Housing and Planning Bill

Lord Campbell-Savours Excerpts

Wednesday 23rd March 2016 Lords Chamber

[The Duke of Somerset (CB)]

My Lords, I will also speak to the other amendments in this group. I do so on behalf of my noble friends Lord Cameron of Dillington and Lord Lytton, who are unable to be here today. We have had suggestions for some of these amendments from the CLA, of which I declare my membership.

For a long time, compulsory purchase in this country has been a messy compilation of many pieces of legislation and is well overdue for reform. As time has gone on, it has become ever more unbalanced in favour of the acquiring authorities and the agents of the state. Indeed, many privatised utility operators have gained compulsory purchase powers—and apparently, at the last count, there are 172 of them.

I turn to the amendment. I mentioned in our Second Reading debate my concern that it was unfair for an acquiring authority to be able to purchase land for housing as part of an NSIP at current use values. Last week, the Minister made a strong case in resisting an amendment from the noble Lord, Lord Campbell-Savours, who wanted an agricultural use valuation for local authority compulsory purchases. He spoke of land being valued by the “no-scheme world” and said that market value took into account the effect of planning permission already granted and thus “hope value”. I therefore feel that it must follow that once an NSIP has been granted planning permission, then the value of adjoining land for housing is substantially enhanced by the very existence of the scheme. Thus, development value is established and should be applied where the proposed land for housing within one mile of such a scheme is valued. It is the same as if the land had been purchased on the open market. Will the Minister explain to the House why an NSIP should make the principle of fairness so different? It is still confiscatory. Is it the Government’s intention that the retail purchasers of the new houses should benefit from this largesse, or is it for the benefit of the acquiring authority? I find Clause 144 rather offensive.

I turn now to Amendments 103BC and 103BD. There are normally two imperative concerns for farmers and landowners faced with compulsory purchase. The first is the effect on the smooth continuation of their businesses: perhaps the splitting of the land, for example. Their second concern is how much and when they will be paid. In the past, payment has routinely been late and after entry. This is unfair and needs to be changed. Farmers already have to cope with supermarkets’ delayed payment exploitation. Moves are afoot to improve this, so why should we not legislate properly now—and in the same spirit—to establish the principle of payment in advance of entry for compulsory purchase? In these circumstances, owners face extra costs and need promptly to replace assets lost in order to continue in business. Why should they have to delay or borrow—through no fault of their own—to continue their businesses?

The Government have proposed to improve the interest rates applicable, but I do not believe that they are realistic or raised to the commercial rates of lending. The CLA has suggested rates in line with late commercial payments, and those are similar to those set out in Amendment 103BD, which I support. I believe that the Government are consulting on this, and I await the outcome. Nevertheless, the principle must be payment in advance or no possession, with proper interest rates applicable for failure to follow that. At any rate, it should be cheaper to do this, as landowners will be disinclined to fight the order knowing that they will get a fairer price for their assets. Of course, if the primary principle is adhered to, there should be no need to invoke the 8% penalty rate that is mentioned in the amendment, as the standard 4% rate should encourage the authority to pay promptly.

Acquiring authorities are in a strong position while negotiating, so Amendment 103BF in this group is consequential. It would help to prevent bullying by introducing a new duty of care to ensure fairness between the parties by setting out guidelines on behaviour. This is in effect a good-practice clause, which is needed as acquiring authorities usually have the upper hand in negotiations against the landowner, who is thus in a weaker position.

Other amendments in this group in the name of my noble Earl, Lord Lytton, are intended to tidy up a series of procedural anomalies and have been suggested by the Compulsory Purchase Association, of which I am not a member. Amendment 103BAA is necessary to safeguard the acquiring authority’s position where—even though it exercised due diligence in seeking to identify those interested in the land and entitled to a notice to treat—after serving notice of entry it becomes aware of a previously unknown person with a relevant interest in the land to be acquired.

Under the current provisions of the 1965 Act, if new interests come to light between serving a notice to treat or notice of entry and taking entry, a new notice needs to be served, resulting in 14 days’ delay. This does not give rise to serious problems at present with only 14 days’ notice of entry but it would become a significant problem with the longer notice period of three months proposed in the Bill.

Acquiring authorities rely on information provided by claimants as to who has a relevant interest in land. I am told that it is quite common to be provided with incorrect information, such as trading names rather than company names or the names of individuals. If an acquiring authority has acted in good faith in serving the notices, such as relying on information provided under Section 5A of the Acquisition of Land Act 1981—the questionnaire requiring information on legal interests—it should still be entitled to proceed, which is what this amendment would facilitate.

Another material adverse side-effect of the Bill’s provisions as drafted is that those served with notices could effectively ransom a promoter by creating a new interest every time a new notice was served. Controversial projects could simply be prevented from ever acquiring land by opponents to the scheme using such a device. This amendment would therefore also prevent acquiring authorities potentially being ransomed by the creation of a new interest in land after service of a notice of entry.

Amendment 103BG relates to circumstances where a claimant considers that the land proposed to be compulsorily acquired cannot be taken without material detriment to the remainder. This is sometimes referred to as the “all or nothing” provision and it is already contained in the compulsory purchase rules under Section 8 of the Compulsory Purchase Act. The amendment is necessary to ensure that, subject to adequate notice, the acquiring authority is able to take possession of the land originally proposed to be acquired, even where the owner has served a counter-notice requiring additional land to be taken. This is the same as the current position and it works quite effectively without any prejudice to landowners who contend that the acquiring authority should also be obliged to acquire more land than that initially proposed to be acquired. However, paragraph 5(a) of new Schedule 2A in Schedule 17 to the Bill provides that on service of a counter-notice, all notices of entry relating to any interests in the land proposed to be acquired would cease to have any effect. As such, this would have a seriously deleterious effect on the timing and costs involved in compulsory purchase and on implementing a project. This would not arise if the Bill were amended as proposed.

Finally, Amendment 103BH is necessary to give effect to paragraph 5 as amended in the way that I have just proposed. I beg to move.

[Lord Campbell-Savours (Lab)]

My Lords, I do not want to exhaust the patience of the Committee but once again I draw attention to the fact that the problem of high housing prices in this country stems from the cost of land. These amendments, clearly promoted by the Country Land and Business Association, which represents the interests of landowners—the people who will benefit from the exorbitant and inflated prices being paid for land in the United Kingdom—should be opposed by the Committee. I oppose them, and anyone with any sense will oppose them, as will the great majority of the British people.

One day we are going to have to deal with the problem of inflated land prices in the United Kingdom, which are almost unique in the world outside of the great capital cities, and we are simply ignoring it. This situation cannot carry on as it is. We are removing the right of millions of people—whole generations—to own their own home, unless they are prepared to take on huge mortgages, simply to fill the pockets of people who own land. I object, as no doubt do the great majority of the British people.

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[Viscount Younger of Leckie (Con)]

My Lords, I turn to the detail of the compensation amendments, Amendments 102CK and 103BB, tabled by the noble Lord, Lord Cameron, and the noble Earl, Lord Lytton, but spoken to today by the noble Duke, the Duke of Somerset.

I will outline briefly the principles of compensation for land taken by compulsion. These points have arisen in an earlier amendment in Committee. The compensation code is underpinned by the principle of equivalence. This means that the owner should be paid neither less nor more than his loss. The code provides that land shall be purchased at its open-market value, disregarding the effect of the scheme underlying the compulsory purchase.

The land is valued in a construct called the no-scheme world, whereby any increase or decrease in value that is due to the scheme is disregarded. Land will always have its existing-use value but market value also takes into account the effect of any planning permissions that have already been granted and of the prospect of future planning permissions. This is generally known as hope value, as the noble Duke eloquently pointed out. In the context of compensation for compulsory purchase, this is assessed according to the planning assumptions in the Land Compensation Act 1961, which require the valuer to assume that the scheme underlying the acquisition is cancelled. I remind the House that these were extensively revised and debated in the Localism Act 2011.

In some situations, there will be no hope value, because the individual claimant could not have obtained planning permission for some more valuable use. For instance, the land might be in an isolated rural location where permission for development would have been unlikely to be granted in the absence of a comprehensive scheme requiring compulsory purchase powers. In other situations, perhaps where land is acquired near an existing settlement, there will be pre-existing prospects for development on the land. In lay man’s language, that is development potential that existed prior to the scheme. The strength of those prospects will be reflected in the market value of the land.

On Amendment 102CK, it has been said that land acquired for housing by means of a development consent order should always attract development value. If the land had development potential in the absence of the scheme underlying the development consent order, that hope value would be reflected in the market value and the compensation to be paid. But an increase in the value of the land that is solely attributable to the scheme would be disregarded under the compensation code.

I turn to Amendment 103BB. The noble Lord, Lord Beecham, and the noble Baroness, Lady Andrews, have suggested that there is something unique about the land taken for new towns that requires the Secretary of State to provide a formula for compensation. New towns may well fall into the class of case 1 mentioned earlier, where there is no pre-existing hope value, as there is no reasonable prospect of development in the absence of a comprehensive scheme requiring compulsory purchase powers. In this situation, compensation in the no-scheme world is likely to be at or close to agricultural values. Schedule 1 to the Land Compensation Act 1961 makes it very clear that for new towns any increase in value that is attributable to the development of other land in the new town must be disregarded, where that development would not have been likely to be carried out had the area not been designated as a new town.

I thank the noble Earl, Lord Lytton, for the amendments spoken to by the noble Duke, the Duke of Somerset. I suspect that your Lordships will not be very keen to be further enlightened this afternoon by a technical debate on these particular matters. However, we shall look carefully at what the noble Duke said, and I shall write further to him and the noble Earl before Report about these matters.

[Lord Campbell-Savours]

The Minister said that he will write to the noble Duke. Can we all see a copy of that letter, and can we have an assurance that there will be no movement, no concession made to the CLA, in this area?

[Viscount Younger of Leckie]

I am not in a position to make any guarantees this afternoon, but I will certainly include all noble Lords who have taken part in this debate, and copies will be placed in the Library of the House.

I turn to the compulsory purchase policy elements and Amendments 103BC to 103BF. I am very grateful to the noble Lord, Lord Cameron, and the noble Earl for raising these important matters, again spoken to by the noble Duke, the Duke of Somerset. They concern the matter of ensuring that advance payments of compensation are not only paid, but paid on time. This links to the equally important question of the way that acquiring authorities should treat claimants when land is being purchased by compulsion.

Starting with Amendment 103BC, having considered the responses to the spring 2015 consultation, the Government think that penal rates of interest on outstanding advance payments are the most appropriate sanction, and we are providing for this in Clause 174. Taken together with the new arrangements for making claims and obtaining further information in Clauses 172 and 173, we think that the prospect of a penal rate of interest will sufficiently concentrate the minds of acquiring authorities, so that advance payments will be made on time.

I now turn to Amendments 103BD and 103BE. The Government think that setting interest rates in a Bill is too restrictive. Provision to set both rates is available in secondary legislation. Coming to the detail of the amendments, the Government think that it is premature to decide on the punitive rate of interest for late payments of advance payments of compensation—as proposed in new subsection (1A) of new Section 52B in Amendment 103BD. The noble Lord, Lord Cameron, and the noble Earl, Lord Lytton, will know that the Government published our consultation paper on phase 2 of our compulsory purchase reform programme on 21 March. The good news is that the paper proposes that 8% above the base rate should be the punitive rate for late payments of advance payments.

The second part of Amendment 103BD—proposed new subsection (1B)—would overtake the existing provisions in Section 32 of the Land Compensation Act 1961 to set the rate of interest for compensation unpaid at the date of entry. This rate is not punitive, as there are often legitimate reasons for some compensation to be unpaid at that date. The final claim for many businesses, for example, cannot be finalised until their relocation has been completed.

Noble Lords will recall from the spring 2015 consultation that the Government consulted on increasing this rate of interest from 0.5% below the base rate. The Government confirmed in their response to consultation that the rate would be increased to 2% above the base rate. The Committee will be interested to hear that new regulations are in preparation by the Treasury and will be published in due course.

The new rate of 2% above base is intended to achieve an equitable and fair settlement between the claimant and the acquiring authority. The interest on unpaid compensation from the date of entry is not the same as the interest on commercial lending. It may be helpful if I say that it is more likely that it will be based on a formula which will compensate the claimant for interest which he or she would otherwise reasonably be receiving, had the money been otherwise invested. We can have a separate debate on that, I am sure.

I now turn to Amendment 103BF, which focuses on introducing a statutory duty of care to be owed by acquiring authorities to claimants. There is no doubt that claimants should be treated with fairness and courtesy and kept up to date with developments. This is best practice, and all competent professionals should be advising their clients to act in this way. The Government believe that a new statutory duty of care for compulsory purchase is not necessary and would not help relations between acquiring authorities and claimants. The kind of assistance which should be provided by an acquiring authority may differ depending on the circumstances. A broad duty of care may be imprecise in nature and difficult to enforce. The professionals working in compulsory purchase suggest that clear guidance on good practice would be a better way forward.

The recently updated compulsory purchase guidance, published on 29 October 2015, makes it clear that acquiring authorities should make reasonable offers of compensation in the context of overall project costs. Acquiring authorities should also be prepared to engage constructively with claimants about relocation issues and mitigation and accommodation works where relevant. The guidance also urges acquiring authorities to offer those with concerns about a compulsory purchase order full access to alternative dispute resolution techniques, from the planning and preparation stage to agreeing the compensation payable for the acquired properties. With these explanations, I ask the noble Duke to withdraw the amendment.

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[Lord Deben]

I am so pleased that I tempted the noble Lord to intervene at that stage, because I can now tell him that I tried to change the law on that when I was the Minister, and who opposed me? Every blooming local authority—they were the ones who demanded to keep this power and said that it was so important. So I want us to come back to what the Government are asking. This is entirely relevant. I am glad that it is amusing to the noble Lord, but I believe it to be central to the amendment. The Government propose that we give the Secretary of State the power to see whether there are alternative ways in which to handle something that, in the noble Lord’s words, is in many ways bust. That is what he says, but if it is bust, would not it be a good idea to see whether there are ways of unbusting it? This is one of the suggestions.

What do we get? Not a series of suggestions about how we might refine it, improve it, make the tests rather better or come forward with various suggestions about how the various pilots might be carried through. Instead, we get an onslaught on the basis that the only people who can do this are local authorities or public bodies. The Government have produced something which is worth trying. If it does not work, we have not done anything bad. If it does work, we have learned something. The worst thing in politics is to say that we cannot do something because we have not done it before, that we cannot do something because it will not work or that we cannot do something because we do not want to try. This is the moment when we ought to say that we may be a very old House and many of us in it may be very old, but at least we are young enough to recognise that it would be a good thing to have a go at something different.

[Lord Campbell-Savours]

My Lords, I listened very carefully to the noble Lord, Lord Deben. He seems to think that the problems that might arise—I think he used the words “might arise”—should not really concern us at this stage. That is what Parliament is about. It is about identifying issues, legislating and, in the event that we foresee problems arising, amending our position to ensure that those problems are avoided.

I want to target a very narrow area. It is the issue raised by the noble Lord, Lord Greaves, about the relationship between the planners in the planning authority and the planning contractor in the meeting with councillors. We are told that the proposal is that the contractor will be making the recommendation, but it is unlikely that the planner from the planning authority, who has a relationship with the councillors that probably goes back many years, may not wish to influence events. Whether it is done formally or informally, the planner in the residual planning department might come up with a very different conclusion or recommendation and indicate to the councillors exactly what he or she thinks. That is why I am a little worried about this reference cited by my noble friend on the Front Bench, who said:

“The regulations may make provision about … the investigation of complaints or concerns about designated persons”,

and

“the circumstances in which, and the extent to which, any advice provided by a designated person to a person making a planning application is binding … on the responsible planning authority”.

In other words, can the Secretary of State say, “I require you”—the local authority—“to dismiss any comments, recommendations or views of your own planning department and to accept the views being expressed by the independent contractor”.? I would worry about that because it would completely overturn the principle on which I understand planning operates within local authorities. As I understand it—but it is 40 years since I was on a council—it is normal for the Secretary of State to interfere only on appeal. That provision suggests to me that the Secretary of State can intervene in circumstances which would not be particularly helpful.

I go back to what I said at the beginning of my comments. I am concerned about what happens in the meeting and in the documents that flow between the contractor, the planning officials and the councillors, and about the conflict that might arise. I suggest that that is where the problem will arise and what will sink the whole project.

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[Baroness Evans of Bowes Park]

I thank all noble Lords for their contributions to an extremely interesting debate. Before I respond to the specific amendments, perhaps I can make some broad comments, although I will try to keep them brief.

We all want a planning system that is fit for the 21st century: one that can effectively support the delivery of homes that people need, and one that is efficient, responsive and resilient. To ensure this, there have been calls for greater flexibility in the way that fees are set, provided that any changes are linked directly to the quality of service.

We want to address resourcing concerns, but the answer is not simply to ask developers to pay for all local authority costs that go unchecked. The level of planning fees is one side of the resourcing equation. How planning applications are processed is just as important: continually transforming processes to drive down costs and deliver the most effective service possible.

Currently, local planning authorities have a monopoly on processing applications for planning permission which denies the user choice and does not incentivise service improvement and cost reduction. My noble friend Lord Deben made a strong case for why we need to look at this area. Local authorities can do more to transform their planning departments. Many have, as the noble Baroness, Lady Young, identified. Some have introduced new ways of operating through outsourced and shared service approaches and shown that performance can be improved and costs reduced—but more should be following their lead. We believe that it is incumbent on us to test new ways to improve the planning system. Therefore, we want to use the pilots to test the benefits of introducing competition to processing planning applications.

Clause 145 will give the Secretary of State the power, by regulations, to introduce pilot schemes for competition in the processing of applications for planning permission. Regulations will set out the legal framework and the detailed rules for how the pilot schemes will operate. Clauses 145 to 148 set out the scope of what can and cannot be included in the regulations.

Let me now try to be clear on a number of points. This is about competition for the processing of applications, not the determination of applications. I can assure noble Lords that the democratic determination of planning applications will remain with local planning authorities during the pilots, and that they will not be able to delegate this function to private sector providers. We do not intend to make a report or recommendation from a designated provider to a local planning authority about whether or not the authority should approve the planning application in any way binding, and the authority will be able to reject the recommendation and set out its reasons for doing so. Local authorities will continue to determine planning applications, as they currently do.

Reports from the authority’s officers to a planning committee are not currently binding on the committee. Similarly, reports from a designated provider making a recommendation about how an application should be determined will not be binding. Planning committees or officers taking decisions under delegated authority will be able to reject the recommendation—although, of course, they will need to set out the reason for doing so. The public will be able to comment on planning applications in pilot areas, just as they do now, irrespective of who is processing the application.

We are not forcing local authorities to privatise or outsource their processing service. In pilot areas, the authority will keep its service, but with other providers able to compete with it to process applications in the area. If the authority’s service is the best, why would applicants not still choose it? We are not about to let just anyone become a designated provider. We expect that regulations will require those selected to meet high professional standards and not process applications in which they have an interest.

[Lord Campbell-Savours]

What is to stop an applicant going to the contractor and saying, “Look, I won’t give the local authority the business, I’ll give you the business, but you’ve got to recommend yes on my application”? What is to stop that happening?

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[Lord True]

The problem that my noble friend might reflect on is that paragraph 463 of the Explanatory Notes states that,

“it will be solely for them”—

that is, the designated person—

“to process the application and make a recommendation to the local planning authority on how, in their professional opinion, the application might be determined”.

In my world of reading planning reports every week, that is what is in the planning recommendation: there is a point of recommendation. That is the difficulty which I would like us to look at between now and Report: whether building on the excellent amendment moved by my noble friend Lord Borwick one could put in further defences. The other difficulty is in Clause 146(2)(g), where, as has been pointed out, circumstances are envisaged in which the designated person’s advice might be binding.

Finally and briefly, once the thing goes before a committee with a recommendation, the planning committee, if it does not agree, has to overturn that advice, which needs to be dispassionate. The suspicion is that it might not be dispassionate in certain circumstances. When the inspector looks at that, he is looking at a planning committee which has overturned professional advice. The dice are therefore rather loaded when this goes to the inspector. I am not opposed to this in principle, but the point about the element of decision needs to be considered further between now and Report.

[Lord Campbell-Savours]

The Minister did not exactly reply to my question before. The applicant could go to the contractor and say, “You get the business if you recommend yes”. What is to stop that happening?

[Baroness Evans of Bowes Park]

I will respond to my noble friend first. It would be inappropriate to tell the planning inspector what weight they must place on the paperwork provided by the appellant and by the local planning authority making the decision. It is right that the inspector judges each piece of paperwork on its merits. But we will reflect further on the issues that he has raised.

In answer to the noble Lord, Lord Campbell-Savours, we will use regulations to prevent conflicts of interests and maintain ethical and professional standards. Local planning authorities will retain responsibility for deciding the planning application, having received a report with a recommendation from the provider to whom the planning applicant chose to submit their application for processing. We will set out regulations, actions and procedures that approved providers will have to follow to ensure unbiased reports.

[Lord Campbell-Savours]

I am sorry, the Minister has not answered my question. I would like to see it answered before Report in writing.

[Baroness Evans of Bowes Park]

I will take that back and write to the noble Lord. I will respond on one other general point before moving on to the amendments. My noble friend Lord True asked about the moral hazard involved in selecting who processes planning applications. We are not selecting who processes a particular application: it is the applicant who chooses. There will be an approved list of providers that the applicant can go to, but they will choose their provider.

We welcome the scrutiny that the Delegated Powers and Regulatory Reform Committee has brought to these clauses, which was mentioned by the noble Lord, Lord Foster. A response will be published by the end of today, but as noble Lords know, we are not quite sure when that will be.

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[Lord Harris of Haringey (Lab)]

My Lords, I am grateful to the noble Lord, Lord Greaves, for putting this unexpected discussion before the Committee. I am conscious that there are 11 more groups, which, in the course of a normal Thursday, would need to be discussed in the next hour and seven minutes. Perhaps I can abuse the fact that I am now standing up to say that it would be very helpful if we could have a statement from the Government Chief Whip in, say, 15 minutes, explaining his intentions for the remainder of Committee. It is clearly unreasonable—to the Minister and the shadow Ministers—to be continuing in this way, making such slow albeit quite proper progress, because these are important issues. It would be extremely helpful if we had a statement from the Government Chief Whip about the Government’s intentions for dealing with the Bill because, frankly, this is not a sensible way for legislation to be properly scrutinised by your Lordships’ House.

[Lord Campbell-Savours]

My Lords, why can we not simply convert the first day of Report into a Committee day and have a proper debate on the day we come back?

[Baroness Williams of Trafford]

My Lords, I hate to intervene because the hour is getting late. These matters are generally decided through the usual channels. I guess that they are having discussions at the moment and, if the Chief Whip comes in, I am sure he will make a statement to the Committee. For now, can we get on with the Bill?

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[Baroness Williams of Trafford]

My Lords, perhaps I might speak as the Minister who is on the Bill. We have spent many weeks on it. The one thing that we do not do is the job of the usual channels. With respect to the noble Lord, I ask him to respect this convention and allow the Chief Whip to make a Statement at 7 pm. In the mean time, could we please get on with this Bill because we all want to go home?

[Lord Campbell-Savours]

My Lords, we now have nine groups which has normally been a day’s work. Are the Government expecting us to finish nine groups within the next hour or so? We need to know where we are going. Within the matter of the last few minutes we have already dropped one string of amendments to suit the House. The noble Lord, Lord Greaves, was prepared to concede one group to help expedite proceedings but we still have all these other groups left. We need a Statement before 7 pm.

[The Lord Privy Seal (Baroness Stowell of Beeston) (Con)]

My Lords, my noble friend has been very clear. Following discussions with the usual channels, my noble friend the Chief Whip will provide an update at 7 pm. Meanwhile, we have time before us where we can make progress and continue the very good work of this House. As to the noble Lord’s assessment of what progress can be made on groups in time, I remember being advised that, when his party were in government, it was quite regular for them to be making much speedier progress on groups than we have been doing lately. I would urge noble Lords to continue their very important work and see how far we can get, rather than spend any more time now talking about what may or may not happen once we get to 7 pm.

[Lord Campbell-Savours]

I am sorry to persist, but these are very important matters. Why does not the Leader of the House try again to get an earlier statement than one at 7 pm, because we want to know what is going to happen over the next hour?

[Baroness Stowell of Beeston]

I say to the noble Lord that the best thing for us to do now is just to continue with the work of the House. My noble friend the Chief Whip has been in the Chamber very recently; he is talking to his counterparts in the usual channels. What we can most usefully do in the Chamber is to do our very important work of scrutinising this legislation, debating it and making the great progress that has been made this week, to which the noble Lord has contributed, alongside many other noble Lords in this Chamber, all of whom want to continue with that work. I suggest to the noble Lord that that is what we do right now.

[Lord Campbell-Savours]

That might be the view of the Leader of the House, but it is not my view. The House is being unfairly treated. For those watching our proceedings from outside, we should explain that this Bill is being opposed by a large number of Members of this House on the basis that it is a skeleton Bill, which is being driven through Parliament without all the controversial areas being debated. That is why it is important that we have enough time to debate the nine or 10 remaining groups of amendments. What is happening now in this Chamber is that the Government are trying to find a way in which to secure the passage of the Bill this evening. That is what is going on. The public outside should know that it is a scandal.

[Lord True]

I absolve the noble Lord, Lord Campbell-Savours, because he has been present for most of the Bill, which is not true of all noble Lords who are seeking to intervene on this question. We normally do not finish until 7 pm on a Thursday. As a courtesy to all of us who have spent a long time here, can we proceed to do the business of this House, which is dealing with legislation, instead of faffing about procedure, delaying and trying to force the Bill timetable on? People who were here after midnight last night and people who have worked hard deserve the courtesy of being allowed to complete the job that we started. Let us hear the Chief Whip at 7 pm and get on with it. That is my view.

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[Lord Taylor of Holbeach (Con)]

My Lords, I have had discussions in the usual channels, and we are going to be able to make quite a considerable amount of headway very quickly indeed. If noble Lords will bear with me, I said I would make a statement at 7 pm or thereabouts. I am willing to do so, but I know that the next group of amendments to be debated will be brief. I am also assured that the subsequent group will not be moved. There are then two groups of government amendments. I have agreed with those who have tabled the last group of amendments—which we will not reach—that they can be brought back on Report and debated under Committee rules. That is a practical solution, and I hope that noble Lords will agree it is a sensible way forward.

[Lord Campbell-Savours]

Does bringing the amendments back on Report and debating them under Committee rules mean we will have the opportunity to debate those particular amendments on two separate occasions prior to Third Reading? Is that what it means or are we simply absorbing the amendments that are due to be moved into Report? That is not what I understand has been agreed.

[Lord Taylor of Holbeach]

I am sorry, but I do not think that the noble Lord understands exactly what I am saying. I would be grateful if we would allow business to continue. We do not normally close until 7 pm, and it is not 7 pm.

[Lord Taylor of Holbeach]

I will be very happy if we resolve all these amendments this evening, but it has been suggested that we will not do so because of the pressure on time. It is up to the House to decide how it deals with this matter, but I hope that noble Lords will take my advice. There is very little left to do on this Bill in Committee—please let us continue.

[Lord Campbell-Savours]

I am sorry, but it has now been explained that we will have only one opportunity prior to Third Reading to discuss these particular amendments under the proposal made by the Chief Whip.

[Lord Taylor of Holbeach]

No, that was my first option because I understood that noble Lords were very keen to go away and not debate the issue. I would be very happy if noble Lords wanted to debate this. The noble Lord, Lord Krebs, and the noble Baronesses, Lady Parminter and Lady Young, are here, and I am very happy that we should do that. The House has to sit until Royal Assent is given to two Bills that have arrived from the Commons, so there is no question about time—we will be here. It is a question of whether noble Lords wish to deal with the business that is before us.

[Lord Campbell-Savours]

We sat here until after midnight on Monday. The public outside should know that we sat here until after midnight on Monday and after midnight last night. The Chief Whip now proposes that we should sit here longer than we should sit here. It is all right dealing with this other business, but the fact is that there is not enough time to complete the Bill under normal Committee arrangements. The Government are ramming the Bill through. It is wrong and we object.

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[Lord Deben]

My Lords, I declare an interest as chairman of the Committee on Climate Change, and I rise to support these two amendments. They are both based upon advice given to the Government by the Committee on Climate Change. We are talking about a very serious issue. Tens of thousands of houses have been built on flood plains and in circumstances which are more vulnerable than Cockermouth. This is serious. If we go on like this, we will be creating problems which we will have to meet. We cannot avoid it. This is going to happen. Not to do in this Bill what we can do is to avoid an opportunity, to the detriment of very large numbers of people.

The Adaptation Sub-Committee of the Committee on Climate Change told the Government that there are a number of simple things that should be done that could help protect us in future. For example, water companies are not at the moment compulsory consultees to planning decisions, which means that they are in the very peculiar position of neither being able to comment under the statute on a planning decision, nor being able to refuse to connect the houses then built to an inadequate sewer. We have to put this right. When the committee suggested this to the Government, their official reply was that it would be inappropriate to do this. The word “inappropriate” may have been the right word before the floods in Cumbria, but to suggest that it is inappropriate to do this is stretching the English language beyond any possible appropriate use.

My noble friend may be unable to accept these two amendments at the moment, but it seems to me that it would be pretty impossible to explain to the public that we are prepared to continue with a position in which houses are being built without proper and adequate means of getting rid of the surplus water that they create, and without proper protection of the surplus water that is created outside. These amendments make sure that we have modern, sustainable drainage in a form which this House and the other House have already agreed, and which the Government support. Secondly, they ensure that developers have a duty to develop in a way that makes houses resilient to the normal circumstances of life.

I can think of no more moderate or reasonable amendments to put down, and I remind the Minister that they are based upon the advice of the body that spent a great deal of time researching independently what should be done. Therefore, if she is not able to accept them now, I hope she can give us some hope that between now and Report, the Government will take this opportunity to do two very simple things which will save maybe the lives—and certainly the property and the future—of a large number of people.

[Lord Campbell-Savours]

I support strongly Amendments 119 and 120, which are important. Before turning to them, I point out that today, we have truncated the last nine groups of amendments to suit the Government’s timetable agenda. Some of us had to concede that because we wanted to ensure that we had two opportunities to debate these amendments, in Committee and on Report; under the proposal made by the Patronage Secretary, that was not precisely the case.

For those Members of the House who have not been following our proceedings and have wondered what was happening this evening—and there will be those who have not—the central issue in this whole Bill has been the fact that it is a skeleton Bill. We have not been able to discuss all the controversial provisions because they are to be introduced later, after Royal Assent, in the form of statutory instruments which we cannot amend. That is the fundamental objection here. That is why all these arguments have taken place.

Amendment 120 would offer at least some security for prospective purchasers of housing. In the event of flooding, at least on the first occasion, the cost of dealing with a property that had been flooded would fall on the developer, not the insurer. Of course, the amendment does not deal with what subsequently happens, when the insurer would carry the liability; but under it, a developer would have to have in mind the potential cost to themselves of failing to design the property they were constructing to deal with the potential for flooding.

I hope this amendment will be enshrined in law, because it seems to me eminently sensible. It contains the phrase:

“the housing developer to be liable for the full cost of flood damage to a new dwelling if such damage occurs within ten years of the property being first sold”.

Of course, the developer can go bankrupt—and then where is the liability? Who then is responsible for paying the bill? In the event that this were enshrined in law, provision would surely have to be made for the developer to buy insurance to cover the possibility of flooding happening at some stage. I presume that the credit rating of the developer would influence the amount of premium payable on the insurance policy.

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[Baroness Williams of Trafford]

I will certainly do that. We would also welcome suggestions from the Adaptation Sub-Committee based on its ongoing evidence gathering, as that would obviously help to build up a fuller picture.

[Lord Campbell-Savours]

I am not being unreasonable in asking this but have Ministers fully considered the effect that the cuts in local authorities’ budgets are having on their ability to clear culverts? As they cut back on that clearing programme, they aggravate the problem. Particularly in terms of starter homes, we are now dealing with the more vulnerable buyers—the people who are buying discounted properties and cannot afford to take that risk. I wonder whether Ministers have thought through the consequences of local authorities being starved of cash.

[Baroness Williams of Trafford]

My Lords, it depends where the culverts are. Clearly some are on private land and some are on public land. Local authorities will expect private developers to clear areas, particularly when assessing flood risk. So, depending on the circumstances, there are various obligations on various stakeholders to undertake some of these matters. However, the noble Lord raises an important point.

Amendment 120 covers any development located anywhere—even in areas where, for example, flood risk had not been identified. The housebuilder would be liable even where floods could not be foreseen. The amendment does not differentiate between causes of floods, so if flood defences were overwhelmed, the housebuilder would be liable. It requires the full costs to be covered, even for those for which the householder’s domestic insurance would provide cover, which I am afraid is a fertile area for dispute between developer, insurer and the housebuilder. It would also cause potential confusion with existing warranty schemes for new homes. However, I take the noble Baroness’s point that development should not add to flood risk and I would like to describe the Government’s approach to that important matter.

Flood risk is an important consideration in the planning system and there are already strong policy safeguards in place. The national planning policy is designed to ensure that if there are better sites in terms of avoiding flood risk or if a proposed development cannot be made safe from flooding, it should not be permitted. Local planning authorities are expected to steer new development to areas at least risk of flooding wherever possible. They should apply this approach through their local plan and in planning decisions take advice from people such as the Environment Agency and other flood risk management authorities, which might include the water authorities.

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[Baroness Williams of Trafford]

I completely take the noble Baroness’s point, but I reiterate our point that local planning authorities are expected to steer new development to areas at least risk of flooding. That is not to say that we will not have one-off events. Nowhere is safe from that sort of one-off event.

[Lord Campbell-Savours]

The noble Lord, Lord Porter, sitting immediately behind the Minister, brought us into the world of reality. He told us that they will carry on building. That is what he said. So how does the Minister deal with that?

[Baroness Williams of Trafford]

If I have interpreted my noble friend’s words correctly, he tells us that he lives in an area that is quite low lying. We are sitting in an area that is in a flood plain, so it is not at all unusual for areas of high flood risk to be built upon, albeit that London has been built upon for the past 200 or 300 years. Going back to my original statement, the review by Oliver Letwin going forward and the total way in which we approach water management must take on a new meaning. That is not to take away from the noble Lord’s point. I think that my noble friend was making an entirely different point, which is that in some places we build on flood plains.

Where development is necessary in a flood risk area, it must be made safe, without increasing flood risk elsewhere, and be appropriately flood resilient and resistant. We have recently seen examples of where building in one place has increased flood risk elsewhere. Where appropriate, developers need to identify through a site-specific flood risk assessment all the flood risks to and from the development. This should accompany the planning application to the satisfaction of the local planning authority. Our planning guidance, which supports the NPPF, is very clear that all local planning authorities are expected to follow the strict tests set in the framework to protect people and property from flooding.

[Baroness Williams of Trafford]

My Lords, my noble friend brings up a really important point, but some of these things will be discussed in the round as we consider how we manage flooding in future. I am sorry—I have lost my train of thought. I wonder whether it is the lateness of the hour. The work of my noble friend’s committee will be invaluable to that thinking.

I come back to the issue of flood resilient construction. Currently, building regulations do not require building work to incorporate any flood-resilience or flood-resistance measures. This is because local authorities can already ensure through plans that measures to address flood risk are incorporated into new development where appropriate. Nevertheless, approved document C of the statutory guidance which supports the buildings regulations promotes the use of flood-resilient and resistant construction.

We recognise the importance of the issue and have asked the Building Regulations Advisory Committee, the statutory committee which advises Ministers on building regulations matters, for its advice on this. I know that the committee has been considering the issues, and we expect to receive its advice shortly.

[Lord Campbell-Savours]

The noble Baroness said “shortly”. Is there any chance of it before Report?

[Baroness Williams of Trafford]

I do not think I can give that assurance, but I shall certainly try to put a timescale on it before Report, if that suits the noble Lord.

I hope that the noble Baroness will feel able to withdraw her amendment, but I also hope that the Committee will indulge me; I know everyone is anxious to get away. We have spoken about how planning applications for housing can often take an extraordinary time to complete. After some very long nights in this Chamber, I believe people are beginning to say the same thing about planning Bills. I pay tribute to everyone who has spoken in debates today and through the whole course of the Bill so far. The expertise which noble Lords have displayed has greatly enhanced consideration of the Bill, as well as my thinking about how we can improve its implementation.

I know that many noble Lords will not believe me when I say this, but I look forward to continuing the debate on Report. Although we will continue to disagree on some issues, we will, I hope, move closer to agreement on others. Over the Recess, therefore, I shall be tabling a number of government amendments which will take into account some of the points that noble Lords have raised. Given the hour, I will write to noble Lords with further details shortly—and I mean shortly.

I am sorry that the noble Lord, Lord Foster, is not here—oh no, there he is in the corner. I have also written to the DPRRC, responding to its 20th and 21st reports and have placed a copy of that letter in the Printed Paper Office, as noble Lords requested. I am happy to be making a number of positive changes. I will not detail every point here now, because I fear that noble Lords have heard enough from me, but I hope that my response will be helpful.

One final Easter present to you, my Lords, before we rise: within the past couple of hours, we have launched our consultation on starter homes. During Committee, noble Lords from across the House raised a number of questions about the implementation of the starter homes programme. I heard their concerns, and in response we have decided to consult on a number of proposals. We will spend the next eight weeks actively engaging with the housing industry and local government, and I am happy to ask my officials to brief any noble Lord who wants to know more. I have written to noble Lords with further detail and, again, asked my officials to place the consultation in the Printed Paper Office and the House of Lords Library.

That is it for now. I thank your Lordships again for the depth in which we have scrutinised the Bill and wish you a very happy Easter.