Localism Bill

Lord True Excerpts

Thursday 7th July 2011 Lords Chamber

[Baroness Hanham]

My Lords, it is the Government’s intention to set out a definition of an asset of community value in regulations that will require local authorities to judge whether an asset meets that definition in particular local circumstances. It seems right that there should be some pretty clear idea of what we are talking about and what is justified.

If the local authority decides that an asset meets the definition and it was proposed by a community nomination, it is required to list. There is a “must”; it must do that, if it fulfils the ambition of the legislation. I hear what my noble friend says about leaving it to the local authority to decide what is a community asset and what is not, in its terms, but if we get it right in regulations, there should be no doubt as to what it can list and what it cannot. To leave it without the definition in the Bill would create much more room for uncertainty for both the community groups and property owners and reduce the transparency of the process.

Amendment 138 would amend subsequent wording in line with the change proposed by Amendment 137. We do not accept the amendments that my noble friend has proposed, because we think that on this matter the local authority needs to have pretty well defined parameters.

[Lord True]

I understand the point made by my noble friend the Minister, but I have some sympathy with the amendment, for reasons that she will understand from my previous interventions. I do not think that this is easy, and I look forward with interest, as many other noble Lords in this Committee will, to seeing the regulations and the guidance that her department will produce. The Minister was very receptive to that point when it was made by noble Lords two days ago and today. There are circumstances in which a local authority, using its reasonable discretion, could cut short a bureaucratic process that is pre-eminently likely to end in the rejection of a nomination. I really do not see why, taking its local circumstances into account, a local authority should not be given slightly greater freedom than is presently suggested in the Bill. I understand my noble friend’s argument and that of my noble friend Lord Howard, but in many ways I slightly move towards my noble friend Lord Howard’s because I hope that some degree of latitude and discretion will be allowed.

[Lord Howard of Rising]

The Minister said, “If we get it right for the whole country”. If it were possible for whatever is decided in Westminster to be absolutely correct from Land’s End to John O’Groats, my admiration would be endless and unlimited. The whole point of the Localism Bill is that central government cannot get it right for everyone all the time and that therefore there must be some discretion locally to make things work for each area as it thinks best. Having said that, I can see that the Minister does not want to move on this, so I beg leave to withdraw the amendment.

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[Lord Howard of Rising]

My Lords, this group of amendments seeks to remove the requirement for a local authority to give reasons for not including an asset, which has been nominated for inclusion, on its register of community assets. As has been said by my noble friend Lord True and the noble Lord, Lord Greaves, at a time when officers in local authorities are being stretched to their limits in trying to reduce their authority’s expenditure in line with the Government’s requirements, it is perverse to burden them further. Having to do the work required of them by this Bill is bad enough; if local authorities then always have to justify declining to include an asset, that must inevitably lead to a very strong bias towards officers including assets on the register in order to avoid the extra work that would be involved in justifying a refusal.

I realise, and I know from personal experience, that officers in local authorities have the highest integrity, but there would nevertheless be a strong temptation automatically to include certainly all marginal nominations and probably a number of others. Aside from the unfairness of creating this bias, ultimately it will lead to more arguments and more appeals that will, in turn, lead to much greater expense for the public purse—a worry that already concerns those of your Lordships connected with local authorities.

Over 60 per cent of referrals to the Standards Board were malicious. I should declare an interest in having been a victim of just such an accusation. There will inevitably be a number of malicious nominations for inclusion on a register of community assets. It will be time-consuming and difficult to have continually to be giving reasons for refusing this kind of nomination. Not having to justify refusal will in no way prejudice the ability of genuine community assets to get on to the register, but it will ensure a fairer consideration of what is appropriate and proper to be included on it. I beg to move.

[Lord True]

My Lords, again, I have some sympathy for my noble friend’s arguments. Any noble Lord who has seen, for example, the papers for a meeting of a licensing committee, with hundreds of voluminous pages of submissions and comments, or who reflects on the fact that I tried to draw to your Lordships’ attention earlier—that the process of a decision on whether an item should be listed is ultimately subject to appeal, as is the matter of consultation—will realise that, inevitably, however light touch it is intended to be in the first place, the process is likely to generate a large amount of natural paperwork.

I also submit that as a strong supporter of committee action, as I hope I will reveal when we discuss neighbourhood planning, I believe that those who wish to propose that a property should be listed should be prepared to take the trouble to attend a meeting and argue their case. There is a high risk that in a process that ultimately becomes subject to a test at law, whether by judicial review or by whatever other process is envisaged under the Bill, these matters will not be able to be decided by officers setting out a letter saying, “Sorry, chaps: we’ve decided we’re not going ahead with this one”. There will have to be paperwork and a process. Adding a further burden on local authorities to send out individual written notices to every body or individual who suggests that an item be listed may be extremely burdensome, in administrative terms. My noble friend Lord Howard of Rising might not have the right mechanism in what he seeks to excise from the Bill but he touches on what is, potentially, a very important matter.

[Lord Patel of Bradford]

I will be very brief. The noble Lord, Lord True, has touched upon some of the key issues and the noble Lord, Lord Howard, raises some important points. As this is a localism Bill, it should be left to local authorities in local areas to determine this, but we have an issue about the need for transparency. If a community or others go to the trouble of listing or raising issues, they need a clear and transparent response. Some balance has to be struck between reducing the bureaucracy and, perhaps, issues in regulations that allow local authorities to take the actions they want to. However, we certainly say that they should give reasons that should be clear for anyone who has gone to the trouble of putting in a bid of any kind.

[Lord True]

I agree with the noble Lord’s point on transparency. My point is simply that, given the potential legal implications here, the process would have to be transparent in the way that a licensing process ultimately is. It would therefore be a matter of public record, properly minuted and so forth, so that setting up a separate process by legislation seems otiose.

[Baroness Hanham]

My Lords, five of these amendments look to remove the requirements on the local authority to give reasons for its decisions in connection with the scheme, whether in favour or against. On those five amendments, Clause 77 provides that where a community nomination is unsuccessful the local authority must enter the land on the unsuccessful nominations list and give the nominator written reasons for the decision. Amendment 139 would remove that requirement of giving reasons to the nominator.

Clause 78 deals with notices about the lists. Amendment 140 would remove the requirement for the local authority to give reasons in its notice for removal of land from the list of assets of community value. Amendment 141 to Clause 79, which gives a landowner a right to review of the decision to list, would mean that the local authority would not have to give the owner the reasons for the decision it has taken following the review.

Amendment 141A also concerns the right to review in Clause 79. At present, if the local authority decides on a review to remove the land from the list of assets of community value, it must give a written copy of the reasons for the review decision to the person or body whose community nomination had previously been accepted. Amendment 141A would remove this requirement. Clause 80 concerns a list of unsuccessful nominations. Amendment 142 would remove from this clause the requirement for the local authority to include in the entry the reasons for not putting the land on the list of assets of community value.

These amendments would all remove an essential guarantee of transparency from the scheme. We of course expect local authorities to behave reasonably and tell a community organisation why its nomination was refused, or why an asset had been removed from the list. We would also expect them to tell an owner who had asked for a review of the decision on listing the reason for the decision. These are basic provisions that we consider essential for all community groups and landowners to be able to expect in every case if these measures are to be effective in giving communities real power. That is why we think it is important that these requirements are set out clearly in the Bill, and stay there.

Amendment 141B concerns what should be included in the procedural regulations for the review of listing. This also relates to Clause 79. At present, the Bill sets out matters which the Secretary of State or Welsh Ministers may include in these procedural regulations. The amendment would mean that these matters must be included in the regulations. This appears to take a contradictory approach to that taken in the previous amendments, as there is a request for prescription of the process but no intention to tell the owner or the nominator of the outcome. In every case it is the Government’s intention to make procedural regulations and to ensure that they contain those details that are necessary for the effective operation of the scheme.

Finally, Amendment 140A appears to be seeking to amend Clause 79, so that where an owner requests a review of the decision to list, the time limit, if any, set for the owner to make this request is not as provided in regulations. We believe that this would be unhelpful to owners of listed land as it would create uncertainty as to how quickly they should act, and would again reduce the level of transparency. I hope that, with that explanation, the noble Lord will be happy to withdraw the amendment.

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[Lord True]

My Lords, I am grateful to the noble Lord, Lord Beecham, for raising this matter. I referred to it in earlier remarks and I will not repeat what I said, but it would be extremely helpful for the Committee to see this, given the far-reaching potential range of the regulations—who is to pay, who is to be entitled, what it should be in respect of, the amount, the procedure, appeals and so on. That is not only from the point of view of the potential effect on landowners but, as I argued earlier, from that of local authorities. I would not expect my noble friend to answer this now.

I have now found the financial memorandum to the Bill—it is indeed £21 million which is suggested as the total cost to local authorities—where we are told that funding for these new burdens will be provided through the Secretary of State. I wonder whether that is the case. When the regulations are produced, I wonder whether my noble friend could give some estimate of what she thinks the total cost of compensation levied on local authorities might be, assuming that it is levied on local authorities. From the financial memorandum, it may be that the Secretary of State is going to produce the money. That is not clear to me but perhaps those things could be clarified when the note for which the noble Lord, Lord Beecham, has asked is laid before the House.

[Baroness Hanham]

My Lords, the question of regulations is not going to be in my hands. I will make sure that the request that they should be available is passed on but it is not up to me, I am afraid, to make sure that they are. I assure noble Lords that we recognise the importance of offering compensation and have said that in the consultation document.

Through the consultation we sought views on the detail of the scheme—for instance, who should be entitled to compensation, what costs could be compensated and how claims should be dealt with. The noble Lord, Lord True, asked about those matters. We are therefore sympathetic to the spirit of Amendment 147DB, but believe that it is unnecessary as we have already indicated our commitment to establishing a compensation scheme and will be making regulations to do so. I will try to ensure that we at least have sight of those.

Amendment 147EA is also not necessary because we are proposing a government amendment to add to Clause 85 the power to give a right of appeal. That would be done through regulations. This will be an additional power to give landowners the right to request an internal review by the local authority of its decision on compensation.

We consider that the proposed introduction of an external right of appeal will be more suitable than the proposal in Amendment 147EA to have the appeal referred to the district auditor, by which we presume is meant an independent auditor appointed by the Audit Commission. Their role is to check the financial—