or in another integrated transport authority area. Because providing and charging for such an activity is not expressly permitted by existing legislation, they fear legal challenge.

The potential benefits of integrated transport authorities being able to let their passenger transport executives undertake such operations for others is that they will be able to realise the economies of scale from providing similar services to a number of bodies. The bodies wishing to use these services will also benefit from obtaining the service more cost-effectively from an organisation that is already doing something very similar. The cost savings realised by both provider and client can be passed on to council tax payers. In the case of the service provider, this will be the metropolitan district councils in the area concerned. In the case of the client organisations, this will be either local authorities outside an ITA area or the metropolitan district councils within another ITA area.

The suggested amendment to government Amendment 119B in the name of the noble Lord, Lord McKenzie of Luton, is unnecessary because we are satisfied that where it serves some purpose in relation to a body’s function, collective action is already covered in the drafting of the new broader general power to be found in proposed new Clause 102B(1). Noble Lords will be aware that the parliamentary draftsmen undertake their work with great care. We are at one with what powers we want to grant and we should trust the parliamentary draftsmen to get it right on our behalf.

On government Amendment 119D, I have just explained to your Lordships our argument for providing integrated transport authorities and PTEs with wider general powers. This amendment seeks to do the same for combined authorities and economic prosperity boards, which are intended to provide stable governance mechanisms for long-term strategic decision-making on economic issues. In bringing groups of relevant authorities together, both are expected to be based upon meaningful economic geography. Where a combined authority is established for an area, it will be responsible for the transport functions in place of an ITA as well as having economic development and regeneration powers. Currently, one combined authority has been established in Greater Manchester. Economic prosperity boards are similar to combined authorities but without the transport functions. There are presently no economic prosperity boards.

Given that broader powers are being given to integrated transport authorities, it is essential that these powers are also made available to combined authorities and economic prosperity boards to ensure that they can effectively discharge their economic objectives. Indeed, given the close interrelationship between economic development and transport, it would be unreasonable not to confer these broader powers upon both bodies and would undermine their ability to deliver sustainable economic growth. I beg to move.

[Lord Berkeley]

My Lords, this is an interesting group of amendments. The Minister explained their purpose very well, but it seems to me that the pendulum is swinging from local authorities, PTEs and ITAs et cetera getting a bit frightened of what they are allowed to do to something that is beginning to look like a Henry VIII clause in the transport field. That is probably quite a good thing, actually. It seems that they are going to be given powers to do anything. Perhaps the noble Earl could explain whether this could include, in respect of the integrated transport authorities or the passenger transport executives, things such as operating rail franchises if they felt like it. Could they take a bigger role in sponsoring and deciding how the franchises were run, and what would be the extent of their financial commitment to it?

Could those authorities go as far as was recently planned in Merseyside: for Merseytravel to run a vertically integrated railway and take over the infrastructure from Network Rail? It was interesting that that authority had been lobbying to do this for at least five years, if not 10, but then just as the McNulty report, which might have encouraged them to do it, came out it decided that it was not going to do it because it was too risky. However, it is an interesting option that may be open to other authorities. What will they do in running trams and operating buses? The prospect of even better integration between different types of services would be good, if it happened.

Localism Bill

Lord Berkeley Excerpts

Wednesday 20th July 2011 Lords Chamber

Amendment 167 not moved.

[Lord Berkeley]

My Lords, with the leave of the House, I would like to speak to Amendments 168 and 169.

[Lord Jenkin of Roding]

My Lords, the noble Lord is perfectly entitled to speak to an amendment that has not been moved because, as the clerks will tell one, an amendment belongs to the House. I have to say, though, that it is totally contrary to the spirit and conventions of this House that someone should seek to speak to an amendment that has not been moved. We cannot stop the noble Lord, but I hope that he will do so extremely briefly. I have a number of other amendments in exactly the same situation, and I do not intend to say anything about them at all.

--- Later in debate ---

Moved by

[Lord Berkeley]

168: After Clause 124, insert the following new Clause—
“Planning permission for subterranean development
After section 75 of the Town and Country Planning Act 1990, insert—“75A Planning permission for subterranean development
(1) Any proposed development which extends below the ground level of an existing property shall be deemed to be “a subterranean development” and any person seeking to undertake a subterranean development must—
(a) commission a “Subterranean Impact Study” by consultants approved by the Department for Environment, Food and Rural Affairs on the impact of the proposed subterranean development upon—(i) subterranean ground conditions with particular reference to flowing and standing water; and(ii) foundations, footings and structure of any adjacent buildings and other buildings within a radius of 100 metres of the proposed development;(b) provide owners of any adjacent properties and of properties within a radius of 100 metres with a copy of the Subterranean Impact Study and enter into consultation with the respective owners during a period of not less than 90 days;(c) submit a copy of the Subterranean Impact Study to the relevant planning authority, together with the results of the consultation with relevant adjacent and nearby property owners, before submitting any application for full planning approval for the proposed subterranean development from the relevant planning authority;(d) seek the approval of the Secretary of State for the proposed subterranean development;(e) provide an appropriate warranty or bond and security for expenses to a value to be determined by a specialist advisor.””

[Lord Berkeley]

I wish to move Amendment 168 very briefly and to speak to Amendment 169. As the noble Baroness, Lady Gardner, said, the amendments have not already been debated, in spite of what it says on the groupings list. Amendments 170CA, 170CB and 170CE are not on the groupings list and they have not been debated either, so I hope that they will be debated at some stage.

All I was going to say in moving the amendment—in fact, I was hoping to speak to it after another noble Lord had moved it—was that I supported it. I was also going to ask the Minister whether and how it would apply to underground workings such as cracking. Cracking is the extraction of gas from underneath the ground: one drills many thousands of feet underground and pumps in high pressure water and gas is then extracted. This is a common occurrence in the United States at the moment. A lot of gas is extracted but a lot of houses are subsiding and being damaged as a result. I believe that the same process is being planned or has started in the Blackpool area. I am looking for information from the Minister on that as well. Whether I get it now or whether he writes to me, I do not really mind. I beg to move.

[Lord Selsdon]

My Lords, as it is my amendment and the noble Lord, Lord Berkeley, is, I believe, a former member or director of the piggy-back club, I assume that he is piggy-backing. My amendment is too big to be discussed here. I consulted my party and it has very kindly given me leave to introduce a Private Member’s Bill which will cover all these areas. I would much appreciate it if the noble Lord, Lord Berkeley, would co-operate with me. I should declare that I have lots of underground interests too.

[Lord Berkeley]

I am grateful for that remark and I look forward to further discussions with the noble Lord.

[Lord McKenzie of Luton]

I think it is a bit unfair to suggest that the noble Lord, Lord Berkeley, was going to weary the Committee. I say to noble Lords that if the issue is a big one and they have other routes for having a debate, why put down an amendment? When amendments go down, we all spend time trying to get our minds around what the issues are so that we can respond. It wastes our time as well.

[Baroness Hanham]

My Lords, just about everything that could be said has been said on this matter. The noble Lord, Lord Berkeley, asked about gas extraction. I will have a letter written to him before the next stage so that he knows the situation.

[Lord Berkeley]

I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment 168 withdrawn.

--- Later in debate ---

Moved by

[Lord Berkeley]

170CG: After Clause 124, insert the following new Clause—
“Matters to which local authorities must have regard
(1) When considering planning applications for, in particular, warehouses, distribution sites, ports, airports and airfields, local authorities must have regard to the impact on—
(a) businesses,(b) leisure facilities,(c) the provision of emergency services,(d) the environment, and(e) the local economy.(2) When considering planning applications which are expected to result in a significant increase in the use of local transport infrastructure, local authorities must have regard to—
(a) achieving the minimum disruption to local transport infrastructure,(b) achieving efficient freight access to businesses,(c) encouraging the use of sustainable transport,(d) ensuring pedestrians, disabled people and cyclists are appropriately provided for, and(e) possible alterations to the infrastructure to make use of future low-carbon transport.(3) Local authorities must adopt planning policies to protect transport routes which may reasonably be believed to have a role in providing low-carbon transport in the future.”

[Lord Berkeley]

My Lords, in general planning terms, this amendment seeks to establish how larger developments, which we discussed yesterday, fit into the local planning framework. Quite often, with big developments—ports, airfields, airports, warehouses, distribution centres or whatever, or even energy projects, that we have discussed at length—there are problems with the local facilities getting overloaded. It is very important that there is a link between the way that these big projects get permissions and what happens around them locally, which may or may not be subject to Section 106 agreements or other agreements.

Looking particularly at subsection (2) of this amendment, one can envisage a significant increase in the use of local transport and heavy goods vehicle transport. Therefore, it seems important to encourage sustainable transport here and also not to forget the needs of pedestrians, cyclists and disabled people and generally to encourage the use of low-carbon transport. It may be seen as an amendment to introduce something we have talked about before—general sustainable development. I hope that it is more than motherhood and apple pie and that the Minister, in responding, may say that it will all be in the national planning policy framework, which is now imminent, I believe. I will look on the website when I leave here and see if it is. It would be good to hear from the Minister whether these kinds of issues will be in the NPPF, or, if not, whether the Government look with favour on amendments such as this. I beg to move.

[Baroness Hanham]

My Lords, the noble Lord has introduced an interesting amendment which rustles between two responsibilities. If this were a very big application, such as those in the first part of the amendment—sites, ports, airfields—that would not be the responsibility of local authorities, that would be for the new planning inspectorates or commission. On the other applications, I think that that would happen already—it is all part and parcel of our planning considerations—and while we understand the concern about balancing the transport system in favour of sustainable transport, which the noble Lord mentioned, he should understand that is only part of what is included.

Many of these areas are already taken into account—I am trying to go back to my own limited experience from years ago—and most are things that the planning committee would be interested in, while the bigger applications will be dealt with by other means, although local authorities will, of course, be able to comment on them as they go along. I hope the noble Lord will withdraw his amendment.

[Lord Berkeley]

I am very grateful to the Minister for that response. She is absolutely right that on big projects, these things should be taken into account in the whole, but I still have a concern about something falling between two stools, if that is the right analogy. Perhaps I can have a discussion with her between now and Report, or read Hansard. In the mean time, I beg leave to withdraw the amendment.

Amendment 170CG withdrawn.

Localism Bill

Lord Berkeley Excerpts

Thursday 14th July 2011 Lords Chamber

[Lord Jenkin of Roding]

In moving this amendment, I wish to discuss the other two with which it is grouped. I tabled these amendments before we had the debate last Tuesday in which we discussed the application of the community infrastructure levy. Anxieties had already been aroused with regard to the original purpose of the levy being altered. My noble friend Lord Attlee spelt out that purpose very correctly. It is meant to support infrastructure development and be paid by the developer of a facility such as housing or industry. My noble friend Lord Greaves had moved an amendment which would widen the permitted use of the levy receipts beyond infrastructure matters that support the development of the area. My noble friend Lord Attlee said:

“We want to reflect on whether continuing to limit spending solely to providing infrastructure restricts local authorities’ ability to support and enable development of the area”.—[Official Report, 12/7/11; col. 707.]

He went on to say:

“We want to reflect on the amendments proposed by my noble friends Lord Greaves and Lord Tope to allow the spending of the levy on matters other than infrastructure”.—[Official Report, 12/7/11; cols. 709.]

These words have aroused considerable anxiety. I have a copy of a letter written yesterday by the Institution of Civil Engineers to the Secretary of State. The letter was copied to my right honourable friend Greg Clark and my noble friend Lord Attlee. The institution’s chairman wrote:

“I am writing to highlight concerns regarding the Government’s undertaking to reflect on allowing the use of the Community Infrastructure Levy on matters other than infrastructure. The Levy was specifically conceived and justified to provide for new and upgraded infrastructure—a point reinforced by the Government many times”.

Indeed, they did so most recently last Tuesday through my noble friend Lord Attlee.

The purpose of these three amendments is to try to get clarification on three specific issues. First, Amendment 148ZZBBBA seeks to ensure that the application of CIL is confined to the provision and maintenance of an infrastructure project which is in an approved charging schedule, on the ground that that fulfils the original purpose of the introduction of the CIL. The institution believes—I accept the case that was made on Tuesday and is in the Bill—that this should include what is called in the Bill “ongoing expenditure”, which I understand to mean the maintenance of an approved infrastructure project financed by CIL. I hope that my noble friend can give me a very clear undertaking that there is no question of this levy being used simply to fill a revenue hole in a local authority’s budget. It has to be confined to the provision and maintenance of an infrastructure project.

My second point has been touched on but I would like to be given a much needed assurance. There are plenty of examples of where developers have agreed to make a contribution under Section 106 of the Town and Country Planning Act 1990. If a developer has made such an agreement—sometimes it can last for a number of years—he should not be charged the CIL in addition. I hope that my noble friend can give me a clear undertaking on that. It was briefly discussed, and if we had not risen when we did on Tuesday, I would have intervened, because I was expecting to move the amendment on Tuesday night. I said, “Let’s wait until I am speaking”.

My third point concerns the suggestion of compensating communities by allowing CIL receipts to be passed to other persons. I do not quarrel with that—although I know that some object—but it must be spent on infrastructure projects. It must not be allowed to be a financial recompense paid to a community because it has development in its area. I hope that my noble friend can give me a clear assurance on that.

My final point is that the area must not be too tightly defined. There is anxiety that that may be the effect of the Bill. For instance, if the money has to be spent in the area, how will that fund a bypass which may be necessary as a result of the development, or flood defences, which may have to happen well outside the area but are clearly for its benefit?

I have asked a number of questions, and I do not think that I need to go on longer. Those are seen as serious issues by those concerned with re-establishing our infrastructure in this country. I took part in the original debate on the CIL when the 2008 Bill was going through the House. Indeed, I tried to ensure that both Houses would be able to approve the delegated legislation under it. I carried that in this House, but it was turned down by the then Leader of the House in another place. I have a considerable interest in making sure that we get this right. I beg to move.

[Lord Berkeley]

My Lords, I am very pleased to support the noble Lord, Lord Jenkin of Roding, on this group of amendments. He has articulated very well the problems which the CIL could cause developers. It is particularly important for bigger projects, which might be taken through a hybrid Bill process, through the IPC or the Transport and Works Act, where the decisions are effectively made by Ministers. Ministers will approve—or not—a deal which ends up as a Section 106 agreement. The worry is that, completely separately, the local authority might want to put a CIL charge on the project. One must think of the effect on business confidence when considering ports, airports, logistics centres, railways, roads, power stations or anything else of that size, and of the figures involved.

The people who run Gatwick Airport have told us that they are committed under a Section 106 agreement to contribute about £1 million annually to public transport via a levy on their car park revenues. If they had also been required to pay a CIL to the local authority—probably retrospectively, because it may well have happened after the Section 106 agreement was signed—they would not know what liability they would be stung for, frankly. To give two bigger examples, Hutchison Ports had a Section 106 agreement to extend the ports at both Felixstowe and Bathside Bay. It was committed under the agreement to spend about £100 million on upgrading the railway line to Leeds. We can question why it should be Leeds, but that is what was agreed. I think that the London Gateway port project, downstream on the Thames, had to contribute a similar amount for road improvements between there and the M25. If, having signed up to all that, they are suddenly stung for a CIL, it will put off developers from going ahead with these projects. It is after all the Government’s wish to develop new projects—I return again to the Secretary of State for Transport’s plan to build a high-speed railway line to Birmingham and beyond. You can imagine that people in villages along the route who do not like the plan, having had their referendum to vote against it, will then try to sting the promoters, whoever they may be, for a CIL. It could get quite interesting. It will put off business and I hope that when the Minister responds he can strengthen the assurance that was given in another place that a CIL will not be levied on projects for which a Section 106 agreement has been entered into and agreed.

--- Later in debate ---

[Earl Attlee]

My Lords, Amendment 148ZZBBBA, moved by my noble friend Lord Jenkin of Roding, seeks to limit spending on the ongoing costs of providing infrastructure to those items that were originally funded by the levy. New developments may create additional demands on existing infrastructure as well as demands for new infrastructure. The amendment would prevent local authorities from using levy receipts to address the intensification of demand on existing infrastructure, despite the fact that this could be exactly what is needed to support a new development.

My noble friend’s Amendment 148ZZC seeks an exemption from the levy for any development that makes a contribution to existing infrastructure through Section 106 planning obligations. This is not appropriate as the two instruments are concerned with different aspects of development. Through the levy, most new development would contribute towards the cost of meeting the cumulative demands that development of an area places on infrastructure. Conversely, planning obligations are concerned only with the site-specific matters necessary to make a particular development acceptable in planning terms.

Local infrastructure may or may not be part of the planning obligation. Where it is any part of a planning obligation, it must satisfy the statutory tests that ensure that they are necessary to make the development acceptable, are directly related to the development and are fairly related in scale and kind. We do not believe that it is appropriate to exempt development that is subject to a planning obligation from making a contribution to the more general infrastructure demands that it places on the area. In addition, the existing legislation already prevents developers being charged twice for the same item of infrastructure through both instruments. That answers the concern of the noble Lord, Lord Berkeley. I will check to make sure that it also answers the concern of the noble Lord, Lord McKenzie. I am not absolutely certain that it does, but I will check, and I am sure we will return to this at a later stage.

[Lord Berkeley]

The port down the Thames—London Gateway—committed probably £100 million to upgrade the junctions on the roads and the motorway leading to the M25 to cope with additional traffic reported to be coming from its development. I understood the Minister to say that that is exactly what the CIL might be required to do. I see that as double taxation.

[Earl Attlee]

My Lords, I think that I will come to a point later in my speech that should deal with the noble Lord’s concerns.

My noble friend Lord Jenkin also proposes Amendment 148ZZD, the effect of which would be that where regulations require the charging authority to pass funds to another body, it would retain ultimate control over how those resources are used by confining spending to matters it determines appropriate.

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I have seen today the letter that my noble friend Lord Jenkin referred to. We are considering it carefully. I have no doubt that my noble friend will return to this matter on Report. By that time we will have considered the letter and these matters further, and of course I look forward to further debate. In the mean time, I hope that my noble friend is willing to withdraw his amendments.

[Lord Berkeley]

The noble Lord, Lord Greaves, suggested that Section 106 might be being phased out. Is that correct?

[Earl Attlee]

No.

Localism Bill

Lord Berkeley Excerpts

Tuesday 12th July 2011 Lords Chamber

It may assist the noble Lord in considering this issue to know that there is very widespread support from all quarters for both amendments. I shall not read the entire list—that might tempt his patience with me—but it includes organisations such as the Campaign for National Parks, the Council for British Archaeology, the Environmental Law Foundation, the Royal Town Planning Institute, the RSPB, the Town and Country Planning Association and many other wildlife and environmental groups. It may also be of assistance if I point out that Birmingham City Council, which is, at the moment, a Tory and Liberal Democrat controlled council, and the London Borough of Sutton, which is a Liberal Democrat Council, both support these amendments. I hope that on that basis the noble Lord will be able to accept them.

[Lord Berkeley]

My Lords, I support these amendments. In some ways they are no-brainers: it is so obvious that they need to be there to close the gap that my noble friend mentioned.

Proposed new subsection (1A)(b) in subsection (2) of the amendment covers flooding risk, which gets greater all the time. However, many local authorities, sadly, do not take that into account when they allow new developments. Going back 20 years, there was an amazing story in Cornwall where someone wanted to develop a site near the beach in St Austell Bay. The developer produced the plans and everything went fine but the local people said, “The sea will overtop it”—many tens of millions of pounds had been spent on this development by then—but the developer said no and the council said nothing. A week later the sea did overtop it and flooded a large area. It was a high tide, which happens every now and then. Five years on, planning permission was finally obtained for this enormous development but with a very much higher sea wall. The amount of money and time wasted by people not taking into account the risks of climate change are tremendous.

I remind the Committee that proposed new subsection (1A) means including policies to encourage walking, cycling, public transport and much less use of the car; and the location of schools, hospitals and other such places where there is so often a consolidation which means that people have to travel much further to use them through no fault of their own. These issues never seem to come into the assessment. I hope that when the Minister responds he will support the amendment or come back with one in his own words if he thinks it is defective in its drafting, which I have heard him suggest before.

[Lord Boyd of Duncansby]

This is the first time that I have spoken in this stage of the Bill so I declare an interest as a solicitor in private practice, mostly in Scotland but also to some extent in England. I want to make two quick points. First, the Climate Change Act establishes legally binding objectives and targets for the reduction of carbon emissions by 2050. The development plan is the way in which the built environment is shaped for the future. It is really important that we ensure a seamless see-through in meeting these targets. The development plan is an important element of that.

Secondly, the national policy statements on nationally significant infrastructure projects all have within them considerable sections targeted at climate change. The Government are to be congratulated on taking forward those national policy statements in that way. There is an argument that, if the national policy statements make such a priority of ensuring that developments meet the carbon target, surely the development plan fulfils a similar function.

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[Lord Taylor of Holbeach]

I think I gave the noble Lord the answer to this when I said that the presumption would be that the planning should be in accordance with the NPPF and any other material considerations. Outside that, the presumption must be that approval is given, so there is an incentive for local authorities to get these plans in place.

[Lord Berkeley]

Could the Minister clarify that? Is there not going to be a sort of bonanza before the LDP is finally approved? Before that, all the applicants will have to do is comply with the NPPF, which must be a very high-level document. Will there not be a flood of planning applications that, as the Minister said, the local authority will probably have to approve?

[Lord Taylor of Holbeach]

My Lords, there is an incentive for local authorities to get these plans in place—I think I have made that point throughout our discussions on these amendments—and all other material considerations have to be met, so it does not happen totally in the void. Local authorities must have regard to their own circumstances when taking other matters into account, which is all the more reason for them to be working on these plans at the present time.

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[Earl Attlee]

My Lords, the purpose of the CIL is for owners or developers of land to contribute to the cost of providing infrastructure that supports the development of the area. Almost all development has some impact on the need for infrastructure, or benefits from it. It is fair that such development pays a share of the cost of providing that infrastructure. In setting a charge, local authorities must have regard to the actual and expected costs of infrastructure and its other sources of funding. They must also have regard to the economic viability of development, which includes the need to deliver affordable housing.

The noble Lord, Lord McKenzie of Luton, proposes amendments to provide that affordable housing provision will not be prejudiced by any levy charges that an authority may set. As we explained in the other place and to the National Housing Federation, the existing legislation already provides appropriate safeguards to avoid negative implications for the delivery of affordable housing. The statutory guidance issued under Section 221 of the Local Planning Act 2008, to which local authorities are required to have regard, explicitly sets out that a charging authority must take development costs, particularly those for affordable housing, into account when setting a charge. The point of the levy is to support and not frustrate the delivery of a local development plan. The statutory guidance is specifically clear that an examiner should consider whether a local authority’s proposed charges would put their affordable housing target at risk. Where the independent examiner considers that it does, they should not approve the proposed charge.

The noble Lord, Lord McKenzie, asked me about the Section 106 funding source for affordable housing. It does not follow that the imposition of a CIL charge will result in lower Section 106 contributions. In setting a charge, a council has to consider the impact on the economic viability, including affordable housing, and ensure that the levy does not put it at risk, which will include affordable housing funds. These amendments are clearly well intentioned. We agree that affordable housing is important and must not be harmed by the implementation of a levy. I can reassure noble Lords that the amendments are unnecessary, as appropriate safeguards already exist.

The noble Lord, Lord Greaves, in his Amendments 148ZZZBE et cetera, seeks amendments that would in effect allow local authorities to implement a charge without first having to remedy any deficiency identified by the independent examination of their proposals. Local authorities are in the best position to know what level of charges will work in their area to support development and encourage growth, but we do not accept that they should have complete freedom to set any charges they like. Instead, we are maintaining proportionate safeguards to prevent unreasonable levy charges, which could put development at serious risk. Our proposals rebalance the relationship between the examiner and the local authority, to provide that it is the authority that has the final decision on how any deficiencies in their proposed charging schedule are addressed. However, we are clear that any changes made by the authority must be sufficient and necessary to remedy any non-compliance identified by the independent examination of the proposals.

Noble Lords also seek to remove powers that allow for regulations to make provision about the evidence that a local authority must or must not consider in setting a charge. Our experience of similar examination of local plan-making shows that the decisions of independent examiners vary. Councils have tended to give a great deal of weight to previous decisions, and that has sometimes led to restricted local flexibility and freedom. We want to ensure that that does not occur with the levy. The proposed power will enable the Government to respond in a robust and flexible way to practices which threaten to undermine the ability of councils successfully to introduce their local levy charges. Our proposals strike the right balance between ensuring that local authorities have real discretion to set charges in their area while retaining appropriate safeguards to ensure that proposals do not put development of the area at risk.

Amendment 148ZZBBA, tabled by my noble friend Lord Greaves, would widen the permitted use of levy receipts beyond infrastructure to matters that support the development of an area. My noble friend has raised an interesting point. We are clear that the point of the levy is to support growth and new development. Infrastructure is of course central to supporting new development and unlocking growth, but it is not the only matter necessary to enable and incentivise development. We want to reflect on whether continuing to limit spending solely to providing infrastructure restricts local authorities’ ability to support and enable development of the area. We want to consider whether widening permitted uses of the levy would make the instrument more effective and better placed effectively to promote, support and enable new development.

My noble friend Lord Greaves also proposes Amendment 148ZZBBB, which would do two things. First, it would alter the purpose of the levy so that it is focused on supporting communities rather than development. We have set out proposals to pass a proportion of the funds raised in an area to the parish council for that area and for those funds to be spent on infrastructure to support the development of that area. Control over the remainder of the funds is to be retained by the charging authority—normally the unitary, district or borough council—to provide the infrastructure needed to support the development of the larger area. The point is that the impact of the development and the infrastructure needed to support it are not confined to the geography of the community. Some will be, and our changes to direct a meaningful proportion of funds to the communities where development takes place will deal with that. Other matters, such as transport, span communities—and, indeed, charging authorities.

Secondly, the amendment proposes to allow funds to be used for the building, improvement and renovation of housing. That is unnecessary, as existing primary legislation in the Planning Act 2008 already contains the power to allow for levy receipts to be spent on affordable housing. However, regulations currently prevent that. Allowing such spending is therefore not a matter for the Bill, but the treatment of affordable housing is relevant to the amendments sought. I can confirm that we will consult during the summer on making that change through regulations.

In Amendment 148ZZCB, my noble friend Lord Greaves seeks to remove the provision for regulation to set out the ongoing costs to be funded by the levy. The powers we propose mirror existing ones in the Planning Act 2008, which allow for regulations to set out the works, installations or other facilities to be funded by the levy. The existing powers are currently used to specify that the Mayor of London must use receipts to fund strategic transport infrastructure. London is unique in that the London boroughs may also levy charges in their area, but are free to spend the receipts on any infrastructure to support their areas. We have no plans to use the power to specify the ongoing costs to be funded, but we envisage that it is necessary to deal with similar exceptional circumstances.

[Lord Berkeley]

Can the noble Earl clarify what is covered by “future ongoing costs”? Is it maintenance of housing or maintenance of a road? It is a bit of an open-ended commitment. You can understand a capital cost but if it is maintenance for roads or housing forevermore, it seems a bit odd.

[Earl Attlee]

My Lords, perhaps it would be helpful if I first answered the question from my noble friend Lady Hamwee on whether ongoing means maintaining the infrastructure or excludes it. Clause 100 sets out that this includes maintenance and operation of infrastructure.

Amendment 148ZZBBC seeks to allow the levy to fund the provision of infrastructure on a continuous rather than ongoing basis. We do not believe that this amendment would have a material effect. Our changes clarify that levy receipts can be used to maintain the ongoing costs of providing infrastructure but such spending will still have to satisfy the requirement that it also supports development of the area. The reason for our change is that the current provisions are being construed as limiting spending only to the initial costs of providing infrastructure. This could prevent infrastructure that is wanted and needed from being provided where the funds necessary to maintain and run it are not available. This is a perverse outcome and we are making sure that councils have the flexibility to deliver what is needed to support development of their area.

My noble friend Lord Lucas seeks an amendment that would prevent regulations allowing levy receipts to be reserved for future ongoing costs. I have explained that our proposals are concerned with ensuring that local authorities have real flexibility to spend the funds on the matters that are needed to support development in their area. We believe that this amendment would constrain this flexibility and could result in inefficient and ineffective spending by requiring funds to be used now rather than retained for future strategic projects that are planned.

Amendment 148ZZCD, tabled by the noble Lord, Lord Greaves, and others, proposes to remove provisions that provide for regulations to place a duty on charging authorities to pass all or some of any community infrastructure levy received to other persons. Alongside the physical barriers to new development, growth can be slowed or restricted by local concerns about its impacts. We intend to use the powers conferred by Clause 100 to require charging authorities to pass a meaningful proportion of receipts raised from new development in an area to a parish, town or community council for that area where there is such a local council. The local council will be required to spend the funds to provide infrastructure to support the development of its area.

When communities understand that new development is directly contributing towards the cost of the demands that it places on the infrastructure of their area, and see that they will be given real control over how these resources are used to address those demands, they are more likely to accept and indeed support it. Our reforms to the levy will make it genuinely pro-growth. Addressing the demands that new developments place on infrastructure will enable development to happen and it will incentivise communities to accept it. Using receipts to invest in the local area will ensure that growth is supported and sustainable, which will in turn unlock new development and growth.

We want to reflect on the amendments proposed by my noble friends Lord Greaves and Lord Tope to allow the spending of the levy on matters other than infrastructure. It is essential that the levy operates in a way that helps drive growth as effectively as possible. We will carefully consider whether permitting spending on other matters can improve the instrument’s ability to support and enable development. As ever, I am very happy to discuss these matters privately between this stage and Report. I hope that noble Lords will feel able to withdraw their amendments at the appropriate point.