Airports National Policy Statement

Lord McKenzie of Luton Excerpts

Wednesday 6th June 2018 Lords Chamber

[Baroness Sugg]

I thank my noble friend for his support. I again acknowledge that this has taken some time, but we have now laid the final NPS. On other airports and reaching capacity, demand for flights is growing and will continue to grow. That is why, alongside the NPS, we also made the announcement of other airports being able to make best use of their existing capacity.

[Lord McKenzie of Luton (Lab)]

My Lords, I welcome this Statement. It has been a long time coming, and of course there is a long way to go yet; even if the noble Baroness, Lady Randerson, is not right about the timescale, the development control order will not be completed until the early 2020s, according to the Statement, and by the time it is actually built it will probably coincide with us moving back into this place. I particularly support the encouragement of other airports, and in doing so I declare my interest as a board member of London Luton Airport. I think the Minister is aware that Luton is already seeking to make best use of its runways and to build additional capacity. I will ask about the planning system, because all this is putting a great deal of pressure on certain bodies, whether it is PINS or local planning authorities, and this Statement will exacerbate that. What assessment have the Government made of the capacity of the system to cope expeditiously with all the good stuff that could come from this?

[Baroness Sugg]

I thank the noble Lord for his support. I was pleased to visit Luton Airport recently and hear about its exciting plans for its development. On the planning process, we absolutely believe that there is capacity to do this. The scheme promoter will consult on the proposals before submitting its application, which will give people a further opportunity to have their voices heard, and then, after the development consent application, the Secretary of State will consider it. However, we are satisfied that there is capacity to do that.

Monarch Airlines

Lord McKenzie of Luton Excerpts

Monday 9th October 2017 Lords Chamber

[Lord Callanan]

I am afraid I am not familiar with that case, but Ryanair will have to comply with the rules and regulations in the same way as everyone else, as I said in my previous answer. With regard to passengers who are leaving this country, I am afraid that in this case our responsibilities extend to getting those who are stranded abroad repatriated. People who have booked flights in advance with Monarch will need to look at their travel insurance or their credit or debit card companies to gain a refund. However, I am sure the noble Viscount will understand that it cannot be the Government’s responsibility to fly people out from this country. We took the view that our responsibility was to repatriate those who were stranded abroad at no cost to themselves. As I have said, we are working with credit and debit card companies to try to recover as much of that money as possible, but there is a limit to how much we can intervene in these matters.

[Lord McKenzie of Luton (Lab)]

My Lords, I start by declaring my interest as an advisory member of the board of London Luton Airport. These are difficult days locally, as the Minister has said. Monarch has been a proud Luton-based carrier for nearly 50 years and a good employer. It is one of two airlines that for many years helped to sustain the airport itself, together with Britannia Airways. If there is a silver lining, as has been explained, it is the vibrancy of the aviation sector, and London Luton Airport in particular, which is the fastest growing airport in the UK and the country’s fifth-biggest airport.

I welcome the action that the Government have taken and recognise that substantial costs have hit the public purse in the form of repatriation costs, redundancy payments and the pension scheme, involving the PPF. Is it right that when Greybull Capital purchased Monarch Airlines, it was on the basis that the PPF should take responsibility for a £600 million pension scheme obligation in return for a derisory stake in the business? Can the Minister also say something about Monarch Aircraft Engineering? He has said that it is not affected by this, which is good news so far because plenty of skills and skilled jobs are deployed in that company. However, can he say where this will leave the ownership of that entity?

[Lord Callanan]

The noble Lord has given me an opportunity to pay tribute to the five UK airports involved, considering that they were informed only a matter of hours before the administration took place. All five airports, including Luton, did an absolutely fantastic job in helping us by laying on staff to inform people who, sadly, were arriving on the Monday morning expecting to go away on holiday that the airline had gone into administration. Credit is due to all the airports. I am not aware of the precise circumstances of the bailout a year ago, but I understand that the information the noble Lord has is correct. The PPF took responsibility for the pension fund as part of that deal. I was not in post at the time and I do not know all the details, and it would be remiss of me to comment too much on them, but I will write to him.

[Lord McKenzie of Luton]

Could the Minister please deal with the point about Monarch Aircraft Engineering?

[Lord Callanan]

As I understand it, the engineering business is still trading normally and is not in administration. Clearly, a substantial part of its work was with Monarch, but the majority of it is with other airlines. As I say, I believe it is trading normally but if I have any updated information, I will be sure to let the noble Lord know.

Road Traffic Offenders Act 1988 (Penalty Points) (Amendment) Order 2016

Lord McKenzie of Luton Excerpts

Tuesday 20th December 2016 Lords Chamber

[Lord McKenzie of Luton (Lab)]

My Lords, I draw attention to my registered interest as a president of RoSPA. We welcome the new penalties, particularly as they are accompanied by a road safety campaign. However, as others have said, we doubt their deterrent effect unless there can be visible and effective enforcement.

It is also the view of RoSPA that the law should apply equally to hands-free and hand-held phones, because the distraction and danger caused by using a mobile phone is as much due to the driver not being aware of what is happening around them as to the physical distraction of actually holding a phone. Because the regulation that specifically bans drivers using a mobile phone applies only to hand-held phones, this is often misinterpreted as meaning that it is safe to use a hands-free phone—it is not. As has been said, we know that many employers ban their staff from using hand-held phones while driving for work, but some permit or even encourage them to use hands-free phones. This has to change.

[Lord Kinnock (Lab)]

I want to follow the arguments made correctly, particularly by the noble Lord, Lord Cormack, and the noble Baroness, Lady Randerson, by adding a thought that was prompted on this occasion by the noble Baroness, Lady Chalker, but which has occurred to me over years past. We should follow the examples set by previous advances in ensuring greater safety standards in motor vehicles, specifically the statutory requirement to install seatbelts. I, and I presume several other Members of this House, am old enough to recall the specification of a date by which vehicles of every kind had to have seatbelts. Indeed, I recall installing seatbelts myself in a rather battered Standard 10—it was a long time ago. However, I am certain that specifying a date requiring vehicles of all descriptions to have at least hands-free technology installed would make a significant difference and reduce the appalling toll of deaths and life-changing injuries that have occurred because of drivers using telephones.

I certainly have sympathy with the case put by my noble friend Lord McKenzie that it is evident that the use of hands-free telephones constitutes a certain level of danger. However, I would make the case, without diminishing the force of his argument, that the danger of having to manipulate a telephone by hand is far greater than that of answering or using a hands-free telephone. In the cause of making further advances—much in the spirit of the view put by the noble Lord, Lord Cormack—I would ask the Government two questions. First, would they consider emulating the example set by the requirement to install seatbelts in the front of all vehicles? The requirement to install them at the rear, I am proud to say, was partly a European Commission initiative when I had the pleasure of being the transport commissioner. Now, of course, that requirement is universal in all saloon cars, as well as in relevant other vehicles which have rear seats. If a date was to be specified and legislated for, I am certain that could make a significant difference.

My second question is whether the Government are considering commissioning relevant research to establish whether there is a technological means in motor vehicles to ensure that it is impossible for a person occupying the driving seat to use a telephone while the engine is running. I am certain it is well within the capability of modern technology to establish such a relationship and to enforce such a technical prohibition. Are the Government commissioning research that could produce such a result?

Airports: London

Lord McKenzie of Luton Excerpts

Tuesday 11th October 2016 Lords Chamber

[Lord Ahmad of Wimbledon]

My right honourable friend has a very important job as Foreign Secretary and is doing a sterling job in that respect. As far as expansion is concerned, the commission reported back on the need to increase capacity by 2030 with the addition of one runway in the south-east, and that is where the Government’s decision is focused.

[Lord McKenzie of Luton (Lab)]

My Lords, HS2 notwithstanding, is the Minister aware that it is currently possible to get from London to London Luton Airport in less than half an hour?

[Lord Ahmad of Wimbledon]

I am fully aware of that fact, and the noble Lord will be pleased to learn that I shall be visiting London Luton Airport in the next two weeks, as my next visit since my appointment as the Aviation Minister.

Infrastructure Bill [HL]

Lord McKenzie of Luton Excerpts

Monday 9th February 2015 Lords Chamber

In conclusion, mayoral development orders are a positive planning tool that will allow London local planning authorities and the mayor to collaborate effectively on planning to deliver housing and growth. I therefore ask your Lordships to agree to this new clause, which provides powers that will help to deliver the jobs and homes that London badly needs. I beg to move.

[Lord McKenzie of Luton (Lab)]

My Lords, we can support the creation of a regime for mayoral development orders, which we see as being uncontroversial. We are certainly supportive of proposals that can improve the delivery of new housing in London, and we note that London Councils and the GLA have expressed support for MDOs.

From discussion in Committee in the Commons, it has been confirmed today that such orders have to be initiated by the London boroughs themselves, and a particular benefit will be supporting the development of complex cross-boundary situations. Can the Minister say a little more about the extent to which they might be used within a particular boundary and not on a cross-border basis? It is presumed that we will not get the underpinning regulations by the end of this Parliament, unless the Minister can tell us otherwise. We note that the negative procedure is to be adopted. Perhaps the Minister might say when they are expected to be ready.

On housing numbers for London, what the Minister said in the other place has been confirmed today: there is an annual shortfall in capacity of between 7,000 and 20,000 homes. It was less than clear from the exchanges at the other end the contribution that MDOs might make in addressing that shortfall. I think the proposition was that they might speed things up, but whether they will have broader impact will be interesting to hear.

A further point, for which there was no satisfactory answer, was how MDOs can contribute to more affordable housing. Can the Minister confirm that Section 106 agreements will not operate for MDOs? If that is not the case, how will MDOs impact on the obligation to provide affordable housing? If this is the case, how will it be assured that the provision of affordable housing will be forthcoming, and what is the mechanism? It would be helpful to have clarity on that point. Nothwithstanding that, as I have said, we do not oppose the new clauses and will support them.

[Baroness Kramer]

My Lords, there is indeed a broad consensus across this range of issues. The noble Lord, Lord McKenzie, asked whether these orders could be used within a local authority rather than just across boundaries. Indeed they can, and of course local development orders are already available to local authorities, but they may wish to tap into the additional capacity and capability that is available in the mayor’s office for particularly complex projects. There may be occasions when that happens, and our expectation is that it will be primarily for the kind of sites that are complex enough to cross boundaries. Obviously, that happens quite often in London. Secondary legislation will appear in due course—a phrase with which I am afraid the House is probably very familiar—but at this point I think we can say with some confidence that that will be in the next Parliament.

I share the noble Lord’s understanding of Section 106, and he will be aware that the voice of local authorities is very powerful on this issue in shaping the kinds of development that they see as appropriate for their communities. It is not the mayor imposing a vision on local authorities, but rather local authorities looking to use the capacity that is on offer from the mayor in order to move developments forward proactively. Its primary purpose in all the discussions with London Councils and others has been to emphasise the importance of accelerating new housing development across the city.

--- Later in debate ---

[Baroness Kramer]

My Lords, in discussing these amendments I shall include Amendments 28 and 36. These amendments deal with the Government’s public sector land programme, which has successfully released land for almost 98,000 new homes to date. We fully expect to meet our 100,000 homes target by March this year. Looking ahead to the next Parliament, we have an even more ambitious target, which aims to deliver land for a further 150,000 homes. This programme will be led by the Homes and Communities Agency and the Greater London Authority, and will mean transferring a significant amount of government land into their ownership.

Clause 28 will ensure that future purchasers of land owned by the Homes and Communities Agency, the Greater London Authority and the mayoral development corporations will be able to develop and use land without being affected by easements and other rights and restrictions. Clause 28 will bring the position of purchasers of land from the HCA, the GLA and the MDCs into line with those presently enjoyed by purchasers from local authorities and other public bodies involved in regeneration and development. This in turn will enable us to increase the attractiveness of surplus public sector land to developers, thus ensuring that we can facilitate the development of much needed new homes and support economic growth by removing obstacles to development while achieving best value for the taxpayer.

I want to be clear, however, that where the HCA or the GLA currently retains the freehold in the land and leases that land to developers, the powers to override third-party rights and restrictions are already exercisable on that land under existing legislation. There has to date been a degree of uncertainty on this point, which I understand has resulted in delays to certain developments in London. Amendment 13 seeks to provide an assurance that where the HCA or the GLA retains the freehold of land, the powers to override third-party rights and restrictions in land already apply under existing legislation, and we are happy to provide that clarity.

I turn now to Amendments 14, 28 and 36. Perhaps I may move on to the related matter of the Greater London Authority’s powers to incur expenditure on the transport elements of housing and regeneration projects. This important issue was raised in the other place during Committee and the Government promised to look urgently at the legislative options available to address it. We concluded that it was necessary to make a minor change to the GLA Act 1999 and have therefore made the proposed amendment.

Amendment 14 removes a prohibition in Section 31 of the GLA Act 1999 that prevents the GLA incurring expenditure on anything that may be done by its functional body, Transport for London. We are making this change to the GLA Act because the GLA has said that TfL’s powers are wide-ranging and therefore preclude the GLA from incurring expenditure on anything transport-related when undertaking housing or regeneration projects.

The prohibition excludes the GLA from incurring expenditure on projects that the GLA has been responsible for since 1 April 2012 when it took on the roles, land and contracts of the former London Development Agency and the Homes and Communities Agency in London. Without this amendment, around 50 projects worth over £200 million would have to stop. This includes work which the GLA has been funding with the London borough councils to revitalise high streets, including in Deptford, Bromley and Cricklewood. It also affects new initiatives to deliver new homes such as housing zones and at Barking Riverside.

Amendment 36 allows for the clause to come into effect on the day the Bill receives Royal Assent and that it will apply in relation to expenditure incurred by the GLA before as well as after the coming into force of the new clause. This is because it was clearly the intention of Parliament that the GLA should have equivalent powers to the former London Development Agency and the Homes and Communities Agency, following the Localism Act 2011. Amendment 28 limits the geographical extent to England and Wales.

Making these changes to the GLA Act 1999 is therefore essential to ensure that the GLA can deliver new homes and jobs for London. I beg to move that this House accepts these Commons amendments.

[Lord McKenzie of Luton]

My Lords, we consider these amendments uncontroversial and are happy to support them. We particularly see the thrust of Amendment 14 and the need to change what is clearly an unintended provision in the 1999 Act. It is indeed perverse if because of the existing powers the GLA is precluded from incurring expenditure on anything transport-related, such as transport-related projects to deliver housing, jobs and growth in London. That cannot be right, which is why we support the amendments.

Motion agreed.

--- Later in debate ---

[Baroness Kramer]

My Lords, I beg to move that this House do agree with the Commons in their Amendment 23. In discussing Amendment 23, I will also include Amendments 34, 40 and 48. The Board of Public Works Loan Commissioners, commonly known as the Public Works Loan Board or PWLB, is a statutory body that dates back to the Public Works Loan Act 1875. It comprises 12 loan commissioners appointed by the Crown to administer making loans to local authorities. The commissioners are independent of government and unpaid by law. Under Section 4 of the National Loans Act 1968, the PWLB currently has a statutory lending limit of £70 billion. The current level of debt amounts to £64 billion. The original role of the loan commissioners was to approve and issue central government loans to certain categories of permitted borrowers. Under the 1875 Act and subsequent legislation, the commissioners have the power to refuse a loan on the basis of lack of security, and to appoint a secretary who can hold security and to whom the powers of the commissioners can be delegated. The commissioners are also required to issue an annual report to Parliament setting out details of loans advanced by the PWLB.

However, since 2004 decisions on borrowing have been fully devolved to local authorities under the prudential regime. As part of the local authorities’ self-regulated regime, local authorities are free to finance capital projects by borrowing without requiring government consent, provided they can afford to service their debts out of their revenues. This means that the decision-making functions of the PWLB commissioners are essentially obsolete. Local authorities are responsible for their own decisions on whether to borrow and how much. Further, the day-to-day operations of providing loans are now carried out by the Debt Management Office—the DMO—which is an executive agency of HM Treasury.

The commissioners’ functions and powers are delegated to the secretary of the PWLB, who is a civil servant at the DMO. The highly regarded prudential regime means there is no scope nowadays for the commissioners to exercise influence or discretion over lending to local authorities. The Government are therefore considering whether to abolish the Public Works Loan Board while ensuring that permitted borrowers, mainly local authorities, will continue to be able to access central government loans in the same way as now.

The purpose of including the PWLB in Schedule 1 to the Public Bodies Act 2011, which is what these amendments achieve, is to confer on the Government the power to make an order under the Public Bodies Act that would abolish the PWLB and transfer its functions to an eligible person, as defined in the Public Bodies Act. Let me assure noble Lords that the abolition of the PWLB, and the succession arrangements, will be subject to proper parliamentary scrutiny under the Public Bodies Act process. This proposal is purely about governance reform. The PWLB abolition will not impact on the prudential regime or local authorities’ existing loans with the PWLB, and local authorities will be able to undertake new borrowing from the successor body, as now, at rates that offer good value for money. Interest rates will continue to be a policy matter for HM Treasury.

Following the commencement of the provisions in this clause, the Government plan to publish a consultation document providing details of their proposals for abolition and succession, as required under the Public Bodies Act. After taking into account responses from the consultation, both Houses will have the opportunity to scrutinise the draft legislation, which will of course be accompanied by the explanatory document, as required by Section 11 of the PBA. Abolition of the PWLB would remove bureaucracy and align the accountability for lending to local authorities with DMO’s existing responsibilities for day-to-day operational management. This is in line with the Government’s wider efficiency and modernisation agenda.

I am conscious that these amendments are so uncontroversial that this may be the last moment that I am on my feet in a discussion on the Infrastructure Bill. I would like to take this opportunity to thank my noble friends Lady Verma and Lord Ahmad, who have been stalwart in leading significant parts of the Bill. I thank your Lordships all across the House. The Bill has involved many different departments; individuals with different specialisation and Peers who have followed different issues have had to co-ordinate and manage across the complexities. They have done so brilliantly. I think we have collectively improved the Bill. It has also involved working closely with the other place. This is also an opportunity for me to say particular thanks to the Bill team, which has had to deal with some of the most extraordinary complexity in managing this whole process. Frankly, I think it has done it brilliantly.

I will of course wish to respond if issues are raised by any other Members of the House, but I did not want to lose the opportunity to say thank you, since I am aware that the amendments I am moving are so technical and uncontroversial that this may be my last time to speak. I beg to move.

[Lord McKenzie of Luton]

My Lords, I am bound to say that when I saw references to the Public Works Loan Board being abolished a sense of nostalgia swept over me. It took me back to my first finance committee meeting of Luton Borough Council in 1976—noble Lords will remember that in those days if you turned up with a briefcase you were put on the finance committee straight away—and to the regular reports of the borough treasurer thereafter. Little did one realise that we were then in the comparative twilight of the commissioners’ existence.

The most recent Annual Report and Accounts, in describing the functions of the commissioners, says that they derive from legislation of 1875 and 1968, which has been referred to. However, the report also says that the PWLB’s existence can be traced back to 1793. It became established on a permanent basis in 1817. It is asserted that changes over time have made the PWLB less relevant, to the point where it is suggested that its purpose is redundant. As we have heard, its functions and powers have been delegated to the Debt Management Office. A significant development was the prudential borrowing regime introduced under the previous Labour Government, which obviated the need for local authorities to go through a credit approval process. In fact, the prudential borrowing regime has proved to be a major success and has demonstrated that local authorities act responsibly and prudently when it comes to exercising borrowing powers. The proposition is to include the PWLB in Schedule 1 to the Public Bodies Act 2011 so that the Government can use powers under that Act to abolish it and transfer its functions to an eligible person. It seems as though any necessary consultations are to take place under the PBA processes—presumably about “how” to abolish it, not “if”.

My colleagues in another place have already challenged the Government on why the consultation promised last July has not taken place. They have also reasonably sought to clarify what residual functions the PWLB undertakes. The foreword to the 2013-14 Annual Report and Accounts described the functions of the commissioners as being,

“to consider loan applications from local authorities and other prescribed bodies and, where loans are made, to collect the repayments”.

As a practical matter, as we know, these responsibilities have been delegated to the secretary—effectively the accounting officer. The PWLB borrows from the National Loans Fund to fund its loans. All interest and loan repayments are paid over to the National Loans Fund. Commissioners are prepared to lend to an authority up to the available capacity in its prudential borrowing limit.

It seems to us that although the functions have been delegated to others the PWLB’s nominal powers are surely not insignificant. At 31 March 2014 it held loans of approximately £63.7 billion, with corresponding liabilities of the same amount. Its powers to facilitate borrowing and manage loans must be significant, even though delegated. As my honourable friend Roberta Blackman-Woods MP stated in another place, we all,

“want assurance that there is good oversight”—

and transparency—

“of local government borrowing”.—[Official Report, Commons, Infrastructure Bill Committee, 13/1/15 col. 333.]

Perhaps the Minister would take the opportunity to say how she considers that this will be provided under any new arrangements. Having said all that, we certainly will not oppose these amendments.

[Baroness Kramer]

My Lords, the consultation that will come under the Public Bodies Act is obviously an important step in the process to allow for full discussion of the kinds of issues that the noble Lord, Lord McKenzie, has discussed today. At the moment the commissioners simply meet on an annual basis. They note the loans issued and review the annual report prepared by the officials. I think this House would agree that sometimes it is important to recognise reality and make sure that the formal arrangements match the actuality. We hope that this is a step in that direction.

Infrastructure Bill [HL]

Lord McKenzie of Luton Excerpts

Wednesday 5th November 2014 Lords Chamber

Moved by

[Lord McKenzie of Luton]

101A: Clause 26, page 26, line 29, at end insert—
“( ) The provisions in section 1(1A)(d) of the Building Act 1984 regarding action to be taken as a result of the building’s contribution to or effect on emissions of carbon dioxide shall apply to—
(a) all buildings and developments consisting of ten or more properties, or(b) from 2018 all buildings or developments of any size.”

[Lord McKenzie of Luton (Lab)]

My Lords, this amendment seeks to limit the small sites exemption to two years from 2016 and to abolish it thereafter and to require the threshold in the interim to be sites with fewer than 10 properties. The Government have sprung their small sites exemption on us with little or no consultation, although they are now consulting on the matter. In the mean time, it remains unclear what is meant by small sites or by the exemption. We were hoping to have some clarity on these issues in time for today, but, alas, no. I thank the Minister for his letter of 3 November, where he said that the Government had endeavoured to publish the consultation document and the government responses on the zero-carbon consultation for the House of Lords Report stage, but were, however, still working on the document. It would be helpful if the Minister could say more about when we will be able to see that.

As we debated in Committee, the rationale for any exemption from the zero-carbon homes standards is a bit thin. The Government have already lowered these standards. If there is any justification for a time-limited exemption for some sites, it is that, having announced it, it might be argued that some time is needed to move back to the single standard. However, the longer the uncertainty about the detail of the exemption continues, the less valid that point is. The Government have argued that the exemption will be of help to small builders who have more difficulty in responding to new regulations. While I am sure that we all wish to encourage small builders, this is not the best way to do that.

We have recently had the benefit of the report from Michael Lyons, covering a whole raft of interesting stuff on housing. Within the package of support for SMEs that he recommends, for example, are these points:

“Legislative change to permit ‘redline’ outline planning applications on smaller sites of fewer than 10 homes. Local authorities should identify small sites in public ownership in local plans, and work with … public landowners to make them available for purchase and development by SMEs. Local authorities and their New Homes Corporations, working with lead developers should offer more packaged … opportunities for serviced sites to help SMEs access the market, including in Housing Growth Areas”.

Therefore, there are other ways in which to help small builders. In any event, it was pointed out in contributions to our debate that it is assumed that only small builders build on smaller sites and that larger builders would not seek to parcel sites to take advantage of the small sites exemption. It is also the case that a significant number of homes are provided on smaller sites.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, first I thank all noble Lords who have participated in this debate, and in particular the noble Lord, Lord McKenzie, and the right reverend Prelate for their amendments, which have allowed us to discuss this important issue again.

I am conscious that Amendment 101A has already been discussed in Committee. I am of course happy to revisit the subject because of its importance, and in doing so I ask noble Lords to excuse me if I cover points we have covered before. From our previous discussions, and as my noble friend Lord Teverson has alluded to, I know that a clear consensus was emerging that in designing the zero-carbon homes policy we must ensure that smaller builders are protected from increases in costs that may make it more difficult for them to compete. In seeking to limit the scope of the application of off-site carbon abatement measures to developments of 10 or more dwellings, the amendment recognises that important principle. On that basis it is well intentioned and in line with the Government’s thinking on the issue.

With regard to the Government’s thinking, I am conscious that noble Lords would have expected a consultation paper to have been issued by now and in advance of this debate. Indeed, in various meetings that I have held in advance of this stage of the Bill, this was something we discussed. At this point I can only apologise for the delay which has occurred. I assure noble Lords in that apology that the Government are working very hard on the consultation paper, and we are very aware of the interest on this issue and the need to set out our thinking as soon as possible.

We recognise that achieving the zero-carbon standard could be particularly challenging for small builders. Smaller developers face extra costs in terms of land acquisition and purchasing. They also rely on an ability to identify and redevelop small sites or to assemble small parcels of land into larger opportunities. Research recently published by the National House Building Council on improving prospects for small housebuilders suggests that the availability of suitable small sites—which they indeed prefer—is declining. It also indicates that any extra regulatory costs can impact on the viability of development. We are concerned that if the costs of zero carbon lead to fewer small sites being brought forward, this will further hinder the prospects for small housebuilding firms.

Therefore, while welcoming the intention behind the amendment, it cannot be supported, principally because it would not provide the flexibility that we need on this issue. Putting a rigid exemption in primary legislation would not be the right way forward. There must be flexibility to respond to changing market circumstances and to listen to those people with the main interests in this area, the homebuilders and environmental groups. Our intention therefore is first to seek the views of those interested parties on how the exemption should work. Only after that consultation would we legislate, setting out the scope of the exemption through the building regulations and providing supporting guidance in that respect. Primary legislation is not required to exempt small sites. Section 3 of the Building Act allows for building regulations to make different provisions or to exempt prescribed classes of buildings from the requirements of building regulations. However, I recognise that the key point of the debate is the threshold to be applied.

The amendment proposes an exemption based on sites of fewer than 10 units. I mentioned during Committee that this was one of the options being considered. I say “options”, because we must leave room for respondents to offer up different options or evidence for consideration. We will also consult on the timeframe that should apply to any exemption. It is this area in particular where flexibility is a paramount consideration. What may be right at the time of designing the exemption may not be right further down the line, and the Government must have the ability to review the operation of the exemption appropriately. I hope that it is helpful to clarify these important points and that doing so provides some further reassurance in advance of the consultation being published. We do, of course, welcome noble Lords’ considered opinions and views as part of that consultation exercise, and I assure your Lordships’ House that they will receive a copy at the earliest opportunity.

The noble Lord, Lord McKenzie, asked about a response on allowable solutions from the Government that was published in July and provided to noble Lords ahead of Committee. I am not sure whether there has been a response, or if it did not reach the noble Lord. I specifically asked for it, and was assured that a hard copy was also sent to the noble Lord in this respect. If, again, he requires a further copy of that, I shall be happy to forward it on.

I now turn to Amendment 108A, in the name of the right reverend Prelate. As I said during the discussion on a similar amendment in Committee, this amendment will result in significant problems by prescribing energy performance levels in the Bill. We all share the desire to see energy-efficient homes built that help to reduce carbon emissions and fuel bills. We should not forget that this Government have made significant progress towards delivering on the commitment made by this and the previous Government to ensure that zero-carbon homes are built from 2016 onwards. Since we confirmed our commitment to the 2016 target for new homes to be zero carbon, we have further strengthened the requirements of the 2006 building regulations in 2010, and again in 2014, achieving a 30% total reduction. In fact, the most recent changes we made to the building regulations in 2014 will help to save homeowners an average of £200 on their fuel bills, compared to new homes built before we came to office.

Of course, we are not stopping here. As I have said, we have confirmed that from 2016 all new homes will have to meet even higher standards for on-site measures to be set out in building regulations. These will be set at a level equivalent to that required for a home built to the code for sustainable homes level 4 standard and will save homeowners on average £700 more annually when compared to a typical existing home. The right reverend Prelate talked of building to code 4. This can be done, which is why we think it is a reasonable standard to set. However, as shown by the Zero Carbon Hub’s as-built performance gap programme of work, there are challenges. We should set a realistic and achievable target, not one which pushes the industry to a point where it cannot deliver in practice.

To change the energy requirements for new homes, it is always necessary to consult carefully those affected. We should not forget that we are talking about a technical area that impacts across the whole construction sector. Additionally, the industry reports on building types that this amendment ignores and does not address, such as high-rise flats, because more work is needed. The categories listed in the amendment contain different building types and a rigid standard to cover them all. This may not work in practice. It may, but it is important to take the time to work through it in consultation with the industry. It would not be workable to deliver the proposed standard within six months. Even if it were, it may not be prudent to have such a rigid timeframe for delivery in primary legislation.

The independent Zero Carbon Hub recognises that further technical modelling is required. If, in the light of consultation, even slight adjustments were needed we would not be able to make them without new primary legislation. I assure noble Lords that the Government will strengthen standards and deliver zero-carbon homes from 2016. That is and remains a clear commitment on which we will be held accountable if we do not deliver. Between now and 2016 we will consult widely as to how the new proposed carbon compliance standard can be met. We will share that consultation with noble Lords.

My noble friend Lord Teverson and the right reverend Prelate the Bishop of St Albans asked about exemptions. The number of smaller housing developers competing in the market is significantly lower than it was prior to 2008. Smaller developers often face greater set-up and purchasing costs, compared to larger developers. New regulatory requirements often hit smaller developers earlier, as there are shorter lead times to starting development. With all this in mind, it is vital that the Government give the sector the support it needs, and exemption from the full cost of the carbon requirements is one way of doing so.

Let me also reassure the right reverend Prelate that we work closely with partners such as AIMC4 that have shown that it is possible to build homes to meet a higher level of energy efficiency. The work of that group has helped the Government in deciding to set the on-site requirement at around code level 4, as this should be affordable and achievable for the majority of developers. It is important to recognise that this work was limited in scope and did not extend across the full range of buildings such as flats.

The point was made that the setting of on-site standards could result in a watering down. We worked closely with the Zero Carbon Hub, whose work was hugely influential in helping the Government decide what further action to take from 2016. The hub did not recommend an on-site level for high-rise apartment blocks, recognising that further specialist work was required.

My noble friend Lady Maddock asked some specific questions about rowing forward and rowing back, as she described it, and said that some explanation was needed. I am sure she will appreciate that there are discussions taking place. I hope that my comments have somewhat reassured her that the commitment of the Government to achieve our objective when it comes to zero-carbon homes and to the policy that we have agreed from 2016 remains a priority.

I hope that my responses have been sufficient to reassure noble Lords of the Government’s position on both these amendments and that the approach I have outlined here, as well as in Committee, has demonstrated why these amendments may prove problematic in terms both of increased demands on the home building industry and of the mechanics of delivery. On the basis of these reassurances and accepting that we are still working towards the issuing of the consultation on zero-carbon homes, I hope there is sufficient to encourage the noble Lord, Lord McKenzie, and the right reverend Prelate not to press their amendments.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for his response to my amendment. I think we recognise that putting material in the Bill reduces flexibility. The point is well made that these things will need to be dealt with in secondary legislation. The purpose of an amendment such as this is to get some debate and discussion going, as the Minister is well aware. He suggested that Amendment 101A, with its recognition of sites of fewer than 10 properties, was an acceptance of the policy. That was certainly not its intent. The key part of that amendment was that there should not be any exemption after 2018.

The consultation that I was probing was the one that was dealt with in the Minister’s letter of 3 November, which was the consultation on the exemption for small sites. If I made reference to allowable solutions it was not my intention. That was the consultation—knowing when it will happen and, more importantly, what is in it.

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[Lord Teverson]

My Lords, this continues a similar theme. I tabled an amendment in Committee to try to get more rigour into ensuring that the building regulations that we have are met and complied with. There is very little point in our legislating if those standards are not met in practice. I quoted the Government’s own adviser, the Committee on Climate Change, which stated that there seemed to be a big gap between what should be happening with the thermal efficiency of homes and what was actually happening. I was not completely reassured by that, but I accept that that is mainly a role of local government.

I am trying move on to address the fact that it often takes—and certainly has over recent years—a long time for a planning permission to become a built-out and lived-in development. We have the situation—I look on it as an anomaly or rather a loophole—whereby the building regulations to which builders must build relate to the date of the planning permission rather than when the development is constructed and completed. If that is only within a couple of years, it makes no difference whatever. We have, however, a number of developments—at certain times more than others—when that stretches over a considerable period. I realise that planning permissions themselves have a shelf life. After three years, if they have not been used, they go into abeyance. However, I remind noble Lords that under that system, as long as you do a certain amount of work—you do not have to complete it—that planning permission remains live. That is something that is done very regularly to make sure that planning permissions are not lost.

I was very impressed by the Minister’s figure of £200 that would potentially be saved per annum by the moving up of building regulations by the Government. Of course, that illustrates very well the extra cost to residents of houses that do not meet those standards—either because they have been exempted under the small development regime that we talked about in the previous amendment or because houses are being built under building regulations that are several years old.

It seems to me that this is something that needs to be fixed—for consumers and certainly for the government strategy on fuel poverty and zero-carbon homes. So I am putting forward an extremely modest proposal that is a longstop: if developments have not been completed within six years of gaining planning permission, at that point they must comply with the building regulations of that time rather than those when the planning permission took place. I have tried to make this amendment as clear as possible. I hope it says that. I very much hope that it is in line with government policy and that this is something of a loophole that we would like to close—particularly when we have periods when building and construction developments take a particularly long time.

Indeed, I would ask whether there is a temptation sometimes to get planning permissions early. Where we have land banks, it perhaps means that construction is delayed but it almost gives a benefit to developers to hang on to undeveloped land. I would like to see this very sensible measure used as an incentive for building, particularly of dwellings when we have such a national housing shortage, to be started and completed within a reasonable period. I beg to move.

[Lord McKenzie of Luton]

My Lords, we should be grateful to the noble Lord, Lord Teverson, for raising a very important and interesting point about developments that are not completed within six years of the granting of planning permission. As we have heard, it requires the development to be carried out in accordance with current building regulations relating to conservation of fuel and power. This is an attempt to address the very serious point that we have delays in the completion of developments, particularly housing. Given the housing crisis we face in this country, the objective should be to encourage sites with planning permission to be built out as soon as possible.

This is one of the issues that the Lyons report addressed for us. Although this is not the occasion for an extensive discourse on that report, one of the interesting points it makes is that some 80,000 unbuilt homes have planning permission from 2010 or earlier. Some of these will be built to 2006 standards, and so be eight or more years out of date. One of the issues that this amendment raises is how practical it is retrospectively to amend the applicable building regulations. There will obviously be issues around homes that are partially constructed at the cut-off point. Getting homes built earlier is good for obvious reasons, although, of course, it does not necessarily do anything to raise the standards of applicable building regulations.

I might resort to going back to the Lyons report. Obviously, not all these recommendations are yet, or will become, policy, but under the heading “Use it or lose it”, it suggests that,

“the life of a planning permission should be reduced to two years with higher fees applying for renewal of expired permissions”.

That would present an alternative mechanism whereby people have to go back and face updated building regulations. Certainly, more substantive work should be required to count as the commencement of development. That is a problem the noble Lord identified. The report also suggests that,

“councils should have powers to levy a charge equivalent to council tax if land allocated in a plan with or without permission is not brought forward within five years”.

Compulsory purchase powers could be strengthened and streamlined to make it easier for public bodies to acquire land where it is not brought forward and where it is a priority for development, so there are alternative ways to encourage developments to take place and perhaps to realign the nature of those developments with updated building regulations. The noble Lord has raised a very interesting point which I am sure will get a full response from the Minister. One hopes that something could actually flow from this.

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend Lord Teverson for tabling this amendment. I also thank the noble Lord, Lord McKenzie, for his comments.

I should say at the outset that I share the sentiments expressed on the objective of ensuring that more homes are built, and built according to better standards and in line with standards. My noble friend’s proposed amendment sets a six-year time limit on a development being built to the energy performance requirements in building regulations in force at the time that planning permission was granted for the development.

I should start by pointing out that, as noble Lords may be aware, it is not the grant of planning permission that is the trigger for the application of building regulations’ requirements but the submission of a plans application or a building notice, or an initial notice to the building control body. During my time in local government, I remember many applications that were challenging in that regard. Therefore, we think that the amendment as drafted may lead to confusion about what happens under planning as opposed to what happens under building regulations.

However, setting to one side the issues that may arise from the drafting of the amendment, there are important practical considerations about how new building regulation requirements apply to developments already under way at the time that the new regulations are introduced. It can take a long time to plan, design, finance and build a development, as noble Lords know. It is therefore correct that the building regulation provisions in force when the building regulations application is made remain those with which the development must comply. To provide otherwise would lead to unreasonable disruption, perhaps delay, and increasing financial burdens as there would be uncertainty about construction standards and a risk of disruption to the supply chain part way through the development.

For example, large developments such as the famous “cheese grater” building in Leadenhall Street, London, will take many years to build and complete—often longer than six years. If accepted, this amendment would mean that the technical requirements of those developments would need to be changed part way through construction. Forcing a development to change from one set of building regulation requirements to another half way through a project would cause real problems for builders, as I am sure my noble friend would recognise.

However, in saying that, I put on record that I totally understand and appreciate my noble friend’s concern that developers may play the system by submitting a building regulations application and then doing nothing or delaying the development and not having to meet any more up-to-date requirements that may have been introduced in the mean time. From my experience, I have seen that happen, too. The Government have recognised this issue and so building regulations generally require that whenever any changes are made to building regulations, building work in respect of any applications made before the coming into force of the new requirements must commence at the latest within 12 months—otherwise, the new requirements will apply.

This requirement was introduced in 2006. Before then, as noble Lords will know, the time limit was three years. This time limit is set in the building regulations. This gives the opportunity to adjust the time limit in light of the circumstances when new regulations are introduced. If we were to rely on changes to primary legislation, we would then lose the flexibility to respond. If we stated the time limit at an inappropriate point, we could cause real problems for housebuilding, as I have already outlined. It will be for the Government dealing with building regulations changes for 2016 to consider what time limit may be appropriate. I am sure that they will read this debate very carefully to see the issues raised and the views expressed. I believe that my noble friend recognises that the amendment as it stands focuses only on one specific area of building regulations, the energy performance requirements. The time limit which I have just described applies in respect of any change to the standards in the building regulations. Therefore I am sure that my noble friend recognises that it may lead to confusion for developers if different time limits apply to energy performance requirements than to other requirements of building regulations.

The amendment from my noble friend, as the noble Lord, Lord McKenzie, has said, raises an important issue. However, as drafted, it would not work for the practical reasons that I have outlined. I hope that I have set out in some detail the time limit which already operates in building regulations to tackle the risks of developers who seek to just get regulations in place for the sake of it. There will be an opportunity in the consultation on the 2016 regulations for energy performance requirements to be looked at. I hope that, in the light of the assurances and clarifications that I have provided, my noble friend will be minded to withdraw his amendment.

Infrastructure Bill [HL]

Lord McKenzie of Luton Excerpts

Wednesday 5th November 2014 Lords Chamber

[The Earl of Clancarty (CB)]

My Lords, I support Amendment 87 in the name of the noble Baroness, Lady Whitaker. As she said, good design is not just desirable but necessary.

The noble Baroness talked about beauty and despoliation of the environment. They are aesthetic concerns which are aspects of wider cultural concerns, themselves a significant and necessary component of good design. I would therefore go further in paragraph 5.22 of the draft licence which the noble Baroness quoted, because I think that the absence of the word “cultural” is an omission. The relevant wording might then state that “the development of the network takes account of geographical, environmental, cultural and socio-economic context”. However, I acknowledge the work that the noble Baroness and others have put in to get as far as they have with the wording as it stands.

This is not about function, operation and maintenance versus culture or design. The precise function or functions of our highways, road networks and the built environment are themselves cultural issues. For instance, if we take into consideration initiatives very different from the norm in this country such as shared space schemes, which are intended to encourage more co-operative rather than competitive spaces, it becomes more objectively clear how form and function reflect each other in a very particular cultural sense. Good design needs to be thought of as central to planning and not as an add-on, not least because there needs to be a wider discussion about what good design is and means in relation to the precise nature of the changes which we have made and continue to make to our environment.

[Lord McKenzie of Luton (Lab)]

My Lords, I am very happy to support my noble friend Lady Whitaker’s amendment and to support those other noble Lords who have spoken in favour of it. Like the noble Lord, Lord Jenkin, I am a great admirer of the way in which my noble friend Lady Whitaker has persistently championed the cause of good design and always the enlightened approach to planning.

As I understand it, the change in wording that is proposed is quite modest, but its impact could be quite profound. The 2008 Act, rather than stating that,

“the Secretary of State must … have regard to the desirability of … achieving good design”,

would state that “the Secretary of State must have regard to achieving good design”. The former, as my noble friend said, suggests that good design is somehow optional. The amendment would make sure that it was not. I hope that the Government are able to accept this small but important amendment.

[Lord Mawson (CB)]

My Lords, I, too, support the amendment. When I arrived in the East End of London 30 years ago this year, I was very conscious of the poor quality of design of large infrastructure. As you spent time in one of the most challenging housing estates, you saw the effect of some of that on ordinary people’s lives. At the Bromley by Bow Centre, we began to challenge that logic of poor-quality design. When we built the first integrated health centre in Britain, we did so from hand-made bricks—like those used at that time at Glyndebourne opera house. There followed a beautiful cloister facing a park and bringing together health, education and enterprise in what is now a rather beautiful environment, in the middle of a housing estate, that has affected many things around it.

I have noticed over the years how people are the environments that we live, work and play in. If you create certain sorts of environment, you get certain sorts of human behaviour. In our park on the housing estate, we do not have any cameras; local people have taken a lot of ownership of it. We have probably one of the few wooden playgrounds that are not burnt every night. If you put numbers around all that, you see that the value of it to people and the Exchequer is considerable. We are following similar principles in the Olympic Park—where I am a director and sit on the planning committee—and trying to ensure that we do not repeat the tacky stuff that has gone on before but build a very beautiful environment that begins to have a major catalytic effect on the quality of design that is starting to happen in the lower Lea Valley. It is interesting to watch how local people and others, and children running through the beautiful fountains, respond to all that. If one looks at the quality of what is being built and the lack of graffiti and other things, one gets a sense of how these things affect human life and their financial implications.

Yes, I suspect that it is difficult to measure in numbers terms; it is difficult to know which box you tick; but my 30 years of experience suggests that quality of design has a massive impact. I suggest that we ignore it at our peril.

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[Lord Tope]

My Lords, I am grateful and my pride is restored. When I received the open-door response from my noble friend Lady Kramer on that occasion, I think I predicted that the two-word amendment which I moved in Committee would come back at this stage of the Bill as a two-page amendment. I did not anticipate that it would run to eight or nine amendments over five pages, but I am grateful to the Minister and his officials for their work to try to correct what we all recognise was an anomaly.

The Greater London Authority is happy with the amendments to Clause 21 and with Clause 21 when amended, but there are still concerns about Clause 22. The Government’s proposals are welcome, but they do not go quite as far as they need to in order to correct what the Government intend. That is because the protection afforded by the new clause does not completely cover historic disposals. We are trying to correct an omission from the Housing and Regeneration Act 2008. It is the view of the GLA that to be legally robust and clear to prevent unnecessary blocking of planned strategically important developments, the legal operation of the changes made by Clause 22 needs to be retrospective and to cover historic disposals. My Amendment 93A to Clause 22(11) would ensure that the changes in the clause cover relevant developments in London from the time that Section 11 of and Schedule 3 to the Housing and Regeneration Act 2008 came into force, which was 1 December 2008. That would mean that all relevant land left unprotected by the defective provisions of that Schedule 3 would be covered by the corrections made by this amended Clause 22. It would also cover the appropriate corresponding provision that applied to the London Development Agency prior to its abolition.

That is entirely consistent with the Government’s intentions. I hope that the Minister will be in a position today to accept Amendment 93A. If he is not in a position to do so today, I hope that he will give a commitment to look at this point, which the Greater London Authority rightly feels to be important, and to correct it at a later stage, preferably at Third Reading in this House so that I can tie up the loose ends, but if that is too quick, then at a further stage of the Bill.

[Lord McKenzie of Luton]

My Lords, we are grateful for the explanation provided by the Minister today and in the letter of 30 October. It follows a commitment made by the Minister when we discussed an amendment from the noble Lord, Lord Tope, which called for the GLA to perform the role of disposal agency in London. This parallels the role designated for the HCA outside London, whereby land from arm’s-length bodies can be transferred directly rather than via the parent department. We support these amendments.

We also support the amendment just spoken to by the noble Lord, Lord Tope, about the cut-off point and the date from which these provisions apply. That anomaly was pointed out in Committee. I hope that the Minister is able to give a positive response.

In Committee, we also probed the prospect of one or more local authorities adopting a similar role, particularly given the prospect of releasing substantial sums of publicly owned land to support housing development. This appeared to find some approval from the Minister, who undertook to explore further. Given that we do not have an amendment from the Government on this point, is this issue still under active consideration?

[Lord Ahmad of Wimbledon]

My Lords, first, I thank my noble friend for his amendment and I thank the noble Lord, Lord McKenzie. After the various bilaterals that we have had in advance of Report, I also put on record my thanks for their attendance and for the discussions that we have had across a variety of issues. We may not agree in some cases but it has always been done in a spirit of having constructive ways of moving forward on various elements of the Bill.

I turn to the two non-government amendments. Amendment 92A would make provision in Clause 21 to allow land to be transferred directly from the ALBs of central government to the HCA, reducing bureaucracy and accelerating development. Amendment 93A is in the name of my noble friend Lord Tope. I do not believe that it is necessary to amend Clause 22(11) to allow powers to override easements to transfer to sites that have already been disposed of. Our clause aims to accelerate development; the proposed amendment from my noble friend would not help to facilitate this any further. Developers have bought land and entered into agreements clearly aware of what powers were available to them. The conditions that the land was sold with and the price paid will have reflected this. We are satisfied that where the land has been leased but the GLA, HCA and MDCs retain the freehold, the existing powers to override easements already apply and will continue to do so. That is sufficient to support development on most of the sites disposed of. Changing the law now to apply to sites that have previously been sold would be an unusual approach and may have unintended consequences.

I accept that in a small number of cases which I am aware of the freehold may have been disposed of, meaning that the power does not apply. However, there are alternative mechanisms available to address this such as taking out insurance, negotiating with easement owners and making references to the Upper Tribunal Lands Chamber. Given the mechanism already available and the small number of sites that would be affected, we do not believe that this is sufficient to warrant a legislative amendment which may well cause unintended consequences elsewhere.

The noble Lord, Lord McKenzie, talked about local authorities. In our meetings, we said that the situation with local authorities was somewhat different. Beyond the discussions that we have had, the Government are certainly not in a position to provide any further detail or to accept any amendments in that regard.

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Moved by

[Lord McKenzie of Luton]

95A: Clause 23, page 26, line 2, at end insert—
“(3) This section shall not come into force until the Secretary of State has laid a report before both Houses of Parliament on the effects of the transferral of responsibility for local land charges to the Land Registry, and the report shall include—
(a) an implementation plan;(b) an assessment of the impact it will have on local authorities.”

[Lord McKenzie of Luton]

My Lords, Amendment 95 would preclude Clause 23 coming into effect until a report had been prepared and submitted to both Houses of Parliament on the effects of the proposed transfer of responsibilities to the Land Registry. In doing so, I shall say more widely why we consider the proposals for the local land charges register to be misguided. We do not object to government Amendments 97, 98 and 99, which are yet to be moved, and we support Amendment 95B tabled by the noble Lord, Lord Greaves.

When we debated the issues of local land charges in Committee, it was very much in the shadow of a parallel proposition concerning a new delivery company for the Land Registry which was widely believed to be a step along the way to the privatisation of the service. The proposals for local land charges were seen as part of a strategy to fatten up the Land Registry to make it a much more attractive commercial proposition. However, just before our Committee deliberations, the Government announced that the Land Registry model would not be changed “at this time”. In the words of the Minister, there would be no change,

“for the rest of this Parliament”.—[Official Report, 15/7/14; col. GC 242.]

We accept this assurance, but it does not go very far; it takes us until only next May.

While our analysis of why the Government are misguided in their proposals for local land charges stands separate from this thread, we would be foolish to disregard the revival of that privatisation risk, should the coalition get its chance. We note that the departure of the current Chief Land Registrar has been announced. What can the Minister tell us about successor arrangements: does a change of leadership signal a different approach? Will the Minister share with us the terms of the job advert and whether it will be part of the role of the appointee to lead a privatised service? Is the aspiration to appoint someone with a background in the Land Registry or, like the departing chief, with privatisation experience? When is the new appointment expected to be made?

That aside, what the Minister has proposed is that, as part of acquiring wider powers, the Land Registry should take over statutory responsibility for holding and maintaining a composite local land charges register. It would be the sole registering authority for local land charges in England and Wales and the sole provider of local land charge official search results. Unofficial searches would continue as now to be provided by personal search companies. The Government’s rationale for the change includes the supposed benefits of standardisation of fees and format of results, improving processing times and our international rating for registering properties and supporting the Government’s Digital by Default agenda.

The Government have consulted on these proposals and have drawn significant opposition. This has come from the Law Society, the Chartered Institute of Legal Executives, the Local Government Association, the District Councils’ Network and the Local Land Charges Institute, as well as from private search companies from the SME sector. An important consideration is that the Government are arguing the benefits of a centralised approach, but they are actually creating further fragmentation.

Local authorities currently have responsibility in respect of two local searches— the local land charges searches and what is known as CON29. The former is divided into 12 parts and includes registering charges or encumbrances to property arising from such matters as planning conditions, Section 106 agreements, tree preservation orders, listed buildings and the like. The information on these charges is included on the register as and when the documentation which creates the charge arises. Such charges might originate in a range of council departments and it is the job of local land charges staff to update the register as soon as notified. Staff also help resolve queries where, for example, property descriptions are imprecise.

CON29 searches have been in operation for about 50 years. They are a non-statutory list of questions agreed between Government, local authorities and the Law Society. They cover a wide range of matters which may affect a potential purchaser of property, such as any pending planning applications, whether the area is about to be declared a conservation area, or if the access road is adopted. These are prospective matters which might affect somebody’s enjoyment of a property. There is no register as such but responses are provided when requests are made. Information may be held in a number of different council departments or, in the case of two-tier authorities, in different authorities.

The task of the local land charges staff is typically to peruse local information sources, including council reports, to keep abreast of developments. Local knowledge is vital and the District Councils’ Network has expressed particular concern that insufficient weight has been given to this. At present, there are 20 million entries on the local land charges register, with 65,000 changes being made each month. We also know that, for some 92% of searches, the inquiry is in respect of local land charges and CON29 searches together. The proposition is for the local Land Registry to receive updates from some 350 local authorities for incorporation on to their sole register—covering only local land charges. CON29 searches would be left as now, with local authorities. It was the intention that the Land Registry would take over both elements but, as the Local Land Charges Institute pointed out, years of trying to work out how this could be accomplished have apparently proved fruitless—unless the Minister could tell us by when these proposals could proceed. It is expected that CON29 searches will be undertaken by the Land Registry. What work is currently being undertaken to this effect?

As far as local land charges are concerned, we have no knowledge as to how often the information received from local authorities will be incorporated on to the register, the process for doing so and the format in which the information is to be supplied. What consideration has been given to data cleansing? When will there be a delivery plan for what the Government propose? What are the expected transitional arrangements in respect of local land charges? In arguing for centralisation, the Government have made much of the varying state of digitalisation of the land charges provision of local authorities. A range of different systems is apparently used by local authorities. Have all these to be standardised—presumably to a new system—before there is any transfer of the local land charges register to the Land Registry? Who is to bear the cost of this? Will it be a new burden on local authorities? Will local authorities be recompensed for investment made to date? Should they put on hold any planned new investment to digitalise their system? How is the Land Registry to cope with all this when they are in the throes of instigating complex online applications and automated processes in respect of their existing business?

The Government have also made much of the variable response times and charging arrangements of local authorities. Responding to the Government’s consultation, the Law Society stated that solicitors were broadly satisfied with the process of obtaining local land charges and other search information. They suggested that there were other issues—for example, consistent processes for discharging charges—which might be more beneficial to conveyancing arrangements.

As for lawyers’ irritation with turnaround times, they point out that the research related to the entire conveyancing process, not just the local land charge information. They say that variation in turnaround times will obviously be affected by the number and the nature of queries in each case. Of course, there will be no overall impact on turnaround times in circumstances where the later piece of the jigsaw is the CON29 process. A recent survey indicated that turnaround times for 96% of local land charge-only searches is less than 10 days, with three-quarters being returned in five days. There may be those outside this range, but surely the focus should be to help the minority of councils improve rather than turn all existing arrangements upside down. As for the variation in the level of charging, it is difficult to believe that it is the most important issue in the conveyancing process, but in any event there was a standard charge until the mid-2000s and there is no inherent reason why that could not be reconsidered for the future.

Where does this leave local authorities? The LGA expressed its opposition to this because it will leave councils with the expense of adjusting systems, breaking existing contracts and paying redundancy costs. The LGA is concerned that the longer-term cost to councils of compiling, checking and verifying data has not been properly accounted for. Of course, some local land charge staff have other duties as well, such as electoral registration, and the knock-on costs of staffing issues need to be considered. As part of this, it is planned to uplift all the existing local authority land charges register to the Land Registry for free, at a time when the Land Registry is seeking wider powers to market services. Has any value been placed on the local authority databases?

Unless there are clear plans to encompass the CON29 process into the arrangement, and there seems to be no prospect of that, all that is on offer from this proposition is a worse service and disruption to the existing arrangements. While there is always room for improvement—and the service has improved, on the testimony of those who use it and know best—why on earth fix something that is not broken and for which there is no support?

Despite the engagement of some local authorities in pilots to see the how this might work—seemingly Merton has not volunteered for this—it is obvious that there is no clear implementation plan and no comprehension of what this will mean for local authorities. These proposed changes to a vital service—vital to the health of the property market—should not proceed unless and until these matters are sorted out. I beg to move.

[Lord Greaves]

My Lords, I tabled amendments in this group on Monday. Had the noble Lord, Lord McKenzie of Luton, put down his amendment a day earlier, I would simply have added my name to that because it covers the issues.

My interest in local land registers is very recent—a matter of days. This part of the Bill was drawn to my attention by my council officers and particularly by Richard Townson, the democratic and legal services manager, who gave me a quick tutorial. I am not terribly upset that I did not become an expert in the subject a lot earlier, but needs must. I have a number of questions that the Minister may not be able to answer today, but if he cannot, I would be grateful for a reply in writing. I am aware that I should have made this speech in Grand Committee, but as I said earlier today, I was not available for House of Lords duties at the time.

The national Land Registry deals with the register of title—ownership issues—and does not go beyond that. We are told that it is run extremely efficiently and that is certainly my experience of using it. There are then local land registers that tell you that charges on a particular parcel of land exist. Those charges may be a requirement to pay money to someone, but most of them nowadays are constraints on the use of the land due to planning decisions or highways decisions.

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I hope that I have been clear, if somewhat detailed, in my response. I will read Hansard and, if there are questions that I have not answered, I will write to noble Lords. Based on the clarity which I hope I have provided on some, if not, all the questions that were asked, I hope that the noble Lord, Lord McKenzie, will be minded to withdraw the amendment.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for his reply and the noble Lord, Lord Greaves, for his contribution. I say to the noble Lord, Lord Greaves, “Welcome to the world of local land charges”. He has mastered his brief on that subject, as he normally does, and asked an entirely pertinent series of questions. We have had answers to some, but not all, those questions. The noble Lord stressed local knowledge, which is absolutely key to this.

I do not think that the Minister dealt with the key point that what is proposed to happen will be a fragmentation of a service. We know that currently most people undertake searches of CON29 and local land charges together. It is proposed to peel part of this off to the Land Registry, while the rest stays with local authorities. That seems to me to be the makings of a worse service, not a better one. We await very important information, certainly around the value of the database that local authorities have, which is to be taken over. The noble Lord reiterated the point about privatisation but did not deal with the point about the remit of the successor to the current chief of the Land Registry, the process for which is now under way. Clearly, if it is intended that the service be privatised, the service will be looking for someone with different qualifications from someone who will just administer the register as it is.

There is a beguiling issue about it all being digitised and all on one platform. That looks aside from the complexities of how it will be done and whether it is possible to get there with 348 authorities undertaking their daily work with some 60,000 entries each day. That really has not been addressed. We know that the process is struggling and has effectively given up on trying to take in CON29 as part of it. There are many unanswered questions. I am sure that the Minister will, as usual, be very diligent and look at the record and follow up where we have not had answers tonight. In the mean time, I beg leave to withdraw the amendment.

Amendment 95A withdrawn.

Infrastructure Bill [HL]

Lord McKenzie of Luton Excerpts

Tuesday 15th July 2014 Grand Committee

[Lord Jenkin of Roding (Con)]

My Lords, my noble friend will recollect that I raised this point at Second Reading on 18 June at col. 856. I will not repeat what I said on that occasion, or indeed on the very important points that my noble friend Lord Tope has just made.

The Minister was as good as her word and replied to the points that she did not have time for when she responded at Second Reading. She wrote to me on 1 July about the points I had raised, including this one, which she headed “Mayoral Powers”:

“Government officials and the Greater London Authority are in ongoing dialogue to agree suitable ways to transfer public sector land in London. If amendment of legislation is required, we will explore this at an appropriate opportunity in the future”.

It is a long time since I have felt that I was pushing at a door that is not only half open but almost entirely open. I hope my noble friend will be able to give us a little more information this afternoon.

The need for housing, particularly affordable housing, in London is acute. There can be very few couples —potential homeowners—under the age of 35 or thereabouts who feel that without significant parental help, or whatever else might be available, they will ever be able to buy a house. Part of the reason for that is the shortage of building land within the Greater London area and in the area immediately surrounding it. The disposal of surplus public land has become a matter of huge urgency. I believe, as my noble friend has said—and he quoted the noble Lord, Lord Best—that the Greater London Authority has this whole issue very much in mind and on its whole agenda for the development of London. The case for it to be the body to initiate, promote and encourage this is very strong indeed and I hope my noble friend the Minister will be able to give us an encouraging answer this afternoon. I support the amendment moved by my noble friend Lord Tope.

[Lord McKenzie of Luton (Lab)]

My Lords, I congratulate the noble Baroness, Lady Kramer, on her extended role during the course of this Bill and indirectly congratulate the noble Baroness, Lady Stowell. The amendment moved by the noble Lord, Lord Tope—for the GLA to perform the role of disposal agency in London—on the face of it makes very good sense. As the noble Lords, Lord Tope and Lord Jenkin, said, the HCA’s objects simply do not run in Greater London as a result of the Localism Act 2011, and without a change you would have to retain the arrangements where transfers are made indirectly.

I took the opportunity to raise the matter with the Bill team, who have sent me a helpful note, which, if I may, I will just read from:

“I have been advised that under the Localism Act 2011, the GLA has responsibility for the HCA functions in London and the HCA does not have a remit to operate. The HCA has powers to operate in London but to do so would require delegated authority from the mayor. Under existing legislation, central Governments can transfer their land directly to the GLA; arm’s length bodies can also presently do so but would have to transfer the land to the parent department first”.

That is the inefficiency we are trying to tackle with this provision. The note goes on:

“DCLG are working with the GLA to determine what offer the GLA would be able to make to departments regarding land transfer. This will include whether statutory transfer is the most appropriate mechanism or whether an alternative approach is preferable”.

Could the noble Baroness just unpick that expression a little? Whatever arrangements are to be entered into, it does not seem to me to preclude supporting the amendment of the noble Lord, Lord Tope.

We have had a helpful briefing from the Mayor of London, which raised a number of points. The point about the GLA having to hold its land in a taxable subsidiary company would appear to have been addressed by government amendments, but there was also a point about transfers of land from the GLA, a mayoral development corporation or the HCA hitherto not having been able to pass on the override of third-party easements. This means that such owner-developers could be pursued for remedies by the previous owners and beneficiaries of such rights. Given that Clause 22(10) is to operate only where land is disposed of after the provision comes into force, how does the Minister see this point being addressed?

[The Minister of State, Department for Transport (Baroness Kramer) (LD)]

My Lords, it is a pleasure to stand here in the place of my noble friend Lady Stowell. I join the congratulations to her on her new role and apologise for the disappointment of noble Lords who were looking forward to debating these issues with her today. I will have to do for today’s purposes.

The public sector land programme aims to speed up the disposal of land and put disused land back into use for much needed homes. The current public sector land programme has identified land with capacity to deliver 100,000 new homes by March 2015. At the end of March 2014, it had released land capable of delivering more than 76,000 homes. As we move forward with the programme, we are aiming to reduce the bureaucracy involved in transferring land to the HCA and to speed up delivery of much needed homes and economic development.

The GLA has a pivotal role in delivering housing and economic growth in the capital, as my noble friend Lord Tope illustrated, and we are working with it to consider how its expertise can best be utilised in the disposal of surplus government land. In some cases, this may mean transferring sites from central government bodies to the GLA. Although the original clause, which is the one currently in the Bill, did not mention the Greater London Authority, we agree that there may be some benefit to exploring whether it should be included in the clause. There is an existing transfer process, but this might smooth the process of transferring sites from arm’s-length bodies to the GLA. There would need to be an agreement between the Government and the GLA that this is the best delivery mechanism for individual sites and the one that provides best value to the taxpayer.

One alternative, for example, would be to purchase land directly from the Government or their ALBs. All this needs further discussion and exploration with the various parties, and we need to work through whether there are stamp duty implications or other factors. Some resolution will be required before we can come to a definite decision on that process. We have been working closely with the GLA on the land disposal programme, as we will continue to do, so that we can work out how surplus public land can be better used to support housing and economic growth, alongside finding efficiency savings. We recognise what the noble Lord, Lord McKenzie, said—

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[Baroness Kramer (LD)]

The noble Lord, Lord Jenkin of Roding, makes clear that there are complexities in all this. We do not have set levels of affordable housing. That has to be for the local authority. It is best placed and will undoubtedly use its planning processes, which of course apply to any development, to make the relevant determinations. He is right that there are complexities that we have to iron out and work our way through. I just want to alert the Committee and to say that we are sympathetic to the underlying direction of this amendment, but there is work to be done to know whether this is the most effective way to achieve what I think everyone here is attempting to achieve.

[Lord McKenzie of Luton]

Will the Minister expand on what she said because I am not quite following? I can see that there may, in differing circumstances, be details to work out as to how particular parcels of land are put together and how they end up for the benefit of housing in London. But this amendment would simply include the possibility of the GLA being the beneficiary of a Secretary of State’s scheme. The Secretary of State does not have to enter into a scheme under these provisions in all circumstances. I am struggling to see why the amendment could not be accepted. It would not be mandatory. It would just be one route. If it is not picked up in this Bill, I wonder when it will be picked up by another local Bill coming down the path. I am struggling to see the logic in not making this adjustment.

[Baroness Kramer]

I say to the noble Lord, Lord McKenzie, that I will go back to the department and ask whether we can share any of that without disrupting the process of negotiation. I am sure that we would be willing to share those thoughts. This goes beyond my direct area of expertise and I would not want to mislead the noble Lord by taking him in a wrong direction. We will try to provide that clarification. The one thing that everyone here would be concerned about is making sure that it does not disrupt a negotiation process that would come to the conclusion that we are all seeking; that is, the efficient transfer of land to make sure that housing is made available at the earliest possible date.

I will be happy to work with your Lordships. The department is working with the GLA to consider whether these amendments would be beneficial or whether a somewhat different form is needed to deliver that public sector land programme in London. With that assurance, I hope that my noble friend Lord Tope will feel able to withdraw his amendment.

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Moved by

[Lord McKenzie of Luton]

84A: Clause 21, page 22, line 21, at end insert “or local authorities”

[Lord McKenzie of Luton]

My Lords, this is a probing amendment and it has been suggested to us by the Local Government Association. The purpose of the amendments in this group is to allow one or more schemes for the transfer of designated property rights and liabilities to local authorities, as well as to the HCA. The LGA is clear that local councils share the Government’s focus on using publicly owned land to support housing development, and it suggested that councils have a programme to release, between 2015 and 2018, assets amounting to some £13.3 billion.

Apparently a number of councils have undertaken the pooling of their land assets with central government, and such activities could be facilitated if such assets could be transferred to local authorities rather than via the HCA. The LGA says that it has recently been asked by the Cabinet Office to help to transfer to local councils some 3,000 separate land and property assets held by government departments and agencies. These range in size and value and could be packaged for transfer. Would not these situations lend themselves to the types of schemes envisaged by Clause 21? Otherwise it would presumably involve the HCA as an intermediary.

There is a question of whether all local authorities would automatically be able to override relevant rights and restrictions on users and to secure these for third-party purchases. Doubtless the Minister will be able to help us on that. We may need to do more work on this before Report, but this is surely worth developing as a concept and I am interested to hear the Government’s position. I beg to move.

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As I say, we will explore the issues that are raised in this amendment; I will take it away and consider further whether we should extend our clause to include local authorities or whether an alternative route would be more effective. With that, I hope noble Lords will feel able to withdraw the amendment.

[Lord McKenzie of Luton]

My Lords, I am grateful for that response; frankly, it is more generous than I had anticipated. I accept that it is not an acceptance of the amendment, but it is an acceptance that it will be taken away and looked at seriously. The amendment was not designed in any way to diminish the role of the HCA; we see the importance of it.

I was not quite sure—perhaps this is something that could be looked at when the amendment is being otherwise addressed—of the extent to which local authorities are always able to pass on the benefit of easements that they have. Obviously, that is quite important for the development of process.

I am grateful to all noble Lords who supported the probe: my noble friend Lord Smith and the noble Lords, Lord Tope and Lord Jenkin. I think that the noble Lord, Lord Jenkin, told us that he was the chair of a housing committee 50 years ago. I remember that when I was first on my council I could not get on to its housing committee as it was seen as being quite senior. Committees in those days were made up of executive members; I think I was on the council for 10 years before I was given a sniff of it. Having said that, I am grateful for the Minister’s response and beg leave to withdraw the amendment.

Amendment 84A withdrawn.

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Moved by

[Lord McKenzie of Luton]

85B: Clause 21, page 22, line 24, at end insert “provided that any designated property, rights or liabilities to be transferred pursuant to a scheme—
(a) have been classified as surplus;(b) do not comprise land forming part of a common, open space or fuel or field garden allotment; and(c) do not extinguish any public rights of way.( ) “Common”, “open space” and “fuel or field garden allotment” have the same meaning as in section 19 of the Acquisition of Land Act 1981.”

[Lord McKenzie of Luton]

My Lords, I shall speak also to Amendments 86, 87 and 88, while my noble friend Lady Royall will address Amendment 89 in particular.

We are supportive of the thrust of the arrangements to ease complexity, bureaucracy and cost in marshalling surplus public sector assets, but we accept what the Government have asserted about land held by existing arm’s-length bodies not being capable of being transferred directly to the HCA and the fact that this could be addressed by one or more schemes to transfer property to the HCA from a specified public body. The need for this is obviously bolstered by the Government’s plans—as we have just discussed—for the HCA to be the centralised disposal agency for surplus public sector land.

In their Accelerating the Release of Public Sector Land report of October 2011, the Government estimated that 40% of land suitable for development sits with public sector—both central and local government—land banks. Our amendments are a way of seeking reassurance. Other than transfers being capable of being made directly to the HCA, it is understood that there will be no change to the type of assets otherwise to be involved and no change to the decision-making or approval process. In this regard, perhaps the Minister will just remind us what the process actually is—in particular, the process by which land is regarded as surplus.

Amendment 85B was proposed to us by the Open Spaces Society. The society is concerned that, whatever the warm words of the Government about the specific and limited application of Clauses 21 and 22, they are written in very broad terms. Under Clause 21, a “public body” means,

“a person … with functions of a public nature”.

It is true that they have to be specified in regulations but they are regulations that are currently just subject to the negative procedure. The assurance from the Minister thus far is that only surplus land can be subject to a scheme, but the term “surplus” does not appear in the clause.

Amendments 86, 87 and 88 do no more than put in the Bill what the Government have already said to be the case, and it is difficult to see why these amendments would not be accepted.

There are other matters requiring clarification. So far as the easements affecting land are concerned, perhaps the Minister will confirm that the power to override third-party rights exists with the HCA, local authorities, the GLA and the Mayoral Development Corporation. Is it correct that this power of override can be exercised after land has been sold but only by those bodies—that is, that a third-party private sector purchaser of land would not be able to initiate such overrides? Can the Minister also say a little about how the tax provisions are intended to work? Presumably they are to avoid spurious tax charges arising from the scheme transfers, given that the nature of the scheme is by way of an “internal” reorganisation of assets. However, will each of the specific public bodies be non-tax-paying entities, and what is the intent regarding assets acquired from the HCA? On what basis will someone acquire those assets?

There is a wider issue concerning where value will accrue under the transfers. Will it be in the Treasury? If the scheme means that transactions are bypassing the parent department, how is all this to work? I beg to move.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I wish to speak to Amendment 89. I apologise for not having spoken at Second Reading but I am grateful to my noble friends Lord Adonis and Lord McKenzie of Luton for raising the issue of the public forest estate at that stage. The response given by the Minister did not assuage my fears or those of people up and down our land who are concerned about the future of this most precious of our assets.

Subsequently, the noble Baroness, Lady Stowell of Beeston, who of course is now Leader of the House, replied to a Written Question that I had tabled about the future of our public forest estate. Very strangely, I read the answer to the question as a government press release in response to concerns expressed about the Infrastructure Bill, and that was before I received an Answer from the noble Baroness. I should be grateful if the Minister could explain why that was the case.

I do not wish to detain the House with too many details about the chequered history of this Government’s approach to public forests and woodlands. Following the shameful Public Bodies Act, which would have enabled their sell-off, the Government, to their great credit, established the Independent Panel on Forestry, which, under the chairmanship of Bishop James, did a splendid job. Once the report was published, the Government said that they agreed with the recommendations and would be bringing forward a Bill in due course. Very sensibly, they spoke of draft legislation that would enable pre-legislative scrutiny and have the input of the wonderful grass-roots organisations throughout the country which rightly campaign on these issues.

However, here we are, two years after the publication of the final report of the panel, and we have not seen any draft legislation. I hope that the Minister will not be reduced to saying that that was because of pressures on the parliamentary timetable because, frankly, neither I nor thousands more will believe her. While Defra’s responsibilities are great, it promises only one piece of legislation this Session, which is a draft yet to be published. It is therefore not a wonder that people are both anxious and lack trust.

The case for sustaining and expanding our public forests and woodland was superbly made by the independent panel and endorsed by the Government. The social, environmental and economic opportunities that they can deliver are myriad. In my community, the forest is so much an integral part of our life, our culture and our heritage that we are called Foresters. The catalyst for the amendment is the fact that, whatever the Government’s policy may be, the Bill is capable of having an impact on the public forest estate.

At Second Reading, the Minister, the noble Baroness, Lady Kramer, said that these provisions,

“will not be used by bodies such as the Forestry Commission or National Parks, contrary to some recent, wholly unfounded, speculation”.—[Official Report, 18/6/14; col. 840.]

Will the Minister explain in greater detail why it is that they will not be used by the Forestry Commission? What safeguards are in place to ensure that that does not happen?

My noble friend Lord McKenzie mentioned surplus. At Second Reading, the noble Baroness said:

“The measure that we discussed for the HCA is about transferring surplus land from government agencies. The public forest estate and our national parks are in use; they are therefore not surplus and none will therefore be transferred to the Homes and Communities Agency”.—[Official Report, 18/6/14; col. 899.]

Will the Minister help us by narrowing the definition of surplus? From the statement that I have read out, it is not at all clear what would need to happen for land to be considered surplus and then be subject to the provisions in Clause 21. It would also be useful if the Minister could say what would need to happen for land described as “in use” to cease to be thought of as in use.

My concerns extend beyond that. By virtue of the Housing and Regeneration Act 2008, the HCA, and any other person, has an existing right to undertake works on and to use land of the HCA, even if it involves interference with an easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land. The Infrastructure Bill proposes to extend this power to,

“land which has been vested in or acquired by the HCA”.

The effect would seem to be that the power to override easements and so on is granted to successor owners of the HCA. It is my view and fear that freemining—ancient rights and privileges granted to Foresters by Edward I—could be caught by Clause 23 because it certainly falls within easement, liberty, privilege, right or advantage. Compensation would be payable in appropriate circumstances but this is little comfort to those who wish to protect our traditions and cultural heritage, who work the mines and want to maintain the right for future generations. I should be grateful for the noble Baroness’s view of the implications of this Bill for freemining. If the amendment were accepted and the public forests exempted from the provisions of the Bill, the threat would fall away.

We are told by the Government, in their response to Recommendation 27 of the Independent Panel on Forestry, that land transactions within the public forest estate are to be subject to the overriding principle that they would be in the further interests of the public forest estate. They said:

“We agree with the Panel that the new body should be able to buy and sell land where this serves the core purposes of the organisation and delivers public benefits. We also agree that major projects and land sales should be consulted upon, but do not want to fetter the commercial freedom of the new body by requiring it to consult on each and every proposal. One of the roles for Guardians might be to ensure that any significant projects and land transactions proposed by the management body are in line with the remit and interests of the Public Forest Estate”.

The Housing and Regeneration Act 2008, which the Bill proposes to amend, is based on fundamentally different concepts from this principle.

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[Baroness Kramer]

My Lords, first, I am sure that no discourtesy was intended to the noble Baroness, Lady Royall, over the timing of the letter that was sent. I cannot quite explain the sequence but I know that, in trying to co-ordinate the numerous questions that came to us following Second Reading, we tried to make sure that we had covered everybody’s questions and answered them fully, which may have delayed putting our responses in the post by a day or so. Therefore, I apologise if she was concerned by that.

The public sector land programme is about bringing disused land currently owned by central government back into better economic use, not about selling or building on community assets enjoyed by local communities. It is a continuation of our current programme, where we are on track to dispose of disused land with capacity for 100,000 homes. This clause is not about new policy, but merely the introduction of efficiency into the mechanism.

Surplus land can and already does transfer to the Homes and Communities Agency, but the process is more bureaucratic than is necessary. This clause is simply about increasing the rate of delivery by accelerating internal government procedures. The proposed amendments would actually slow down the process by adding further bureaucracy. For that reason, we would resist this amendment because our goal is to increase efficiency in this process, not to slow it down further.

On the issue of surplus land, it is important that land can transfer to, for example, the HCA while it is still in operational use but a decision has been clearly made that it will no longer be needed beyond a certain point. The HCA would then be able to start remediation works and marketing in parallel with the wind-down of operational activity. This minimises bureaucracy and ensures that we are making best use of our land at all times. Questions have arisen about the word “surplus”. There is not a definition in that sense because property-owning departments and arm’s-length bodies are expected to review their landholdings regularly to identify potential for rationalising their estates. When a landholding is no longer required by government, it is not just surplus to our requirements and there is no hard-and-fast definition of surplus beyond this because it varies so greatly from department to department and use to use. It is for individual departments to decide why they no longer require a piece of land.

I assure your Lordships that it is not possible for the Homes and Communities Agency to transfer land from other public bodies without the consent and co-operation of the transferring department. The transfer is direct but all statutory transfer schemes to the HCA must be signed by a Minister of the Crown or a delegated representative. Therefore, only land that the transferring public body has identified as surplus to its requirements will be transferred. This is standard government business and the noble Baroness will have been very used to this process when her party was in government. There is nothing new or different about the way in which it is being handled.

As I said, the clause is about accelerating internal government processes to transfer surplus land so that it can be disposed of more quickly and effectively for appropriate development. It does not override existing planning policy or community rights. The Government fully appreciate the importance of amenity land to both nature and our communities. Common land is central to our national heritage and we value it for agriculture, recreation, nature conservation, landscape and its historical and archaeological significance.

Public rights of way in the country are the primary means by which people access the countryside and engage in outdoor recreation, which in turn promotes improved health and well-being, as well as sustainable transport. Our amendment will not affect public rights of way. Normal planning procedures will apply to protect open spaces and other amenity land. The National Planning Policy Framework makes clear that open space should not be built on unless it is surplus to requirements, can be replaced or the benefits outweigh the loss. Planning policies should also protect and enhance public rights of way and access. Where the Homes and Communities Agency owns such land, it seeks to transfer it to the local authority or other community group to continue to manage the land for the community. It is also worth noting that the Homes and Communities Agency often facilitates the creation of new open spaces, allotments and amenity land, which over time become an important asset to the community.

I will talk more directly about the public forest estate in response to the amendments that address this and which are intended to prevent the transfer of land from the public forest estate to the Homes and Communities Agency. We made clear our policy on the public forests at Second Reading and again in the letter that we provided to the noble Baroness, Lady Royall. The forest estate is not for sale and we will not transfer the public forest estate to the Homes and Communities Agency.

The noble Baroness, Lady Royall, asked about future Governments. Future Governments have always been able to make their own decisions, and this Parliament could not prevent their doing so. We can give an absolute assurance about the position that this Government take. Were she in government, she would have to make that decision on a democratic basis for herself.

In my published response to the Parliamentary Question from the noble Baroness relating to Clause 21, I said:

“Clause 21 of the Infrastructure Bill is completely unconnected to the Government’s stated policy to establish a new public body to hold the Public Forest Estate”.—[Official Report, 30/6/14; col. WA 214.]

The Government have no intention of transferring land from the new body to the Homes and Communities Agency, as the public forest estate is currently in use and not declared surplus. As such, the powers will not be used in relation to this body and will therefore have no effect on it.

I also refer to our forestry and woodland policy statement, published in January 2013, which built on the recommendations made by the independent panel on forestry, chaired by the then Bishop of Liverpool. It confirmed that the PFE will continue to benefit from public ownership. Nothing has changed. We remain committed to this and are continuing to work closely with stakeholders.

I believe that we shall have a discussion on the group that begins with Amendment 91A which will address some of the issues of easements. Just for the purposes of the issues that were raised by the noble Lord, Lord McKenzie, third-party purchasers will be able to override easements in any land sold by the HCA, the GLA and the MDCs, the mayoral development corporations. That has always been clear from this legislation.

[Lord McKenzie of Luton]

I apologise for intervening on the Minister but I wonder if we can clear that up, as it is before us. Did she say that third-party purchasers can override those easements?

[Baroness Kramer]

I think that a better way to express it is that where they have been overridden by the HCA, the GLA and the MDC, they are sold, as it were, with the override in place. I believe that that is correct; I will write to the noble Lord if it is not, but that is my understanding of the situation.

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[Lord McKenzie of Luton]

I am grateful; that is helpful. It is what I understood the position to be likely to be—that third party purchasers could not create those overrides.

[Baroness Kramer]

That was the issue at dispute. My understanding is that they cannot create. I am now looking for some clarification on this so that I can come back to the noble Lord with a more correct answer. I just have a note that says, “If Clause 22 goes ahead, they will”. I believe that we are going to address that under Amendment 91A, in which case I may be able to give the noble Lord a more substantive answer shortly. If not, I will ensure that he gets complete clarification on this issue.

On the tax issues that the noble Lord raised, tax provision to produce a tax-neutral result will be made in secondary legislation under new Section 53B. Again, we can provide more detail on that than I have at my fingertips at this moment.

To return to the heart of Amendments 85B, 86, 87, 88 and 89, we believe that the necessary safeguards are in place to ensure that land transfers only when agreed by the Secretary of State and when the transferring department has deemed the land to be surplus to its requirements. The clause sits within the wider planning framework, which offers sufficient safeguards to protect any open spaces or other amenity land. For that reason we will resist these amendments, and I hope that what I have said provides some assurance.

On the Edward I freemining rights, we will indeed follow up in writing. I confess that that is beyond my general knowledge of these issues, so this may be the most helpful way to provide that information to the noble Baroness, Lady Royall.

[Lord McKenzie of Luton]

I am grateful to the Minister for that detailed response. I accept that there are some points on which we shall have some follow-up, particularly on easements. On matters of tax, the particular point I sought to probe was: at the point when the land goes from the HCA—or the GLA, if that is what it is—to a private sector developer, what is the basis on which it acquires that land? Is the developer thereby getting a tax break? Is the value of its land uplifted or is it reduced somehow? I do not expect the Minister to deal with that in detail today but I would be grateful if there could be some follow-up on it. We accept the assurance that there will be procedures in place to make sure that the owning department will have to sign off on any transfer and that it would only be surplus, as the Minister described.

[Baroness Kramer]

Perhaps I might make a small correction for the noble Lord, Lord McKenzie, because I want to be absolutely clear on this point. It would be a Secretary of State, a Minister or somebody delegated. Because the Government act as a whole, I cannot guarantee to him that the owning department would necessarily provide that signature but I will look for clarification.

[Lord McKenzie of Luton]

I am grateful and perhaps we could have some follow-up on that as well, if necessary. I also accept that the different approaches to when land is identified as surplus mean that it may be difficult to have an all-embracing definition in the Bill.

However, that leaves two issues around the forest estate, which my noble friend Lady Royall spoke about with a great passion, as indeed did the right reverend Prelate the Bishop of St Albans. Given the generality of the assurances that the Minister has given, is there not the possibility that we could at least have something specific in the Bill in relation to the public forest estate, as an example of where it simply will not be transferred? That would ease the genuine concerns of many who are not happy about the broadness of this clause as it is drafted. Could that, at least, not be included in the Bill? We accept that there are issues around surplus and the processes of transfer.

[Baroness Kramer]

I apologise for bobbing up constantly but the noble Lord will understand that I am trying to catch information as rapidly as I can to ensure that we do not leave him with an inaccurate picture. In terms of that sign-off to which I referred a few moments ago, if the land is surplus, it is the Minister for the DCLG who provides the signature in all cases. It is important that I share that, rather than leaving the noble Lord misinformed on this issue.

[Lord McKenzie of Luton]

We need to think about that. Is it the Minister for the DCLG in all cases, wherever the land was originally owned or used and whichever department it was?

[Baroness Kramer]

That is the understanding that has just been passed to me.

[Lord McKenzie of Luton]

I am grateful for that. It is news to me but it is helpful to have it. I should like to press again on the issue of the public forest estate and why that cannot be specifically included as an exemption from the operation of these clauses. I am sure the Minister will recognise that that would ease the very real concerns that have been raised. She may say that those concerns are unnecessary, given the assurances that have been provided, but notwithstanding that, there would be clarity and certainty in the Bill. What is wrong with that?

[Baroness Kramer]

My Lords, I feel that at this point we have given real clarity on this issue. As I say, this mechanism simply makes more efficient a process that is currently in place. The assurances that stood yesterday and stand today are the assurances that will stand tomorrow, and it seems to us that those are clear and unequivocal. We therefore cannot see what is gained by putting this into the Bill.

[Lord McKenzie of Luton]

My Lords, we have reached the stage where it is necessary to withdraw the amendment but I cannot believe that we will not return to this matter at a later stage. I beg leave to withdraw the amendment.

Amendment 85B withdrawn.

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Moved by

[Lord McKenzie of Luton]

90: Clause 21, page 24, line 4, leave out paragraphs (a) and (b) and insert “after subsection (7) insert—
“(7A) An instrument containing (whether alone or with other provisions) regulations under section 53A(2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(7B) An instrument containing (whether alone or with other provisions) regulations under section 53B may not be made unless a draft of the instrument has been laid before and approved by a resolution of the House of Commons.””

[Lord McKenzie of Luton]

My Lords, this is a straightforward amendment that would require the regulations specifying public bodies to be subject to the affirmative procedure. These provisions are focused on identifying which public bodies’ assets can be the subject of a scheme for transfer to the HCA. In other amendments, we have just discussed the sensitivity around these schemes, which should be clear. The affirmative procedure is still limited but it seems to us that it should apply, at the very least on the first use.

[Baroness Kramer]

My Lords, I gather from general conversation that there are many arm’s-length bodies—certainly several hundred of them. A process whereby adding them or subtracting them from a list would require affirmative actions in your Lordships’ House and the other place seems excessive, frankly, when the whole purpose of this is to speed up the process of land disposal and ensure that appropriate developments can happen quickly. Maximising the release of surplus public sector land is critical to support our ambition to reduce the deficit and, even more importantly, increase the number of homes being built.

We are already releasing surplus public sector land under the current public sector land programme, and have an ambition to dispose of land with the capacity to build 100,000 homes. The language in the Bill lets us do that better and faster, getting much needed land developed quickly. We already utilise the expertise of the HCA to remediate and market surplus land, and it will continue to play an important role in speeding up development. The purpose of the clause is to eliminate needless bureaucracy and get surplus developable land to the HCA quickly.

An amendment specifying that the regulations about bodies transferring land to the HCA would have to pass through the affirmative procedure would merely slow that whole process down again and defeat the whole point of what we are attempting to do. We are cutting out a middleman, and it is important to resist various attempts to slow this process back down again. Needing a debate in both Houses every time a new set of regulations was made or when names were added to a list would have the effect, frankly, of wasting parliamentary time. There is a process in place that allows for objections to be made if concerns are sparked by any particular change.

The proposed programme is not a one-time programme but a continuing one, and new sites can be identified by departments and arm’s-length bodies. The transfer could come from an arm’s-length body that currently either does not exist or is not on the list because it has not at present identified land to transfer. We really do not want to exclude land because those names are not on the list—we want to make sure that development can happen. This amendment is at odds with the aims of the Bill, and for that reason we ask that the amendment be withdrawn and that it be accepted that these regulations should remain subject to the negative procedure.

As I say, when there are genuine concerns about a body specified in the regulations, the negative resolution procedure allows a challenge to be made and a debate to take place, in either House. The regulations can be challenged and dealt with in that way. In our view, the negative procedure is proportionate and in line with our policy aim to accelerate the pace of land disposal and to remove bureaucracy. I therefore ask that this amendment be withdrawn.

[Lord McKenzie of Luton]

My Lords, I think I am convinced. I beg leave to withdraw the amendment.

Amendment 90 withdrawn.

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[Baroness Kramer]

My Lords, maximising the release of surplus public sector land is critical to supporting the Government’s ambitions to reduce the deficit, increase the number of houses being built and help to drive economic growth.

We have introduced Clause 22 to speed up the process of land disposal and ensure that appropriate development can happen quickly. The ability to remediate and sell surplus public sector land is critical to the supply of much needed new homes. I think this is going to address the question raised a few moments ago: our clause will bring the powers of purchasers of land from the HCA, the GLA and the MDCs into line with those presently enjoyed by purchasers of land from local authorities and other public bodies involved in regeneration and development, such as urban development corporations, when overriding easements. This now picks up the issue that I stumbled upon a few minutes ago.

The ability to override easements is often necessary to the development of a site. It is in the wider public interest that we support development that brings much needed homes and jobs. We have tabled this amendment to ensure that the power can be used as intended by the Greater London Authority. The bulk of GLA land is held and managed by GLA Land and Property. We need to ensure that it is able to use the powers as intended, which is what the amendment will do. I beg to move.

[Lord McKenzie of Luton]

My Lords, I think that I am happy with this. Do I understand that it relates just to dealing with the GLA problem and its need to operate through a taxable subsidiary?

[Lord Jenkin of Roding]

My Lords, while my noble friend is contemplating the answer to that, she wrote to me about this in her letter of 1 July. She said:

“The intention is for the HCA to dispose of its freehold interest on the open market”.

I completely understand that. She said that,

“the HCA retains a strong policy interest in what happens on its land once it is sold to market”.

I think that that picks up the point I raised earlier about the need to ensure that the land is in fact used for purposes consistent with public policy. She continued:

“Where public land can be put to better use—say in supporting the delivery of much-needed new homes—it will transfer to the HCA. The HCA will then typically seek to set the parameters for future development on the land, by obtaining planning consent with the local authority prior to sale, and selling its land with certain conditions attached”—

that is the point that I think the noble Lord, Lord McKenzie, was asking about—

“to ensure that the building carried out on its land is done so in line with public policy (say by specifying the number of affordable homes to be built)”.

That all seems extremely sensible. This is not just bringing land in and then saying that anyone can do anything they like with it. If it is public land already, the question is to get it into use for public purposes as quickly and efficiently as possible, but for purposes consistent with public policy. That seems to be quite right. Can the Minister confirm that her amendment is indeed intended to achieve that?

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[Lord McKenzie of Luton]

I am grateful to the Minister for her explanation. I think that I have got it but I want to make absolutely sure. This amendment deals with the GLA situation but outside that, in the example being pursued by the noble Lord, Lord Jenkin, if there is a disposal to a third party by the HCA with planning permission and all the constraints presumably being in the contract, can the third party purchaser in those circumstances take the benefit of overrides that have been provided by the HCA or a local authority but not create new overrides itself? That is the particular issue that I am trying to get clarity on.

[Baroness Kramer]

Perhaps I might write to the noble Lord, Lord McKenzie, on that issue because I think that I am getting myself caught up in circles, which is not an appropriate way to give him the answers that he needs.

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Debate on whether Clause 23 should stand part of the Bill.

[Lord McKenzie of Luton]

My Lords, there will be a subsequent debate in respect of Clause 24 so I will speak generally to both clauses and pick up any further points in the subsequent debate. Clause 23 transfers responsibility for local land charges to the Land Registry, while Clause 24 confers additional powers on the Land Registry. Neither of these propositions can be divorced from the parallel proposition for a new model of a Land Registry delivery company, which is widely believed to be a step along the way to privatisation of the service.

Just yesterday the Government pulled the plug—at least for the time being and, I am bound to say, not with good grace—by recognising that they would have to give further consideration to the complexity of their proposed new business strategy, including moving complex applications online and automating processes. There were high levels of disagreement anyway with the suggestion that an arm’s-length model would enable operations to be more efficient and effective or that such models would have the right checks and balances to protect the integrity of the registry. While reaffirming that they are moving ahead with the digital transformation, the Government have stated,

“at this time, no decision has been taken to change Land Registry’s model”.

While we should not be under the misapprehension that the threat has gone away, we should recognise that the news, unnecessarily delayed as it is, will come as some relief to the staff and to those who campaigned against the folly which privatisation would represent.

Mr John Manthorpe, a former Chief Land Registrar, has stated in a letter:

“The Land Registry is a successful and highly regarded department of government with a 150 year history. It makes no call on the exchequer and has a 97% customer satisfaction rating … It conducts its business impartially and free from any conflicts of interest. It grants and guarantees title on all transactions so providing the security of tenure and conveyancing machinery on which a stable society depends and without which the property, transfer and mortgage markets could not function”.

I could rest my case for this clause and Clause 24 not remaining part of the Bill at this point. If the Government have to hold back on their proposed plans for the Land Registry because they need to revisit the model to deliver their new business strategy, it is difficult to see how it could possibly take on responsibility for local land charges and more, largely unspecified, powers relating to that. There are some 20 million local land charges registered, with 65,000 updates every month.

There are further detailed arguments that deserve to be heard. For a start, the consultation on wider powers and local land charges was flawed. It was conducted by the Land Registry itself, which clearly had an interest in the outcome. There were concerns that it was overly focused on what would add value to the Land Registry, and that it was undertaken with at least half an eye to privatisation.

The Land Registry proposal is to take over the maintenance and searches of the register of local land charges. It argues that this is necessary because of a perceived lack of consistency and standardisation in the provision of local land charges. The World Bank ease of doing business survey marked the UK down on the ease of registering a business, including the speed of registering and transferring commercial property. This was also prayed in aid of the proposal.

However, the Law Society, in its submission to the consultation, expressed the view that in recent times local authorities and other providers have been producing search results in a timelier and more consistent manner and at a predictable cost. Indeed, the impact assessment noted that there had been annual productivity gains of 2%. The Law Society expressed the view that while there is merit in seeking to create a single local land charge and CON29 service, most practitioners would not regard it as a priority for the Land Registry to address. It says:

“Having more consistent processes for discharging charges … could markedly improve and de-risk the process”.

Dealing with searches is just part of the conveyancing process. The Law Society’s conclusion is that the research conducted by the Land Registry does not demonstrate that there is a problem that needs to be resolved.

It is suggested that the speed of service conducted by local authorities is causing a problem in the conveyancing market. This is despite a recent survey indicating that the turnaround time for 96% of searches that involve only local land charges is less than 10 days, with three-quarters being returned within five days. Searches involving local land charges and CON29 have slightly less speedy performance but, as it is proposed that the latter stay with local authorities, it does not seem that overall search turnaround times will improve.

The District Councils’ Network has expressed concerns at the proposed separation of land charges to be undertaken by Land Registry from CON29 searches, which will remain the responsibility of local authorities. It considers that this fragmentation creates a risk of inconsistency, with the potential for errors and omissions. It says that insufficient weight has been given to the local knowledge that resides with local authorities, which are still generally the originators of the data. Local authorities will still incur costs in collating and supplying data, in maintaining a database and, presumably, for indemnity insurance—when there is no income stream from search fees. It also instances that many local authorities have made recent investments in digitalisation, for which no recovery is promised by the Land Registry.

As the Local Land Charges Institute points out, the original intention of the Land Registry was to take over and maintain the database for local land charges and CON29. However, having studied the proposition for over a year, it decided to abandon the idea. Therefore, as things stand, Clause 23 would mean a fragmented service, with no credible alternative being offered. The Council of Property Search Organisations—CoPSO—offers the view that the sector is currently operating well, with healthy competition. It says that the claimed postcode lottery is illusory and that there is no real problem to fix. Moreover, it suggests that the threat to local authority jobs could result in increased waiting times for searches, with consequent detriment to the housing market.

The Local Land Charges Institute argues: that the perceived problems with the land charge function has been overstated; that such problems as there are can be resolved more simply and with less cost; that the demand for the Land Registry takeover has been overstated; and that the Land Registry has failed to demonstrate a clear understanding of the processes and risks involved in the local land charge function and is proposing a worse service. It says that the Land Registry has failed to demonstrate how it will actually provide the service and that the Land Registry has proposed a number of unsatisfactory business models over the past three years and now proposes to take over only half the service, providing less information to customers than local authorities currently do, leaving local authorities to undertake the more complex work and providing a fragmented service to customers.

The LGA expresses opposition, in particular making the point that the proposals will leave councils with the expense of adjusting systems, breaking existing contracts and paying redundancy costs. It says that over the longer term the costs to councils of compiling, checking and verifying data have not been properly accounted for in the analysis.

The opposition is glaringly obvious from the Government’s own consultation: 94% of respondents do not think that the Land Registry has considered all feasible options and 95% do not support the Land Registry taking over the local land charge function from local government. It is time to think again, as even the Government have recognised on their delivery company. It is time to remove the clause from the Bill.

[Lord Tope]

My Lords, I confess to relative ignorance on the subject of the Land Registry, so I have been trying to understand better. Naturally, I wish to support my Government, and particularly want to support my noble friend the Minister, who has to reply to this. I have a number of concerns, some of which the noble Lord, Lord McKenzie, set out very fully when making his points. Like him, I, too, have had representations from the Local Land Charges Institute and from the Law Society, which have made a number of points to which I am sure the Minister will reply.

Certain things increase my concern. First, of course, this takes functions away from local authorities and centralises them. There are two things that instinctively trigger me as a localist, and I find them difficult. I therefore need to understand better than I currently do, not just what the problem is that we are trying to fix, but what the scale of the problem is, as the Government see it, that makes it necessary to take these functions away from local authorities and centralise them. Throughout history, the experience of centralising does not necessarily automatically lead to greater efficiency, nor does it seem immediately to be in keeping with the Government’s commitment to localism.

On a similar and related point, I have seen several times the awful phrase “postcode lottery” used with reference to the current situation. I hate that phrase; if we put it rather differently, so-called postcode lotteries mean we recognise that different factors apply in different areas and that local people—local authorities, in this instance—are able to determine their priorities, their way of doing things and, for that matter, what charges they wish to set for local services. If that is called a postcode lottery then I am all in favour of it but I would prefer to call it real localism.

My next point was raised by the noble Lord, Lord McKenzie. He referred to the results of the consultation, which came out significantly against the Government’s proposals. That has been dismissed as self-interest. In a sense, that is true; it is pretty obvious that the Local Land Charges Institute has an interest. You can call it a self-interest if you like, but I have to say that the responses to most consultations come from organisations or people with what could be called a self-interest. It just so happens that that self-interest means that they usually know very much more about the subject than most of us do. The fact that they have a self-interest—or, as I would put it, a greater knowledge—certainly does not mean that they are by definition wrong or that their views should be dismissed. Certainly, the context should be recognised.

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[Baroness Kramer]

My Lords, I shall reply first to the comment from my noble friend Lord Jenkin of Roding that the Minister did not meet stakeholders. That was during the consultation period. I think that Ministers often make the decision that they should not distort a consultation by meeting with some particular parties and not others. Meetings have subsequently been put into the diary with both Mr Lester and BIS. As I say, this was a matter of propriety during a period of consultation, as many noble Lords will recognise was necessary.

We have a problem with the local land charge system. At present, each of the 348 local authorities in England and Wales maintains its own local register, and they are kept in a variety of formats. Some are digital but do not use the same digital systems, while many are still paper-based. The fees for searching the register vary from £3 to £96. Since the rule applying here is that the local land charge service should be provided on a cost-recovery basis over a three-year period, it is quite hard to understand why there is that discrepancy and range of difference in pricing. Some of the services respond in a day or so; some take more than 20 days. That has led to the buyer of a property or someone remortgaging a property—who is, in all honesty, probably not that conscious of who their local authority happens to be—not being able to rely on an efficient service in every part of the country. It is, in a sense, a genuine postcode lottery if you are sitting in the position of the person trying to buy a property or seeking to remortgage one. I suggest that we have a serious problem there.

To give the Committee an example, Camden Council is taking 38 days to process searches. You can imagine what that is doing in a process where house prices move while people are trying to get mortgage approvals and are often in chains of buyers. It is clearly jeopardising people’s ability to buy a house. We have had other reports—

[Lord McKenzie of Luton]

I apologise; did the Minister say that it was 38 days for Camden?

[Baroness Kramer]

Yes.

[Lord McKenzie of Luton]

Was that the local land charge search or the CON29 search?

[Baroness Kramer]

My understanding is that it is the local land charge search, not the CON29 search, but we have had reports of problems of varying degrees in Scunthorpe, Erewash, Exeter and Sutton. It is not confined to one particular local authority. Users of this service have said in surveys that only 24% of local land charge search results are returned within a day and only 50% within two to five days. I thought that I had some of the numerous responses from people who use the service and thought it was an incredibly good idea to start trying to centralise it and provide some degree of consistency; if I find them later, I will quote them.

I should point out that the Land Registry’s performance for a similar range of preliminary searches and copy register and copy document services is that over 95% were returned within one day. The Land Registry, in its central form, is exceedingly efficient. It has a flat fee of £3 and most queries are dealt with instantly by online access. I now have the number that I was looking for. I am told that 63% of users were supportive of trying to rationalise and centralise this system. We are living in the 21st century and people expect to be able to access information in the most efficient way, and that supports the property market. If we want to increase the availability of housing, surely that has to be a service that we look at seriously, making sure that it is as efficient as it can be.

In this day and age, it is crucial that public services are available online. The DVLA now processes driving licence applications online, and I see no one calling for us to change that to a system in which in each local community there is a separate application for a driver’s licence through the local authority. It is time for the local land charges system to be modernised and made fit for purpose in a digital era. A single digital register held by a single provider will reduce overheads and eliminate regional variations in the speed, format and costs of the local land charges service. The solution will improve turnaround times to mere minutes and improve data accessibility for the property sector. By reducing overheads, in effect we will make sure that there is a lower fee for the customer, and the standardised process means that the fee will not change based on location.

The poll that I cited a moment ago, conducted by Ipsos MORI, showed that 63% of customers found the Land Registry proposal “appealing” or “very appealing”. Customers want to benefit from a standardised service. They want faster turnaround times, reduced running costs and lower fees. These proposals will make it quicker and easier for people to buy a property, remortgage their home and even, in many cases, start up a business.

The Land Registry has a proven track record in providing digitised information to the public. I say that to provide reassurance that this is a body capable of putting together the system that we require of it. It safeguards almost 24 million registered titles, has a customer satisfaction rate of 98% and already processes around 22 million applications electronically annually. It has extensive experience of digitising registers and a central position in the conveyancing process, as the single largest source of property information. That is why it makes it right for this body to take over the local land charges service.

History shows that this kind of step change to a modern, standardised service, with the benefits that brings to the public, simply cannot happen if the service remains split between 348 local authorities. It will require a single digital register held by a single provider to get that reduction in overheads and eliminate the endless variations in the format—never mind in the costs—of the local land charges service. We of course accept that there is a role for local knowledge; that must be maintained. Therefore, local authorities will continue to be responsible for collecting and updating all the information in the register.

Your Lordships have asked whether we are removing a valuable source of revenue for local authorities by, as it were, leaving with them an element of cost. We are in detailed discussions because we are concerned that local authorities should not bear an undue burden by providing the input that only local knowledge can provide. Local authorities would be responsible for collecting and updating the information in the register, and obviously that should not be an undue burden on them. However, if they came to us and said, “But we’re losing a source of revenue”, we would point out that the rules have made it absolutely clear that this is not meant to be a revenue-raising service; it is a cost-recovery service. Therefore, the argument that there is a loss of revenue really does not hold water, as surplus revenue is not the purpose of the current pricing system.

Some noble Lords asked about CON29 searches. I can explain that the Land Registry is examining the feasibility and developing the policy of providing CON29. However, it is important to be clear that for a property transaction, customers already go to the Land Registry for searches, so providing local land charges searches through the Land Registry portal does not add another step for them. Over time, the CON29 searches may be added to those channels but our intention is to do that in a responsible way, as an incremental phased approach. The Land Registry is well placed to bring about the benefits envisaged. For a property transaction, customers already go to the Land Registry and, as I said, it has a proven track record. While local authorities are focused on a whole range of activities, property information and serving the conveyancing market is the sole purpose of the Land Registry and its specialised expertise.

The noble Lord, Lord Jenkin, raised the question of whether this is a step towards privatisation. Noble Lords will be aware that a consultation on the ownership structure of the Land Registry was begun in January and completed in March, and the Government have provided their consultation and see no reason to change the current ownership arrangements. I want to be clear on that point. The process we are proposing here—to bring new efficiency into the Land Registry system—is part of moving into the efficiency of the 21st century by taking advantage of digital technology, which has not historically been available but which is available today for the benefit of the user. Noble Lords will be aware that to some degree a whole industry has grown up which negotiates the current search process for individuals who want to buy properties, because they currently find that process so cumbersome and complex. Surely transferring that to an online system, which the ordinary user can use with ease and clarity, is the direction in which we absolutely have to go.

Noble Lords made a number of comments about the off-payroll breach. Adequate response has been given to those comments in the various letters that have been provided. However, the sort of determination to go to a centralised and digitised Land Registry system is not the work of one individual or a particular chief executive of the Land Registry, but part of a much broader process of bringing real efficiency into government. The new world of digitisation offers us all kinds of opportunities. We have to use them when they are available and when we can carry them out effectively. Therefore this is not the whim or ambition of one individual but a consistent pattern that one finds throughout government to improve implementation, delivery and efficiency.

The noble Lord, Lord McKenzie, raised the question of potential job losses at local authorities. I should point out that on average just over two people work on this at a local level, but many of them carry out other roles and will have some continuing role in providing the input data. The consequences from a job perspective therefore cannot be ruled out absolutely but are unlikely to be dramatic in the circumstances. I do not think that anybody in this Room, under any circumstances, would wish us to preserve inefficiency to protect jobs. However, in this instance, the consequences are not likely to be significant.

I believe that I have covered most of the issues that have been raised. If I have not, I will be glad to follow up and do so in writing. This clause is an important move forward that will assist people who are attempting to purchase property, to get a mortgage and to remortgage property. That group deserves to get the best service that we can provide it with. I therefore hope that your Lordships will agree that the clause should stand part of the Bill.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for her response. I am disappointed but not surprised by the position taken. I was not sure whether she was clear that there is going to be no change to the Land Registry’s model during the course of this Parliament. The press release that we had yesterday just says that no decision has been taken to change the Land Registry’s model; that means that it could be changed next month, the month after or indeed tomorrow. I wonder if she might just clarify that point.

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[Lord McKenzie of Luton]

I am grateful for that. I think that I heard the words “during this Parliament” and I understand that that is as far as the Minister can go.

This is not about preserving inefficiency; it is about working out the best way to create efficiency. The Minister talked about services remaining split as they are at the moment. That is precisely what is going to happen under these proposals; there will be a separation of the local land charges and the CON29. We have heard that a feasibility study is going to be done. We have to address the possibility of bringing in CON29 in a responsible and incremental way. When I heard the phrase “responsible and incremental”, I immediately thought of universal credit.

The reality is that the Land Registry has looked at this for three years. Its original concept was to have both bits of the service in—was it not?—but it has decided that it does not know how to deal with CON29 and, therefore, to move ahead with the other bits without knowing or indeed caring what is going to happen to the separated bit left with local authorities. That seems to be foolhardy, at the very least.

The Minister made the point that this should not be revenue-generating. I accept the point that people involved in local land registries may have other duties—they may spend time on electoral registration, for example—but that does not mean that the loss of a fee does not have a financial consequence. If you are using only one-third of a person’s time, you cannot get rid of one-third of a person, although you can cut hours down in some circumstances, so the contribution to the overhead is going to be less. There is a potential ramification there.

With regard to timing, it would be interesting to know how aware the people who buy, sell or mortgage a house are of how much of the conveyancing time is actually taken up with the search process. Certainly the Law Society’s convention is that it is just a part of the total conveyancing process, which on average takes between six and eight weeks. The Minister quoted the amount of time that Camden council takes, and I am sure that there are areas where people are outside the norm, but the Government’s own impact assessment shows the general speed with which searches are returned.

I well understand the concern and growing anxiety of the noble Lord, Lord Jenkin, the more that he considered this matter. He raised the issue of the £1 million fine that was imposed. I do not necessarily want to dig into that except that to say that for an organisation that is looking to digitalise, modernise and so on, it does not seem to bode well that it does not have the management systems in place to avoid these catastrophes.

It is right that the previous Government looked at the prospect of privatising the Land Registry. My noble friend Lord Wills was the Minister involved at the time; I spoke to him about it, and he said that it was knocked back pretty sharply. One of the driving forces behind that idea is that, frankly, it could be a nice little earner. Who knows what that database is worth? There are suggestions of £1 billion-plus, which, in an election year, obviously would not go amiss.

The users of the service, including the Law Society, the conveyancing firms and the search firms, are not supportive of this approach. From the Government’s press release when they moved back from changing the model, we know that they recognised that the Land Registry has embarked on the complex application of online and automated processes. It is going through that journey in respect of its existing business, without adding local land charges and the interface with around 350 authorities to it.

I accept that there should be a move towards digitisation. Many local authorities have done it and many are in the process of doing it. Some have started that process and I understand from the impact assessment that, if they have to pull the plug, there will not be any recompense for the investment that they have made in trying to do it. Can the Minister give any assurance on that? The real fear in all this is that this was considered in the context of a change of model. One of the changes would have quite readily led to privatisation. I think that there are some other background papers which clearly indicate that this was the path that some in the Land Registry were moving along. It seems to me that that has coloured the assessment of much of what has gone on.

The point made about the impact assessment and the consultation being undertaken by the Land Registry or the Chief Land Registrar is exactly right. Surely, if we are going to contemplate and revisit opportunities or proposals such as this, there should be an independent assessment on which this is based. Ultimately, whether they agree with it or not, people should have confidence that no ulterior motive was driving what was going on.

As ever, the noble Lord, Lord Tope, was trying to be helpful to his Government. I had to get my mind around the Land Registry as did the noble Lord. He made reference to 15 years but I understand that the government consultation may knock that on the head and that that will not now be a cut-off point. Some of the fears that his colleagues in local government expressed are real fears. The fear that the loss of local knowledge may be dismissed as being not important is a real issue.

I am not sure that we will have a meeting of minds this afternoon. I am sure that we will have another discussion about it at a later stage. There is a substantial head of steam opposed to these proposals, as I am sure the Minister is aware. Perhaps we could hang on to the point that the Law Society, as well as others, is saying that this is not the issue that needs to be addressed. If we are worried about conveyancing issues and the time that that takes, we should look elsewhere to the process and not be looking at this. It acknowledges that processing times have speeded up and that in recent times there has been greater standardisation of response. There has been a reduction in fees and the Government’s impact assessment has recognised the productivity gains that have been made and passed on to customers. Local land charges is not the problem that is creating concerns about conveyancing.

Clause 23 agreed.

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Debate on whether Clause 24 should stand part of the Bill.

[Lord McKenzie of Luton]

My Lords, we have had a substantive debate on the Government’s proposals for the Land Registry and local land charges being removed from the Bill. We covered much of the ground in relation to Clause 24 in that same debate. Clause 24 seeks to confer additional powers on the Land Registry. It was acknowledged in the Government’s response to the wider powers consultation that the focus was on the principles of extending the powers of the Land Registry. However, Clause 24 would appear to be more than that and if it were retained, would it not be sufficient for the Land Registry to act without any further legislative approval?

This clause substitutes for certain services,

“consultancy or advisory services about land or other property in England and Wales or elsewhere … information services about land or other property … or … services relating to documents or registers which relate to land or other property in England and Wales”.

If that were carried through, would it not be within the remit of the Land Registry to act on it without further legislative processes? I see that in the responses to the consultation, the challenge was that the consultation did not provide sufficient detail of the services that the Land Registry intends to undertake under its proposed wider powers. The Government’s response was that the part of the consultation on wider powers related to the principle of Land Registry powers being extended to enable it to provide new services. Frankly, what is in the Bill does not seem to correspond with that. What is provided for there is an expansion of the types of services that may be provided.

In any event, in the response to the delivery company consultation the Government made it clear that they consider there to be,

“benefits in creating an arm’s length service delivery company to … modernise”,

the Land Registry and,

“to support new opportunities for the business to play a wider role in the property market”.

There is clearly a linkage between the commercial model and the additional powers. However, as it is agreed that the service delivery company model needs further consideration and there is a commitment to consult again if it is taken forward, should this not apply to Clause 24 so that it can be removed from the Bill, at least for the time being, even if it has to be reinstated in due course?

Either this provision is simply widening the services that can be provided or it is dealing with the principle that is tied up with the service company delivery model which the Government have taken away to consider further. The only safe thing in those circumstances seems to be for that clause not to stand part of the Bill. If there are going to be changes to the model in due course, there will need to be further legislation in any event. If this is tied to that, it needs to be dealt with at that same time.

[Baroness Kramer]

My Lords, Clause 24 gives wider powers to the Land Registry to enable it to play a greater role in the property sector. The Government’s goal is to make the conveyancing process quicker, cheaper and easier to complete. As we have said before, the Land Registry is the single largest source of property information. It has a proven track record of digitisation of registers, 98% customer satisfaction and a record of reducing fees, with almost 22 million applications processed electronically last year. Most importantly, it sits at the heart of the conveyancing process.

At present, the Land Registry is limited in the services it can offer, not by what is in the public interest but by its statutory powers. This clause corrects that. Giving wider powers to the Land Registry will enable it to provide a range of property information services for businesses and citizens, helping to manage records, keep track of markets and identify business opportunities. The needs of the customers and stakeholders of the Land Registry are constantly changing, and allowing it to meet those changing needs must surely benefit both the property market and the overall economy.

The Land Registry’s ability to engage in new services is not a new concept. The Land Registration Act 2002 already enables it to provide consultancy and advisory services related to the registration of land. It is already using those powers to provide services such as international consultancy on land registration and a range of add-value services relating to land registration information. The new services would be provided on a cost-recovery basis, and the Land Registry would consider undertaking new services and activities only where that could bring savings, efficiencies and other benefits to the property market. This is part of the current move to make sure that we maximise the benefit of the information that is available within government entities in order to benefit residents and, in the case of the Land Registry, particularly those involved in property arrangements.

I also want to make it clear that this is not a necessary mechanism for the digitisation that we have been discussing or for providing services to taxpayers. The process that we have been describing—the core change here—is not dependent on any sort of commercial model, but we think it is rational to permit these additional powers. Given the breadth and depth of its expertise, the Government want to allow the Land Registry to broaden its activities to provide that kind of additional information as part of the infrastructure which others in the property market can then build on and innovate from. This is relatively straightforward and very much in keeping with the whole direction in which access to information, transparency and various kinds of support are now being provided by many parts of government. It recognises that the Land Registry is very much at the heart of conveyancing and central to the whole property industry, and that therefore it has the potential to benefit the sector by expanding the services that it offers, based on needs as they arise and as they change.

Therefore, there is no sinister motive behind this. As I said, it is very much in keeping with modern practice. It is very important that this clause stands part of the Bill so that we can gain the greatest benefits for the property market, for the economy and for the many members of our communities who use that market.

[Lord McKenzie of Luton]

I thank the Minister for her reply but perhaps I may just be clear. Does she consider that what is set down in Clause 24 is sufficient for the Land Registry to commence some of these services, having done its internal assessment? Obviously it is not going to embark on something which it believes will make a profit. Where does that leave the comment in the Government’s response that the Land Registry,

“would consider undertaking new services and activities only where it could bring savings, efficiencies and other benefits … An assessment would be made on market need and LR would engage with stakeholders and, where appropriate, consult on any significant initiatives”?

In a sense, is the Minister saying that these provisions are subject to that response?

[Baroness Kramer]

Is this a question about whether we are intending to change the commercial model of the Land Registry? Clearly we are not. If that is an answer to the question asked by noble Lord, Lord McKenzie, then I can give that assurance. I think that I made it clear in describing the kinds of services that the Land Registry would seek to offer that those services would be in response to market need. Obviously that requires extensive engagement with the various stakeholders and others who would use the services. It seems to me that that is the kind of partnership relationship, as one could almost call it, that there would be. The Land Registry would therefore consult on any major change precisely because its goal is to make sure that it provides the most appropriate kind of response.

The sorts of factors that would be considered before a new service was introduced would include things such as the impact on the property market, any competition issues, and capability and capacity issues. At this point in time, it is difficult to detail those proposals because we are in a dynamic environment. Therefore, this is essentially an enabling provision but, I think, an entirely appropriate one.

[Lord McKenzie of Luton]

I thank the Minister for that. I do not want to make a meal of this but perhaps I may ask for a final clarification. Are we saying that these services are distinct from any change in the Land Registry’s model—that there might be a change in the Land Registry’s model but these services would still go ahead on some basis or another—or that there would be no change to the model and these services might still be commenced?

[Baroness Kramer]

Perhaps I can be clear. The whole issue of the model, by which I assume the noble Lord means ownership, is an entirely separate question. The two are not interlinked.

[Lord McKenzie of Luton]

I take the model to be in the sense of not only the corporate structure but the separation of the office of the chief registrar and what was termed in the consultation as a delivery company.

[Baroness Kramer]

I have an assurance that they are not linked.

Infrastructure Bill [HL]

Lord McKenzie of Luton Excerpts

Thursday 10th July 2014 Grand Committee

[Lord Jenkin of Roding (Con)]

My Lords, the noble Lord, Lord Best, has made a very interesting and compelling speech. I am more than ever pleased that I was one of his supporters when he took his seat in the House. I have greatly admired what he has been able to do over the years since then, and this is not the least of his achievements. He made a strong case, and I entirely recognise that. The question that I ask is who would initiate these big schemes? I entirely agree with him that these are desirable measures, if we are going to try to reach our housing target, and I entirely agree with him that planning should not be an obstacle to that. The Planning Inspectorate, which, as the noble Lord said, would have to be the body to decide on whether to allow or disallow the investment for something of more than 1,500 houses, is not an initiating body. It does not propose schemes and is not a body like, for instance, the development corporations that now exist in some parts of the country. Its powers are not like those which the Greater London Authority and the Mayor of London have to initiate large schemes of housing, or indeed anything else.

On the point that the noble Lord made about the speed at which it has to approve applications made, of course that starts from the point when it is considering the application. One thing about the inspectorate—and indeed its predecessor, which was proposed by the former Government of the Labour Party—was that it insisted that all consultation of local opinion should be achieved and established before it started to consider the application. I think that everybody approves of that. It is a very good way of approaching this, so that when looking at the application and its impact you do not waste a lot of time on questioning whether local communities or other local interests were consulted.

I am interested as the noble Lord, like me, is of course a champion of localism. At Second Reading, I criticised the Local Government Association’s statement that it did not see planning as an obstacle to growth and development. I quoted some statements that have been made regarding the interests of those who see this from another perspective. I felt, as I argued, that that was a rather unrealistic statement. Of course, it has to be speeded up, but I had a long brief from the Local Government Association, as we have all done from time to time on various Bills. I am a vice-president of the LGA, but it is interesting that it has not offered any comment on this amendment, neither for nor against. It has argued—this is perhaps my central point—that what is needed is organisations which will promote the kind of development that the noble Lord, Lord Best, has been describing. It has argued that there ought to be development corporations along the lines that now exist in certain areas.

I am a huge supporter of the various efforts that have been made to encourage local authorities to join together, perhaps over quite a wide area. One has seen that first in the city deals that have been made, which are proving quite extraordinarily effective. They are a very interesting new instrument of localism, which will surely produce substantial benefits for the future. However, it goes wider than that as it is not just city deals but local authorities which can get together to plan and initiate projects, for which they can then find investors and so deal with them. To my mind, that is the way that it should be done. If you then have local authorities or, as I think it would have to be, development corporations formed by local authorities, that is the way in which they can have what I certainly support: that the decisions should be made locally.

The difficulty with this amendment, although I understood clearly and listened with great interest to the arguments, is that it goes contrary to the whole thrust of policy in many of these related areas: seeking to devolve authority from the centre down to the locality.

Of course, the noble Lord is quite right that there are always nimbys, and that is a problem that has to be addressed. When I was Environment Secretary, my very splendid chief planning adviser John Delafons— who is sadly no longer with us—after asking me, “Secretary of State, have you heard of NIMBYs?”, to which I said yes, he asked, “Have you heard of NOTE?”, to which I said no, so he explained: “Not over there either”. He also had another story that I liked: “The man who occupies the end house in a new housing estate on the edge of a town promptly becomes the secretary of the local conservation society—‘I’m all right, Jack, and I don’t want any more!’”. Those are the kinds of very human, but really rather damaging, impacts that these influences can have.

Would centralising the decisions into the hands of the local Planning Inspectorate make any difference? It might, but surely the right answer is for local developers—or perhaps development corporations supported by a consortium of local authorities, as might be necessary—to win the argument. Some of them are very good at it; others need to match their skills. However, I have some doubts about whether centralising the decision into the hands of the Planning Inspectorate, which is what the amendment calls for, is the right way forward. It might help, but it would also do other things that may be less helpful. Indeed, I think that there are better ways of doing this. It is interesting that local authorities have been arguing for the right to set up development corporations as the Mayor of London can do, but they have not actually put any amendments to me about how that might be properly achieved. Perhaps that is an issue to which we can return on Report, which might be a better peg on which to hang this.

I end on the note with which the noble Lord, Lord Best, began, which is that nobody doubts the acute seriousness of the housing problem in this country. In part, the problem is about overcoming environmental resistance, although one can understand some of that; in part, it is caused by the difficulty of getting developers interested in brownfield sites. I was very struck by the statement made by my right honourable friend the Secretary of State for DCLG, Eric Pickles, which was repeated by noble friend Lady Stowell on 16 June, about what is being done to encourage more development on brownfield sites. There will be extra help for London, but more important is that the success of London in getting ahead of this is now to be emulated in other parts of the country. It seems to me that these are the ways in which one ought to try to deal with this.

I will therefore listen with great interest to my noble friend’s response to the amendment, which has a very considerable appeal, but I have to say that I am not wholly convinced that it is the right answer.

[Lord McKenzie of Luton (Lab)]

My Lords, the noble Lord, Lord Best, got us off to a good start in our deliberations on Part 3 of the Bill. He touched upon a fundamental issue facing the country—and, indeed, as other noble Lords said, all political parties at this time—which is the housing crisis. I hope that the noble Lord, Lord Tope, will forgive me for quoting a few statistics in a little while, but this crisis is characterised by an acute housing shortage, with housebuilding falling to its lowest levels in peacetime since the 1920s, home ownership being unaffordable for many low to middle-income families, a falling programme of homes for social rent, an unaffordable “affordable rent” model and a burgeoning private rented sector in which rents are rising—all accompanied by insecurity and uncertainty in the marketplace.

The Government will claim that they have built some 445,000 houses since 2010, but this represents just over 110,000 a year—way short of what we need, the 243,000 figure quoted by the noble Lord, Lord Best. This is less than half of what the country needs. Figures from the House of Commons Library show that since 2010 the gap between housing supply and demand has increased by more than half a million homes, with London bearing the brunt of the increasing shortfall. It has been reported that DCLG Ministers have been advised of the prospect of the number of housing starts falling in 2014, with just 16,000 affordable home starts. Perhaps I can ask the Minister whether that is correct.

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[Lord Best]

I agree entirely. The noble Lord, Lord McKenzie, was very supportive but had some doubts. It was important to hear the plans that are now being formulated by the Labour Party. I know that Sir Michael Lyons’s review is due out fairly soon. I think that will be a creative and important contribution to the debate. The noble Lord, Lord McKenzie, made the point that long-term consensus is going to be essential and we have to work our way towards that, even though he has some reservations about this particular approach.

I thank the noble Baroness, Lady Stowell, very much for her response and for underlining the Government’s commitment to increasing supply, which is the essence of this. My suggestion is by no means a silver bullet, that is for sure. Loans, guarantees, et cetera, are all good; it is whether or not the volume that we need is going to be achieved by the measures that are currently there. With regard to reliance on local plans—remembering that you have no duty as a local authority to meet the needs of your neighbours or of the nation—your local plan must relate to the requirements of your own locality, and that may not encourage you to believe that a very major development is within your remit.

I take the point entirely that the pre-application process adds another year or so to the whole, so in total from beginning to end, with the 28 days from the Secretary of State at the beginning, one may well reach three years. But believe you me, three years for a major development is a triumph in relation to the time that we now must wait to get things done.

This is a proposal for a Bill, not a proposal in itself.

[Lord McKenzie of Luton]

How does the noble Lord see the issue of the use of the infrastructure planning regime for garden cities and new towns, given the scale of what they entail—very big developments over the longer period? The TCPA thought that the infrastructure planning process did not really suit that. That is why I thought we almost had three situations. There is the local authority with its usual planning role and responsibilities for housing. There are new town development corporations with the much needed mega-expansions. My reservations were about the extent to which intermediate positions would be best dealt with by the infrastructure planning regime or by some other route.

[Lord Best]

I am sure that that distinction is exactly right. A development corporation need not necessarily go for 15,000 homes, which I believe is the target for Ebbsfleet, the first of these new garden cities. We are looking here at the more modest proposals; ones that are none the less enormous in relation to the place. It may well be that the development corporation model works just as well with a master plan for 1,500 homes as it does for 15,000 and the opportunities that that brings with it, requiring something in between the mega and the everyday that can be encompassed within the local plan.

The amendment is a proposal for a Bill within a year of this Bill becoming an Act. That would give an opportunity for that Bill to take forward all the detailed aspects of this, things such as who exercises compulsory purchase powers in these circumstances or whether one requires a national policy statement as for other aspects of infrastructure that would go with this measure. That is all to play for. At this stage, I thank all those who joined in and beg leave to withdraw the amendment.

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Moved by

[Lord McKenzie of Luton]

79AA: Clause 19, page 20, line 19, leave out “or” and insert “to exercise a discretion, or with the consent of the Secretary of State, to allow”

[Lord McKenzie of Luton]

My Lords, this is a probing amendment that enables us better to understand what is intended by a very specific provision. It also gives us the opportunity more generally to assess progress on the process for dealing with nationally significant infrastructure projects.

To the narrow point first: for non-material changes to a development consent order, the duty to comply with consultation and publicity requirements is placed upon the person applying for consent as well as on the Secretary of State. The Explanatory Note suggests that that “may” happen although it would appear to be automatic given the wording of the Bill. Perhaps the Minister could elucidate. If it is not automatic, who makes the decision to place that obligation on the applicant? When it comes to the exercise of the discretion, it is not clear how prescriptive the regulations will be in setting the parameters of that discretion, and particularly what scope the applicant may have to, say, disapply prescribed consultation requirements. Perhaps the Minister could put something on the record in that regard.

We note that this clause and Clauses 17 and 18, which we support, spring from the review of the nationally significant infrastructure planning regime review. Much of what flows from that review will do so in regulations and guidance, much of it outside the timeframe for our consideration of the Bill. In principle, the direction of travel of that review is something we can support. The creation of the nationally significant infrastructure regime by the Planning Act 2008 was important in seeking to simplify and speed up planning consents for infrastructure projects, as we just discussed. However, even in the short time since that Act there have been changes to the legislation: transferring power back to Ministers, which was then delegated straight back to the Planning Inspectorate; widening the scope so that other major developments are included; eliminating the need for certain consents; establishing the consents service unit; and setting up the major infrastructure and environment unit.

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[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Lord, Lord McKenzie, for outlining his support for Clauses 17, 18 and 19, and for explaining the reasons for tabling his amendment and seeking clarification about what we are intending with the proposals outlined in Clause 19. I hope that I am able to give him the reassurance he is looking for. I will do my best to be simple and straightforward in explaining this, but it is quite a technical thing to explain. I am quite confident that we share the same objectives, so I will give it a go and if needs be we can always talk further, I am sure.

Clause 19 will provide the framework for changes to regulations that will provide a quicker and simpler process for making changes to development consent orders. We will be consulting on changes to regulations shortly. For non-material changes, we will be proposing that responsibility for publicising and consulting on an application should in future lie with the applicant rather than the Secretary of State. Crucially, that will bring the process for making a non-material change in line with the rest of the Planning Act. In moving the responsibility for publicising and consulting on an application to the applicant, the Government want to ensure the necessary flexibility in the regulations to ensure that non-material changes that are unlikely to have significant impacts can be made quickly. In view of that, we intend to retain the provision in the existing regulations that would allow an applicant not to consult someone, but that would be only where they had gained the consent of the Secretary of State to do so.

I hope that the noble Lord, Lord McKenzie, and others who may be interested in this part of the Bill, have seen the briefing paper which we prepared in advance of this Sitting of the Committee. We circulated it by e-mail earlier this week. I will happily send it round again if anyone has not seen the document to which I am referring. The briefing paper gives a preliminary indication of the changes to the regulations on which we will consult later this month, so the consultation should start fairly soon.

The briefing paper does not suggest that we intend to change the current consultation and publicity requirements for non-material changes. I hope that once noble Lords have had the opportunity to consider the consultation paper on changes to the regulations, they will be reassured that the Government are not proposing to use the power of discretion provided in Clause 19 to allow applicants to decide who they should and should not consult. Applicants will continue to consult those persons and bodies set out in the regulations unless they have the consent of the Secretary of State not to do so. Given those comments, I hope that the noble Lord, Lord McKenzie, feels able to withdraw his amendment.

The noble Lord, Lord McKenzie, asked about progress on applications and decisions through the nationally significant infrastructure regime. Twenty applications have now gone all the way through the system and 19 have been granted consent, so that is a 95% approval rate. There was one refusal, which concerned the Preesall gas storage application. This project is being redetermined following judicial review. Four applications have been decided in 2014, with another nine expected, and 13 were decided in 2013. Two were decided in 2012 and one in 2011 through the Infrastructure Planning Commission. Therefore, the regime is being used, and we can see from the number of applications that the process is working. There are 56 applications in the pre-application phase and more in other parts of the system. I hope that gives the noble Lord the information he was looking for and that I have given him the reassurance he sought on this part of the Bill.

[Lord McKenzie of Luton]

I am grateful to the Minister for that explanation which dealt precisely with my narrow inquiry about the exercise of discretion. If I understood her correctly, it is clear that the Secretary of State’s permission will be needed if an applicant seeks to exercise discretion in this regard. The Minister gave a very helpful update on the statistics. It would also be helpful if at some point, not necessarily this afternoon, those figures could be broken down by sector or type of project and if a distinction could be made between those that arose in respect of the original construct of the infrastructure commission and those that fall within the expanded definitions and facilities in the Growth and Infrastructure Act. Having said that, I beg leave to withdraw the amendment.

Amendment 79AA withdrawn.

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[Lord Tope]

My Lords, this amendment stands in my name and the names of the noble Lords, Lord Davies of Oldham and Lord McKenzie of Luton, and would enable local authorities to set their own permitted development rights. I am grateful to have the support of the Labour Benches for this amendment. I take it to be a commitment on behalf of the Labour Party that this will become government policy, should it ever be in a position to make it so. As we all know, the current system is centrally set and nationally determined and local authorities have extremely limited opportunities to change or vary what is set down nationally.

The Minister has already said today, and on many occasions, and I know she firmly believes it, that the people best placed to take these decisions are local planning authorities. We heard this in an earlier debate this afternoon. Local planning authorities are in a position to know what local needs, priorities and circumstances are, they know best what is needed to determine and stimulate local growth, yet they do not have the opportunity to set their own permitted development rights. Surely, it must follow logically from all that we all say that local authorities should have the power and ability to set such rights themselves. That is the purpose of this amendment, and in view of what has been said in earlier debates today I am confident of its acceptance. I beg to move.

[Lord McKenzie of Luton]

My Lords, as the noble Lord, Lord Tope, indicated, we have added our names to this amendment and we support it. It took me back to a debate during the course of the Growth and Infrastructure Act when identical amendments were moved and rejected by the Government. The Government’s defence then was that the Article 4 direction would be a route that local authorities could use if they were not happy with what central government was doing. At that point, there was disagreement between the LGA and the Government about how user-friendly that route actually was. The Government were going to talk to the LGA to see whether those matters could be clarified, so it would be very helpful to know whether any clarification was forthcoming. In particular, there was an issue about how the Secretary of State should approach the use of Article 4. I refer to the debate on the Growth and Infrastructure Bill:

“Is it still the position that the Secretary of State’s general approach to making an Article 4 direction, as set out in paragraph 4.23 of planning policy guidance note 15—”

here I asked whether that policy guidance still existed—

“is that, ‘permitted development rights should not be withdrawn without clear justification’?”.—[Official Report, 12/3/2013; col. 195.]

It would be helpful to know whether that interpretation is still imposed upon the Secretary of State in dealing with any Article 4 direction.

Having said that and raised those inquiries, I thoroughly support the position of the noble Lord, Lord Tope.

[Lord Jenkin of Roding]

My Lords, this will be considerably shorter than the last intervention I made. I assure my noble friend Lord Tope that I think this is a good point. It will certainly have my support, and I look forward to hearing the Minister’s response.

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Moved by

[Lord McKenzie of Luton]

79C: After Clause 19, insert the following new Clause—
“National infrastructure projects: new towns
(1) The objects of a development corporation established for the purpose of creating a new town shall be to secure the physical laying out of infrastructure and the long-term sustainable development of the new town.
(2) In this section, sustainable development means managing the use, development and protection of land and natural resources in a way which enables people and communities to provide for their legitimate social, economic and cultural wellbeing while sustaining the potential of future generations to meet their own needs.
(3) In achieving sustainable development, development corporations should—
(a) positively identify suitable land for development in line with the economic, social and environmental objectives so as to improve the quality of life, wellbeing and health of people and the community;(b) contribute to the sustainable economic development of the town;(c) contribute to the cultural and artistic development of the town;(d) protect and enhance the natural and historic environment;(e) contribute to mitigation of and adaptation of climate change consistent with the objectives of the Climate Change Act 2008;(f) promote high quality and inclusive design;(g) ensure that decision-making is open, transparent, participative and accountable; and(h) ensure that assets are managed in the long-term interest of the community.(4) In this section “infrastructure” includes—
(a) water, electricity, gas, telecommunications, sewerage and other services;(b) roads, railways and other transport facilities;(c) retail and other business facilities;(d) health, educational, employment and training facilities;(e) social, religious, recreational and cultural facilities;(f) green infrastructure and ecosystems;(g) cremation and burial facilities; and(h) community facilities not falling within paragraphs (a) to (f); and“land” is defined as including all the matters set out in the definition of “land” in Schedule 1 to the Interpretation Act 1978, and also housing including (where the context permits) any yard, garden, outhouses and appurtenances belonging to, or usually enjoyed with, the building or part of building concerned.”

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[Lord McKenzie of Luton]

I am grateful to the TCPA for its enthusiastic counsel in drafting this amendment and for advising me on it.

Overall, we consider that the planning sections of the Infrastructure Bill are a lost opportunity to lay the foundations of a planning system that can help deliver the homes and places the nation deserves. This very much builds on the amendment tabled by the noble Lord, Lord Best. The Bill continues in the long line of measures which reduce the powers of local authorities in ways which in turn risk creating real impacts for individuals and communities. We will discuss Clause 20 shortly. Given the negative nature of the Bill, we propose to use this amendment as a vehicle for a much more positive debate about how planning could be made fit for purpose. We do this by seeking to insert a new clause which would amend the objectives of the new town development corporations. This allows for a more comprehensive debate on the principles and positive purpose that might drive the delivery of quality growth and new homes which is so vital to our nations. Both coalition parties, we understand, support new towns and garden cities—as, indeed, do we. We should be able to find common cause on these issues.

The proposed new clause flows out of the detailed research that the TCPA carried out on the measures necessary to make the existing new town legislation fit for purpose. The legislation, in the form of the New Towns Act 1981, is still in force and provides for the setting up of powerful new town development corporations which can drive delivery. The development corporation was the engine that drove the rapid deployment of the new town programme and had the following core powers: compulsory purchase of land where it could not be bought by voluntary agreement; the preparation of a master plan which, after public inquiry and approval by the Minister, would be the statutory development plan; the power to apply to the Minister for the equivalent of outlying planning permission for comprehensive tracts of the new town to control development—that is, to process planning applications; to deliver key utilities in partnership with the relevant agencies; to procure housing subsidised by government grant and other means; to act as a housing association in the management of housing; and to carry out any other activity necessary for the development of the town.

Although strong on delivery, therefore, the outcomes of new towns did not always reflect the highest design and quality standards. In addition, there is now a need to modernise the objectives of NTDCs to ensure that they have the visionary purpose to effect change while creating new opportunities for partnership and participation and a low-carbon future. Due partly to the nature of the new towns legislation, little of the high social ambition which drove the originators of the 1946 Act was reflected in the legal objectives of the development corporations. These were quite brief and mechanistic, referring only to the laying out and development of the new town.

There is therefore a risk that development corporations might see themselves as engineering departments rather than organisations engaged in the wider social enterprise of place-making. Over the past 30 years there has also been a wide recognition that planning has few, if any, outcome duties. This has in turn led to much criticism that planning has become a process without a purpose. New legal processes have been introduced to focus the system on sustainable development, climate change and good design, but they do not apply to development corporations because they are not local planning authorities.

The suggested new clause is designed to extend and modernise the list of objectives and duties of new town development corporations. In order to modernise the objectives, the first proposed new clause draws on the outcome duties in both the Planning and Compulsory Purchase Act 2004 and the Planning Act 2008, as well as the legislation that created the Homes and Communities Agency, which has statutory objectives that include people’s well-being, good design and sustainable development. The redrafted clause also introduces new and important obligations on the social and cultural as well as physical and economic development of the new town, through strengthening requirements for public participation. It also includes a new definition of “sustainable development” based on the successful wording of the New Zealand Act. I beg to move.

[Lord Jenkin of Roding]

My Lords, there is a lot to be said for the amendment. Indeed, it follows from what I said earlier this afternoon about the need for more local authority development corporations. I will not repeat that, but it was in the context of local housing estates, which the amendment is not specifically addressing.

My point in a sense supports the noble Lord, Lord McKenzie. This country has learnt a great deal about planning of new towns. I lived for some years not far from Harlow and, even 20 or 25 years after it was founded, there was still talk of what had become known as “new town blues”. I am looking at the noble Baroness, Lady Whitaker, who knows much more about this than I do. However, the new town blues were caused not just by the separation of families, when they went from crowded urban areas to rural areas outside the cities, but because those rural areas were designed with enormous spaces between different little bits of housing. Harlow was a very good example of that. There really could be almost no interaction between little local communities, which felt themselves very much cut off. No one had cars in those days; they relied on foot and bicycle, and whatever public transport might be provided. We have learnt an enormous amount since then. The design of more recent developments is, if I may put it this way, very much more user-friendly. I hope that we shall see that very much at Ebbsfleet. That helps local committees to gel and to develop a local identity. They left that behind when they moved from the cities and, often, city communities were divided as some went to some new towns and some to others.

I saw this a bit in Liverpool, where a lot of the Liverpool council development was in large, out-of-town housing estates that were often quite hideous, with a lot of huge, tall concrete blocks. I hope that I was instrumental in securing something for a group that was eventually called the Eldonians, a tight-knit community of people who were absolutely determined that that was not going to happen to them. Yes, there needed to be redevelopment, but we were able to secure that in a single site, fairly close to where they were already living. I was helped by the fact that the Tate and Lyle sugar factory had closed and that we therefore had a readily available site. To the fury of the Militant Tendency, as it then was, within the leadership of the Liverpool City Council, I was able to insist that that site went to the Eldonians. They have been very kind in their recognition of that ever since, and that community is still going strong.

This is what one has to do: to try to preserve communities, so that they can retain and build their identities to become what one would like to see—a really flourishing social unit. This country has learnt a lot about that. Regarding the development corporations in new towns to which this amendment speaks, I was urging earlier the inclusion of development corporations with the power to initiate substantial housing estates, with the necessary accompanying infrastructure. We are now much better at understanding this, and the planners and other people who have been involved with this deserve great credit. I hope that the Bill will lead to more of the same.

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[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords who contributed to this debate. I and the Government certainly share the vision that noble Lords expressed for great design and quality, and for the kind of communities that noble Lords talked about today. It is absolutely essential that in developing new places for people to live the kind of points raised in the debate today are very much reflected in the design and execution of those plans. However, it would be unhelpful to prescribe the objects of a new town development corporation in such detail as set out in the new clause put forward by the noble Lord, Lord McKenzie.

As the noble Lord said, the objects of the new town development corporations are set out in the New Towns Act 1981. They are quite simply to secure the laying out and development of the new town. We believe that that brevity is helpful because it allows the detailed objectives of development corporations to be established in each particular case, in consultation with the local area and reflecting local needs. Prescribing such detail in primary legislation takes away that opportunity.

I say to all noble Lords who have spoken today that the Government attach great importance to the design of the built environment. It is a key aspect of sustainable development and we have made that clear in the National Planning Policy Framework and our planning guidance. These make clear that local and neighbourhood plans should develop robust and comprehensive policies that set out the quality of development expected for the area. As I have already said, the proposed new clause would mean that sustainable development should be included in the new town development corporations’ objects. Although we strongly support the principle of sustainable development, we think that it is right that it is made clear in the National Planning Policy Framework. Making separate provision for one part of the planning system would serve only to dilute that clarity by defining sustainable development differently for different types of development.

It is worth reminding ourselves that no new town development corporations have been created since 1970. However, urban development corporations have been established more recently and the Government propose the establishment of a new one at Ebbsfleet. Unlike new town development corporations, an urban development corporation can be designated as the local planning authority for its area. Where this happens and it exercises functions in relation to local development documents, it is subject to the duty in the Planning and Compulsory Purchase Act 2004 to exercise those functions with the objective of contributing to the achievement of sustainable development.

In the context of Ebbsfleet, I can reassure noble Lords that we want to ensure that Ebbsfleet is a real place where people want to live and work. In setting the vision for Ebbsfleet Garden City, the urban development corporation will look closely at what garden city principles mean in an existing urban context, such as Ebbsfleet. It will work with local partners to support them in developing and delivering a high-quality settlement with locally available jobs and generous green space.

I acknowledge what the noble Baroness, Lady Andrews, said. My response to her and to others who have contributed today is that we absolutely share that fundamental principle of ensuring that, where new houses are built, communities are created which are properly designed and in which people want to live. However, we feel that prescribing this in primary legislation as the noble Lord has proposed is unnecessary, and I therefore urge him to withdraw his amendment.

[Lord McKenzie of Luton]

I start by thanking all noble Lords across the Committee who have spoken in support of this amendment. The Minister’s response does not altogether surprise me; it is where I thought the Government might be, but it is a pity that she is arguing for brevity. It is difficult to see what should be excluded or what anybody would want to remove from those objects and general powers of development corporations. They may wish to add to it; they may have a particular local focus on it, but that somebody should not want any of those is quite difficult to understand, although I understand where the Government are coming from.

I am grateful to my noble friend Lady Whitaker, who said that this is about having a vision for a place, a community and a town. The noble Lord, Lord Tope, focused on the point that this should not just be about a mechanistic, technical approach to building new developments; it has got to be something more fundamental. My noble friend Lady Andrews, with all her incredible wealth of experience, talked about planning as something which is creative and positive, not something which is mechanistic. She speaks with huge passion and experience on that issue. The noble Lord, Lord Jenkin, again speaking from a fantastic wealth of experience, made the point that things have moved on in recent years. There is the potential of a consensus to create something which may not be the precise wording here, but at least moves us on from where we are.

Would the Minister be prepared to meet the TCPA, just to talk through this issue, to see whether there is anything which can be created which does not necessarily pick up that precise wording, but seeks to retain the concept, the vision and the belief that we should be about more than just delivering bricks and mortar? I am sure that she meets them on a range of occasions. Would she be prepared to facilitate that, together with the TCPA?

[Baroness Stowell of Beeston]

Both I and my colleagues at the department are always open to meeting different people and I would never refuse a meeting, but if I or one of my colleagues were to agree to a meeting, it would be important for me to be clear at the start what the Government’s position is. I have outlined that today—but, on that basis, my door is always open to anybody who would like to come and talk to me.

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[Baroness Stowell of Beeston]

I hope noble Lords will forgive me if I respond to my noble friend. He is someone for whom I have a huge amount of respect. I acknowledge just how experienced he is as a previous Secretary of State. He will know and understand the limitations I have when I stand at the Dispatch Box. When I meet anybody, I am willing to listen to what they have to say, but I feel I am duty bound, in agreeing to a meeting, to make clear what my starting position would be. I am always, of course, open-minded, as the noble Baroness, Lady Andrews, was generous enough to acknowledge in her contribution to the debate.

[Lord McKenzie of Luton]

I am grateful to the Minister for that assurance about the prospect of a meeting, and to the noble Lord, Lord Jenkin. I hope that noble Lords who have been involved in the debate today might join that meeting. I hope we can bring something back at a later stage in the Bill to keep this issue alive, notwithstanding what the Government have said today. It is an opportunity. These Bills do not come up—well, I suppose infrastructure Bills do come up quite frequently, actually; sometimes more frequently than one would want. Maybe we will have another one next year. I am grateful to the Minister and beg leave to withdraw the amendment.

Amendment 79C withdrawn.

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Moved by

[Lord McKenzie of Luton]

79D: Clause 20, page 21, line 2, at end insert—
“except that it does not apply to any condition designed to mitigate direct impacts on public amenity, health or well-being.”

[Lord McKenzie of Luton]

My Lords, in moving Amendment 79D, I will speak to the other amendments and on whether the clause should stand part of the Bill. In so far as there are issues to address about the discharge of planning permissions, it is suggested that these can be dealt with in another way than that provided for in the Bill. As it stands, the clause is yet another example of central government disempowering local planning authorities.

The ability to impose conditions is an important part of the planning process. They are an alternative to outright refusal of planning permission and therefore an aid to development. By potentially mitigating the adverse effects of the development, they can enable it to proceed. If conditions are imposed, it is important that they are properly discharged, otherwise the system is undermined. Of course, conditions should not be spurious; they should be carefully justified and relate to clear planning issues and policy. They are usually an interlocking set of measures designed to ensure that the development does not harm the public interest.

The NPPF states that:

“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”.

The Planning Portal has compiled a set of model planning conditions. There is a right of appeal against what might be considered an inappropriate condition. By way of example, conditions might include requirements for a development to be completed in accordance with lifetime homes standards; for a commercial premises to have cleaning and extraction equipment approved by the LPA; for a restriction on the activity that can be carried out in or from particular premises; or for the protection of, say, an archaeological site. To have these conditions unfulfilled could materially affect the well-being of individuals and negate the planning process.

Of course, local planning authorities should not be entitled to sit and ignore and not sign off situations where conditions have been properly fulfilled, but the route of deemed consent is a heavy-handed and dangerous remedy. We have no idea how it is to be implemented. For a start, the deeming process will proceed by way of a development order, which is subject only to the negative parliamentary procedure. There does not appear to be any provision requiring an applicant to have attempted or succeeded in discharging the conditions for the deeming to be applied—hence Amendment 80. No judgment is required of the Secretary of State as to whether any adverse consequences for the community would arise from a discharge—hence Amendment 81. There are lessening opportunities to mitigate the adverse impacts on public amenities, health and well-being—hence Amendment 79D. There seems to be the prospect that the applicant himself may be given the opportunity to decide when the deemed discharge is to take effect, and no rationale is offered for this—hence Amendment 82. There is no certain relief from the deeming or any delays in the local planning authority responding within the given period that are wholly or partly caused by statutory consultees, the applicant or indeed anyone else. In short, we have no idea how this proposition is to be applied, and we trust that the Minister will be able to give us at least some comfort today.

If a development has been frustrated by unreasonable conditions in the first place, and a failure to address their discharge in the second, it is of course reasonable that the matter is addressed. But the work of the LGA, in conjunction with the BPF, the Planning Officers Society and the Home Builders Federation, should clearly be given a chance before these draconian measures are taken.

In conclusion, perhaps I might ask some questions of the Minister. Could this lead to conditions not having to be implemented or acted on? If so, in what circumstances can that happen? For example, in response to the Killian Pretty report, the then Government identified the use of approved contractors and a fast-track appeals process for matters concerned only with the discharge of conditions. Have the Government given any further consideration to that route, rather than the one adopted in this clause? What research have the Government undertaken to determine why local authorities are not responding to the application for consent, agreement or approval in due time? What is the extent of this failure? In how many local planning authorities has this happened, and how frequently? What consideration have the Government given to the potential negative effect of this clause in discouraging some essential conditions on the basis that the local planning authority has the capacity to deal only with other, fewer conditions—thereby impacting on the quality of development? What is the Government’s assessment of the capacity of local planning authority departments to deal with this, given the huge reductions in funding that local authorities have had to endure?

These are hugely important issues that go to the heart of our planning process, and I look forward to the support of other noble Lords and the Minister’s response. I beg to move.

[Baroness Andrews]

My Lords, it is with some concern that I rise to address these amendments and to support the thoughtful and measured way in which my noble friend has introduced them, including the debate on whether the clause should stand part of the Bill. I shall focus on a specific aspect that comes within the scope of the clause stand-part debate.

I am very concerned about this, and I speak, in part, on behalf of a wide range of heritage organisations. I no longer have a hat on, and therefore no longer have an interest to declare. I am, however, still very engaged with the work of organisations ranging from English Heritage and the Heritage Alliance to the British Archaeological Association and many others. Their concerns exemplify some of the major concerns that have been raised by noble Lords about the impact of the clause as a whole. These organisations understand very well how easy it is to destabilise the planning system. They were engaged first-hand with the creation of the National Planning Policy Framework, with all the checks and balances that took a long time to work out. It is, in fact, an important and delicate balance, which we would be wise to ensure that we stick to. Of course, they are also concerned, not just with the monuments, but with the everyday, ordinary environments in which we live in this country: our towns, villages and everywhere else. The fact that Clause 20 has raised such profound concerns among these senior organisations should give the Government pause for thought.

I see in this clause yet another attempt to wrench the planning system around in a way that is deeply inappropriate. Over the past few years we have seen the Government reach for the planning system as a recourse and sometimes as a first resort, to try to tackle problems which are far more fundamental, being rooted in economic and social problems. Planning is not the problem. I am afraid that I see this as another casual, Pavlovian response to problems which have their roots in the lack of capacity of local authorities and the complexity of what it takes to have a balanced planning system. This clause will have very perverse—even disastrous—consequences, and my noble friends are quite right to speak with seriousness about it.

I understand the frustration that comes from delays in the system and that the provision is intended to address the stalemate of “no response” from local authorities. But my goodness, what a hammer has been picked up here. It is so broadly cast at the moment, as my noble friend said, and it is not at all obvious what safeguards are to be put in place. I say to the Government: given what local authorities, developers and communities are facing in the maelstrom of planning at the moment, yet another element of uncertainty is really bad news.

I will explain how I think that will affect what happens to what we call heritage protection, which is shorthand for ensuring that our historical environment is accommodated within our future plans and contributes to them in an economic and social way. Much of our heritage protection is effected through conditions attached to outline planning permission, because it is detailed work. Archaeological surveys and design detailing of extensions and new buildings—for example, to cathedrals or to some of our historic monuments—are very often secured by conditions. The department knows this very well. They are fundamental to heritage protection—to what we end up with: what it looks like, what it feels like and what it will do. That is what is at risk here. I therefore ask the noble Lord: what will be the situation vis-à-vis outline planning permission? Can we take it that the situation will be different in the future in relation to both outline planning permission and conditions? Can I please have a clear answer on that?

Of course, we are aware of the need for best process. However, we have to ensure that the process does not sacrifice the best outcomes for what we all want by means of the outcome of the eventual planning decision. Therefore, while it is the applicant’s right to have their application for discharge of the condition dealt with fairly and expeditiously, clearly the historic environment agencies would be very concerned by a provision that meant simply that if the applicant heard nothing back, the condition was discharged.

We all know what it means to be overwhelmed by work. The volume of letters and e-mails we get in this House alone is not as great as it is for Ministers but we know what the noble Lord means when he says that things get overlooked and slip by. As my noble friend said, we are looking at issues of capacity here. Perhaps the Minister could write to tell me how many planning officers have been lost from local authorities across the country. That is a bit onerous, but I know that surveys have been carried out by the Local Government Association, for example, and by English Heritage. Perhaps the Minister could help us to focus on exactly what lack of capacity we are looking at. We know that they have lost many senior and deeply experienced staff; there has been a sharing of jobs; and altogether, a huge strain has been placed on planning departments in recent years. I am not making that an excuse for shoddy work, but it is all too easy for planning departments simply not to be able to do things in the time allocated these days, and there is a huge amount of pressure on them—we must realise that.

The sector would certainly like clarification that safeguards will be put in place to protect the historic environment from any unintended consequences arising from this clause. Any system that allows decisions by default on such important matters is very perilous. Our historical environment is extremely fragile. Once it is gone, it is gone. The safeguards put forward in some of these amendments are certainly worth looking at. They include allowing the LPA to extend time for consideration where there is reasonable justification, or a second notice requirement from the applicants subsequent to the application to invoke the default provision if they have heard nothing back. The latter is to reduce the risk of the application having been overlooked.

We are determined to pursue this clause and its implications, for very serious reasons. I have spoken about the historic environment, but the same problems apply to the natural environment and many other aspects of decision-making where everything depends on the quality of the judgment and the detail that is set out in conditions, because that is what makes the difference between good planning and bad planning, good design and bad design and places that are worth living in and places where we think, “Why on earth did they let that happen?”. I hope the Minister will take that seriously.

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[Baroness Stowell of Beeston]

I am always eager to make sure that noble Lords do not leave here unhappy. On this occasion, and especially having felt that I was not doing what I always seek to do with my noble friend, I can confirm that the Government will respond to the consultation before we get to Report. That response will be available.

[Lord McKenzie of Luton]

I thank the Minister for her detailed and full response to the range of points that were raised. Clearly, we need to look at the record and reflect on our concerns and the extent to which they may have been met by what the Minister said. I, too, had a question on the consultation but I am reassured to know that we will see the response by the time we come back at the end of the summer.

We probably need to spend some more time on the issues around Killian Pretty. The deeming of an application of conditions was only one of the possible solutions recommended for tardiness in the discharge of conditions. I asked why the Government did not pursue the other two rather than adopting the mechanism in the Bill. Like my noble friend Lady Andrews, I am still not clear about the reasons for the extent of the tardiness, if there is tardiness, and why it is happening. The noble Baroness said that this issue does not have the priority that getting permission has, and that therefore it sort of drifts. That seemed to be the import of what she was suggesting. We would like to drill into that a bit further.

I thank all noble Lords who have spoken on this amendment. They raised a range of concerns, which may have been satisfied to a greater or lesser extent—or not at all—by the Minister’s response. My noble friend Lord Whitty certainly expressed concern about the draconian nature of the provision. Even given its safeguards, it is a powerful tool which the Government are deploying. Like the noble Lord, Lord Jenkin, I imagine from what has been said that we will be able to see at least a copy of a draft order, presumably, as part of the consultation response when we come back after the summer. My noble friend Lady Andrews raised important issues around safeguards for heritage. Again, I guess we will have to see the extent to which they are satisfied in practice. My noble friend Lady Donaghy made a powerful point about the well-being of individuals and community cohesion, and whether this provision might disrupt that.

I think that the noble Lord, Lord Tope, got an answer to his question on whether this is a case of failure to respond or failure to agree. It is clearly the former, not the latter. Doubtless, he is reassured by that but, again, he stressed the need for evidence. This has been a helpful debate. I will, of course, withdraw the amendment as we are, after all, in the Moses Room, but we will need to reflect on the Minister’s response as I am not sure that it has dealt with all our concerns. I hope that some of those concerns will be alleviated by the process before Report. I cannot guarantee that they will all be alleviated, so we may return to the issue. Having said that, I beg leave to withdraw the amendment.

Amendment 79D withdrawn.

--- Later in debate ---

[Lord Best]

My Lords, I declare the interest that I did not need to declare in my previous amendment, which is that I am president of the Local Government Association, which supports both these amendments. I see them as complementary to our earlier debate on nationally significant infrastructure projects.

I very much hope that wherever a local authority wants to get on with it and do these things, we should give it every possible encouragement. I hope that these amendments are both acceptable to the Minister but would just add that it is likely that housing associations would play a very significant role in the development corporations. Many local authorities will not themselves be undertaking development on such a scale, and co-operation and partnership with housing associations will also be incredibly important in making the development corporations work.

[Lord McKenzie of Luton]

My Lords, we are happy to support these amendments. I say only, in relation to the proposal to have one local authority elected member, that the key thing is not so much status on a board and voting rights but the imperative of engaging with the local authority. That is probably behind the amendments, which I am happy to support.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend Lord Tope for explaining the background to these amendments. As I said in response to my noble friend Lord Jenkin in an earlier debate, it is not that the Government do not support the purpose of what a local development corporation could achieve in terms of what a local authority could get from that.

We believe that what a local development corporation could achieve is possible for local authorities to do already. They already have plan-making and development control powers for their areas and powers to acquire land compulsorily where necessary. Should they wish to focus on particular geographic areas, they can, under their general powers of competence—new powers brought in by this Government—make appropriate arrangements to do so, whether informally through a sub-committee or through a formal structure such as a limited company. For example, Liverpool has set up a mayoral development corporation to drive growth and development in the city without there needing to be any specific primary legislation providing for this. Where local authorities want to work together to secure the development of an area that crosses local authority boundaries, they are able to pool their planning powers so that decisions about that area can be taken in one place.

It is quite a straightforward measure but I feel that, as I have already explained, because the powers are already there for local authorities to act in this way, I have very little more to add to that, really, in responding to the debate.

[Lord Tope]

I am grateful to the noble Lords, Lord Best and Lord McKenzie, for their support and to the Minister for her reply. I have no choice but to withdraw the amendment.

[Lord McKenzie of Luton]

Will the Minister just explain again? Are we saying that any powers that could accrue and be put in place for a local development corporation are, in total, otherwise available to a local authority on an individual or a joint basis? Is that what the Minister is saying?

[Baroness Stowell of Beeston]

Will the noble Lord clarify what he means by joint?

[Lord McKenzie of Luton]

I thought the Minister said it is possible for local authorities to do certain things together with other authorities in terms of planning powers; they could share those. Is that the totality of the powers that a local development corporation could have available, or are there things that are excluded?

[Baroness Stowell of Beeston]

I hope that my noble friend, Lord Tope, will forgive me if I have in any way short-changed him in responding to this. I felt that I did not want to go off into great detail, as it seemed quite straightforward. I can also say to the noble Lord, Lord McKenzie, that the answer to his question is yes. They have the powers available and they can work together jointly, as I have described. There is a principle in what the noble Lord is seeking to achieve through this. It is available and possible; they can do it and there is nothing standing in their way to take advantage of the powers that already exist.

[Lord McKenzie of Luton]

If I may ask one further question, would a local development corporation be in a position to hold its own assets, effectively through a corporate structure? Would that be different to how a local authority might hold them?

[Baroness Stowell of Beeston]

Does the noble Lord mean to ask whether a local development corporation would have greater powers? Based on the information I have and the answers I have already given, I think the answer to that has to be no. They would not have any additional powers. As I said earlier, the local authorities can set up a limited company. That is available to them; in Liverpool, they have already set up a mayoral development corporation to deliver what this amendment seeks to achieve.

[Lord McKenzie of Luton]

So just to be clear, they could set up a local development corporation.

[Baroness Stowell of Beeston]

Yes.

[Lord McKenzie of Luton]

Splendid.

[Lord Tope]

My Lords, I reassure the Minister that I did not feel short-changed and that I feel even less short-changed now. I beg leave to withdraw the amendment.

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[Lord Best]

I will not prolong the debate late on a Thursday, but I add my support to this amendment and note again that the LGA is keen on it. The major housebuilders have moved up from building 46% of the nation’s housing to building 70%. We are becoming incredibly dependent on a handful of very large housebuilders and we need to get back to having the SMEs, the small and medium-sized housebuilders, getting back into business. Many were wiped out during the credit crunch, the recession, and we need them back again. This is a way of ensuring that they can come back, because what they lack is the opportunity to get their hands on land. This is made easy for them by the use of the custom-build technique and this amendment would help in that process. In Germany, they build something over 40% of all their housing on this basis of land being assembled and housebuilders building sometimes a single house but sometimes several houses on the plots that are made available.

There is a slightly sinister aspect to the bringing back of the SME housebuilders, which is the notion that the smaller housebuilders and those developing smaller sites—smaller housebuilders and smaller sites often go closely together, because the big players do not want to deal with small sites—would not in future have a requirement for the provision of affordable housing attached to the consent. It is a government concept, which has yet to be enshrined in any way but is subject to consultation, that sites with perhaps fewer than 10 homes would not be required to have any affordable housing within the mix. One might think that with 10 homes that does not much matter, but in rural areas nearly all the village schemes for affordable housing for local people are of fewer than 10 homes. Something like 70% of all rural schemes are of fewer than 10 homes. The thought that this will help small housebuilders to do more is misguided.

It is the land, which is the subject of this amendment, which is preventing the small players doing the kind of housebuilding they used to do. They cannot get their hands on sites. It is not that they need to have special concessions and reduce the amount of affordable housing that they build, just as it is not the case that smaller schemes should have the requirements removed from them for sustainable housing for the move towards carbon neutrality by 2016. This amendment seeks to bring back those small and medium-sized housebuilders. Those amendments which seek ways of lowering standards or of removing the requirement for affordability are missing the point. It is this one which would help bring back those housebuilders in such a way that we do not make any sacrifices in terms of quality.

[Lord McKenzie of Luton]

My Lords, I am happy to support this amendment and I support the points made by the noble Lord, Lord Best. Doubtless, the Government will make reference to their custom-build fund, which was announced a couple of weeks ago. As for our plans for custom build, we support an actual requirement on local authorities to include a higher proportion of small sites in their five-year land supply, in order to boost small and custom build, and to guarantee access to public land for smaller firms and custom builders. As I think I said before, to make sure that we give people the chance to sign up to a waiting list for custom build, co-operative homes or community land, trust projects with local people have been the priority. We are certainly supportive of custom build, but we await with some trepidation the outcome of the Section 106 consultation for smaller sites.

[Baroness Stowell of Beeston]

My Lords, I am very grateful to my noble friend Lord Tope for tabling his amendment. This is, as he suggested, not because I think it is necessary in order to achieve an increase in custom build, but because it provides us with an opportunity to discuss and debate this important matter. This Government very much support custom build and are doing a lot to enable it. The noble Lord, Lord McKenzie, outlined the way the Opposition propose to approach this issue. However, it is worth noting that, sadly, when they were in government there was no advancement in this area, so we have some ground to make up.

Finding a suitable building plot remains the single biggest barrier holding back thousands of new projects every year. Of course, some councils already provide land for custom build. For example, at Bicester, Cherwell District Council is bringing forward land for up to 1,900 custom-build homes. However, the Government want to do more to help custom builders and support this growing industry. I note what the noble Lord, Lord Best, said. This is an important way of encouraging those smaller building firms as well. That is why we announced a further package of measures in the Budget to tackle this problem. Last week, we invited local authorities to apply to become right to build vanguards. Later this year, the Government will consult on creating the new right to build, which will give custom builders the opportunity to buy suitable shovel-ready plots of land.

Local authorities are already required by the National Planning Policy Framework to assess and plan for their housing needs and our planning guidance makes clear that this should include people who want to build their own homes. Those authorities forging ahead on custom build show that they already have the powers they need to support custom building. They can also already recover the costs of sales. Stoke-on-Trent City Council is doing just that and other authorities such as Cherwell, as I indicated, plan to do the same. The Government are keen to continue to consider what we can do to support custom builders but, as I said, I do not feel that this particular amendment is necessary to do that. I wholeheartedly agree with my noble friend that we want to see more local authorities doing more to support custom build.

The other thing is that most noble Lords who contributed to the debates this afternoon are more experienced in the field of housebuilding and planning than I am. However, my father worked in the building trade and I feel very much that, when we talk about custom build, we should be careful to ensure that we paint a picture to people that it is not just the preserve of a small minority or a certain kind of people. Custom build should be available to everybody. With the measures the Government are putting in place, we are firmly on the path to realising that ambition. I am grateful to my noble friend Lord Tope for giving us this opportunity to discuss this matter, albeit briefly, but I hope he will none the less withdraw his amendment.

Infrastructure Bill [HL]

Lord McKenzie of Luton Excerpts

Wednesday 18th June 2014 Lords Chamber

[Lord McKenzie of Luton (Lab)]

My Lords, as others have described, this is a hotchpotch of a Bill with important chunks still missing—perhaps more than we thought—and key related consultation processes still running their course or with conclusions yet undisclosed. In infrastructure parlance, the Bill could hardly be called shovel ready. Therefore, we have an intensive job to undertake to evaluate its impact on growth, and to address how it contributes to increasing housing supply and to mitigating the housing crisis that we face in this country. I propose to focus my efforts on Part 3, which relates to planning and land.

The CBI, in its submission to us for today’s debate, identified that the Planning Act 2008 has already helped to boost investor confidence by creating a fast-track approach with clear milestones and decision-making points. That is not to say it cannot be refined and improved in the light of practical experience, which Clauses 17 to 19 purport to do as part of a wider implementation plan following the recent consultation. As my noble friend Lord Adonis said, we can support the changes relating to the appointment of an examining authority and the flexibility of two-person panels, although it remains to be seen whether the savings proposed will materialise.

We intend to probe the proposals for a new process of making development consent orders but are in accord with what the Bill is seeking to achieve. We note that a consultation is to be launched on a revised process but not until August of this year, which means that we are unlikely to have the benefit of the Government’s response by the time we conclude Committee or even all stages of the Bill. Perhaps I may ask the Minister why this cannot be expedited.

The provisions in Clause 20 are altogether more concerning. As we have heard, the clause would permit the deemed discharge of a planning condition such that a local planning authority would be unable to take enforcement action or stop development. As the Minister identified, the need to improve the approach to planning conditions was flagged in the Killian Pretty review commissioned by the previous Government and acknowledged then as needing to be addressed. We propose to examine whether the approach in Clause 20 is the best way of doing so.

Certainly, we would view with great caution anything which undermines the role of the local planning authority in the planning process. We have already seen in the Growth and Infrastructure Act opportunities for developers to bypass a designated local planning authority and, on the basis of a government consultation just concluded, for the criteria for designation to be tightened. That same consultation also covered possible changes to affordable housing contributions and the proposal to introduce a new 10-unit threshold for Section 106. Will the Minister tell us when we might expect the Government’s response to this part of the consultation because its implications for an already dire affordable housing situation could be very grim, particularly for rural communities—a point to which I think the noble Lord, Lord Cameron of Dillington, referred? Is it proposed that this Bill would cover this issue?

Perhaps the Minister might also say when we might expect the Government’s response to the allowable solutions consultation to pave the way for zero-carbon homes and details of how the small builders’ exemption is to work in a way that does not fundamentally undermine the policy. When will we see this legislation?

I acknowledge the briefing from the RTPI, which sets out the position on planning conditions with its usual clarity and focus. It recognises the concerns over the growth and breadth of planning conditions and we would agree with its view that the need for conditions attached to planning consent should be necessary and proportionate, and that they should be discharged safely and expeditiously so that development can proceed quickly.

We are reminded also of the essential role of planning conditions, which is to make an otherwise acceptable planning application acceptable; that is, to support development. We share the view that the widespread use of Clause 20 could undermine local planning authorities’ attempts to approve more marginal applications, thus having the perverse effect of holding back approvals. The extent of the conditions to which the clause could apply is also unclear and there is the fundamental matter of whether it applies to conditions laid down on behalf of statutory consultees. If so, how is it to be assured that such consultees expedite their work?

The RTPI suggests that the intention is to focus on inconsequential and burdensome information requests. Perhaps the Minister would clarify whether that is the position. Where would that leave conditions which focus, say, on the management of construction works, which can play a vital role in ensuring the health and safety of workers and the public? We would be concerned about artificial timescales being applied to the operation of these provisions that do not fairly reflect the resource position of councils, many of which are struggling to maintain their planning departments.

We would also wish to explore the need for protections where it might be the actions or inactions of developers that are frustrating the ability of the local planning authority to respond within a given timeframe. We would prefer these matters to be taken forward by joint working between developers and local planning authorities rather than via another centralising measure.

We hear that the Government's public sector land programme is to be facilitated by enabling existing arm’s-length bodies to transfer land directly to the HCA rather than first to the parent department. We can see the intrinsic merit of this change in reducing bureaucracy and speeding up the release of land for new homes. However, we need to be reassured that with the parent department out of the loop there will be no loss of accountability and transparency in determining what land is to be released for development. The Minister will be aware—she referred to it in her opening speech—of concerns expressed about the designated sites and irreplaceable habitats and the Public Forest Estate being sold off. Similar issues arise in respect of the ability of the HCA, as well as the GLA and mayoral development corporations, to transfer land without the easements, rights and restrictions that they have suspended being revived.

Our briefing note suggests that this is doing no more than replicating the position of those currently purchasing from local authorities and other regeneration bodies. The Minister called it an oversight. Nevertheless, concerns have been raised about the extent to which these powers might interfere with the public interest and we will need to probe the boundaries of these proposals and whether specific exemptions would be appropriate. Again, the Minister may have dealt with this by referring to the fact that these impact only on private and not public interests.

Clauses 23 and 24 bring us to another area of considerable controversy. These measures involve the transfer of responsibility for local land charges from local authorities to the Chief Land Registrar, the maintenance of a fully electronic register of land charges and the extension of the powers of the CLR to provide wider property services. These changes have been the subject of a consultation conducted by the Land Registry that closed on 9 March, with some 70-odd pages of government response being delivered just a couple of days ago—which was not the most helpful timing. So far as one can gather from an initial reading of the government response, it is effectively rubber-stamping the original proposals, although the 15-year cut-off for digitalising the charges register is to be removed.

However, wider concerns arise from a parallel BIS consultation—to which there has as yet been no formal government response—that promulgated the creation of a separate Land Registry service delivery company distinct from the office of the Chief Land Registrar, which would remain responsible for policy. Although the consultation sets out several possibilities for ownership and control of the service delivery company, there is a growing suspicion that the agenda is for it to be privatised, and that, the consultation notwithstanding, the Government have already discounted the service remaining in public ownership. Will the Minister categorically confirm today that this is not the case and that it is not proposed to privatise this service?

We have seen no compelling case for the privatisation of a government agency which, as my noble friend said, routinely returns good profits to the Treasury—some £98 million last year—and references to greater flexibilities to operate around pay and recruitment have a familiar ring. The botched sale of the Royal Mail gives us no confidence that the Government will secure value for money on a privatisation.

The matter of corporate structure and ownership is not currently in the Bill, but it inevitably overhangs consideration of the proposal for a central land charges register and the transfer from local authorities, and the fear that it is being fattened up for privatisation. For those reasons, we have called for a proper independently run consultation on the central register proposition. These things are important. The Land Registry plays an essential role in the functioning of the property market. Its principal purpose is to keep a register of title to freehold and leasehold land and charges throughout England and Wales, and to record dealings in such land. Local land charges are the mechanism whereby purchasers can seek information about a property. The integrity, ease and efficiency of these arrangements are of paramount importance and it is against these requirements that propositions for change should be judged.

We are entirely supportive of a programme of continuing improvement of the service offered, including embracing digitalisation, although the Law Society points out that this is not the most pressing issue in the conveyancing world. Despite acknowledged improvements in recent times, there is more to be accomplished in terms of consistency of approach across local authorities, quicker turnaround times and more transparent charging, and we need to examine alternative approaches to achieving this as well as that proposed in the consultation.

Of course, the government proposals are not without risk. Local land charges involve inquiries of local authorities of the land that they hold. The search comes in two parts; entries on the register of local land charges and the answers to queries put to local authorities—form CON29, I think it is called. The Bill would centralise the register but the CON29 inquiries would remain directed at local authorities, so we would need to scrutinise the consequences of this fragmentation, particularly as the two sets of inquiries are invariably made together and the answers to each can be interdependent. Answers to entries on the register might comprise details of conservation areas or listed buildings. Answers on CON29 might include the planning and building control history and whether nearby roads are maintained at public expense.

It is understood that the CON29 facility is non-statutory. Have the Government given any thought to what would happen if hard-pressed local authorities terminated their services? As the LGA points out, centralisation makes it more difficult to integrate advice on planning, highways and other locally regulated services. Moreover, there are likely to be adverse financial implications for councils, which will lose income from land charge fees but still have to deal with local queries and manage data co-ordination.

The Bill before us is incomplete and incoherent. It has some useful provisions that will help speed up infrastructure provision and facilitate the much-needed building of housing. However, it fails to deliver a long-term step-change plan to tackle our housing crisis or to provide a vision for doing so. That will have to await a change of government.

--- Later in debate ---

[Baroness Kramer]

There will be a response to the consultation, but it is not the intention of the Government to provide for that in the Bill or, as far as I know, in any future legislation.

[Lord McKenzie of Luton]

If it is not the intention to seek privatisation by this mechanism, can the Minister confirm that it is not the Government’s intention to seek it in any other legislative arrangement?

[Baroness Kramer]

I certainly have no knowledge of any other intentions. As I said, there will be a proper response to the consultation. That may be helpful in clarifying any remaining questions for the noble Lord, Lord McKenzie.

I confirm that the Government are committed to England’s public forest estate and national parks remaining secure in public ownership for the people who enjoy them and the businesses that depend on them. The measure that we discussed for the HCA is about transferring surplus land from government agencies. The public forest estate and our national parks are in use; they are therefore not surplus and none will therefore be transferred to the Homes and Communities Agency. This measure does not apply to them.