Non-Domestic Rating (Public Lavatories) Bill

Lord Greaves Excerpts

Report stage & Lords Hansard
Wednesday 17th March 2021 Lords Chamber

Moved by

[Lord Greaves]

1: Clause 1, page 1, line 6, leave out “consists wholly or mainly of” and insert “is used wholly or mainly as”

[Lord Greaves (LD)]

My Lords, I shall speak also to Amendment 2, which is in the same group. This follows what I thought was an interesting and useful discussion in Committee on the meaning of the words “wholly or mainly” when it came to defining whether a hereditament qualified for the zero rating under business rates as a public lavatory. In Committee I probed whether “mainly” was about the area it covered, perhaps the floor area, the value or the use. The Minister made it very clear that it was about the use; I have been reading what he said in Committee and that is very clear indeed. I will come back to that because Amendment 1 is the more important of these two amendments.

Amendment 2 is about the percentage use of the hereditament that qualifies for non-payment of any business rates. In Committee the Minister made it clear that the words “wholly or mainly” were put in because, he said, they are commonly used words in this kind of legislation, particularly in relation to charities. He referred to case law and to local authorities having some flexibility in whether they decide it is a public hereditament. He said:

“The use of ‘mainly’ means that an authority may, for example, look at the floor area of a building and see that less than 50% is being used directly as a public lavatory, but it may still feel that it meets the criteria … because the remaining area is used as storage or for other matters of little consequence.”—[Official Report, 24/2/21; col. 852.]


The useful discussion that we had there again put the emphasis upon the use of the hereditament. The Minister went on to refer to the Local Government Finance Act 1988 and its reference to charities.

The interesting thing is that it is not entirely clear that 50% is absolutely clear and written into the legislation. The Minister kept saying that he did not want greater burdens to be put on local authorities and did not want them to spend more time on this, yet there seems to be some disagreement, in the context of business rates relating to use for charitable purposes, about whether the proportion of the use that is taking place has to be 50% or more. The Charity Tax Group says in its briefing:

“In order to benefit from the mandatory exemption from business rates it is important to understand the meaning of ‘wholly or mainly used for charitable purposes’. Case law suggests that ‘mainly’ probably means ‘more than half’; but there is a certain amount of ambiguity about this and the interpretation may vary from local authority to local authority”


which is unsatisfactory.

“It is sometimes argued that ‘mainly’ in fact means more than 75 per cent. Charities may have to try to negotiate this with their local authority.”


I am no expert on this area and I do not know how much of that goes on, but it seems sensible that if “mainly” means 50% or more that ought to be written into the Bill.

Amendment 1 would put into the legislation the exact words in the charitable legislation and the exact words that the Minister said in Committee referred to this legislation. I looked it up. Section 45A(2)(b) of the Local Government Finance Act 1988 reads, for charitable relief,

“it appears that when next in use the hereditament will be wholly or mainly used for charitable purposes.”

There is then another paragraph that refers to community amateur sports clubs that has the same wording.

I am therefore trying, in an attempt to be really helpful to the Government, which I always attempt to do in legislation because if we get good legislation it is clear what it means and it is workable, to put into the Bill the wording in the Local Government Finance Act, which in Committee the Minister said applied to this Bill, which is to say that it is not, as this Bill states at the moment

“consists wholly or mainly of”,

but

“is used wholly or mainly”

for public lavatory purposes.

This is a very sensible little amendment. The Government ought to say, “Yes, of course. It’s sensible. Let’s put it in.” I beg to move.

[Baroness Pinnock (LD) [V]]

My Lords, I draw the House’s attention to my interests in the register as a member of Kirklees Council and as a vice-president of the Local Government Association. I must say that I enjoyed the forensic probing that my noble friend Lord Greaves has undertaken. The words in the Bill that he is keen to clarify are ones that legislators frequently use. One wonders whether this is for the precise purpose of storing up business for lawyers when a challenge is made and the words then have to be to defined. My noble friend has done his research and quoted case law. The Minister’s response will be of interest to many of us because it will relate not only to this Bill but to others where charitable institutions are involved.

My noble friend also drew our attention to the difference in the use of “consists” and “used”. As he rightly pointed out, a “well used” facility may not get relief, whereas one that consists “wholly or mainly” may well do. Perhaps the Minister will be able to explain the reasoning behind the use of the words in the Bill that my noble friend is questioning. I look forward to what I am sure will be a most informative response.

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[Lord Greenhalgh (Con)]

My Lords, I draw attention to my residential and commercial property interests as set out in the register. I thank the noble Lord, Lord Greaves, for these two amendments which would change the way a public toilet is defined for the purposes of qualifying for the relief within this Bill.

As currently drafted, the 100% business rates relief will be available to any eligible hereditament which consists wholly or mainly of public lavatories. The first amendment of the noble Lord, Lord Greaves, would amend this so that eligibility is determined on the use of the hereditament.

The Government aim to make this relief as simple as possible to administer for local councils. When determining whether to award the relief, local authorities should be able to apply a degree of common sense and ask the essential question: “Does it look like a public lavatory”? Therefore, the Government favour an approach based on the physical characteristics of a hereditament, and “consists” achieves this better than “used” does.

While I appreciate the intention of the noble Lord in bringing forward this amendment, I hope that the House will agree that the extent to which a hereditament consists of public lavatories is less likely to be subject to change than the extent to which it is used as a public lavatory. As such, the approach chosen by the Government will result in fewer reassessments of awards of the relief being required.

Furthermore, the Government do not consider that the adoption of either option would result in a material difference to ratepayers. A hereditament consisting of a public toilet is unlikely to be used for any purpose other than that for which it has been designed. This contrasts with the business rates relief available to charities, which hinges on the use of the hereditament. The wording of the charity rate relief reflects that, for example, a hereditament consisting of a shop may be used for either charitable or non-charitable purposes. I do not consider there to be an equivalent issue in the case of public toilets.

I would like to reassure the noble Lord that it is not the Government’s intention for this relief to be available to toilets which are permanently closed and out of use. That is why the Bill amends only Section 43 of the Local Government Finance Act 1988—the section relating to occupied hereditaments. As such, the relief will not apply to unoccupied public lavatories.

The second amendment would define the meaning of the word “mainly” for the purposes of awarding the relief in the Bill as meaning “at least 50%”. As I have set out, it is councils and not central government which are responsible for determining eligibility for business rates relief and it is right that there is some element of discretion in this process. The use of the word “mainly”, which is used elsewhere in rates legislation where it remains undefined, achieves this.

It is right that local authorities have the ability to take a common-sense approach in marginal cases and to reflect on their own local knowledge, as well as any relevant case law and guidance, when making their decisions. I thank the noble Lord, Lord Greaves, for his proposals. However, on the basis of the points made I hope he will agree to withdraw the amendment.

[Lord Greaves (LD)]

My Lords, I am grateful to the Minister for devoting some brainpower to this, actually thinking about it and coming up with sensible arguments. On balance, I do not agree with him. It seems that common sense would be to make it as simple as possible —his words—for local authorities, using exactly the same wording they are used to for other things.

I am particularly grateful for his use of the term “common sense”. He may find himself quoted from Hansard in future, when local authorities, as they sometimes do, make completely stupid decisions. It is now written down; it is laid down that common sense has to be used. I should declare my interest as a member of Pendle Borough Council.

I have tried to bring this into line—it will not destroy the Bill. The Minister said that the physical characteristics of public lavatories are very clear and do not change—but their uses do change. We once had a planning application for turning a public lavatory into an ice cream parlour, but I do not think that that succeeded. I think that, had they tried to sell ice cream from it, people would not have thought that it was still a public lavatory, but it is still very true.

I am grateful for what the Minister said; I am sorry that he will not accept my amendments, but I will not push them to a vote—they are not of that degree of importance. I beg leave to withdraw Amendment 1.

Amendment 1 withdrawn.

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Moved by

[Lord Greaves]

4: After paragraph (2)(a) insert—
“(aa) the provision of public lavatories by town and parish councils,”

[Lord Greaves (LD)]

My Lords, I first pay tribute to my noble friend Lady Randerson for the campaigning which she does on this issue, together with colleagues and campaigning organisations. Not very long ago—perhaps 15 or 20 years ago—there was a view that public lavatories were on their way out. I hate to say this, but they were being flushed away, first because it was thought that they were not necessary and, secondly, because of cuts in local government spending which, as we know, have been particularly strong in the last 10 years. The organisations and groups that campaigned for them then were felt to be rather old-fashioned and out of date. That view has substantially changed now. People are coming to understand that they are so important if we want people to spend time on British beaches, at holiday resorts, using car parks in the hills, and going to town centres, particularly ones which do not have large, emporium-type shops whose lavatories you can use.

But who provides them? I do not know what proportion of public lavatories in this country are provided by town and parish councils, but I suspect that it is a lot higher than the proportion of the population of the country that is covered by them. They tend to cover wider, rural areas that tourists go to, main roads and so on. As my noble friend said, it is getting increasingly difficult to find public lavatories in big cities. They are being closed down. In cities, you can usually find somewhere to go in a pub, a restaurant or a large shop. That is not so in the countryside. It is very difficult to find a parish council, of any size, or a town council that does not own and run at least one public lavatory. Many of them have more than that. They are vital.

I will now get on to something which is a hobby-horse of mine at the moment. I spoke on it in the debate on the Budget last week and I will speak on it on every available occasion that comes up. These democratically elected local bodies called town councils are becoming increasingly important in towns—small and medium-sized ones particularly, but some large ones—which have lost their own local authority councils and which are increasingly losing them as the country moves towards unitary authorities. In place after place, it is these councils, the representatives of the local community, which are providing public lavatories.

In most cases, that is because they are heritage lavatories, in the sense that they were bequeathed to them by a previous town council or, in many cases, the district councils and unitary councils in the boroughs, which previously ran the facilities, where they have a town or parish council, are passing them over to them and saying, “Here it is—we’ll give it to you. It’s not exactly an asset, but nevertheless we will give it to you. It’ll cost you money to run, and it is your responsibility to decide whether you want to keep this going in your area, because we cannot afford it anymore.” That is happening in more and more places.

The problem is that, when a town or parish council decides that it wants a new public lavatory, how is it going to finance it? Very often, town councils are now charging levels of council tax which only a few years ago would have been thought extraordinarily high and impossible, because they are taking on more and more facilities such as parks, leisure centres, community centres and all sorts of things and having to pay for them. The boroughs, districts and unitary authorities are not doing them anymore and cannot afford them, whereas the town councils can put the council tax up and, if local people agree to it, they can keep those facilities going.

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[Lord Greenhalgh (Con)]

My Lords, I thank the noble Baronesses, Lady Pinnock, Lady Randerson, Lady Thomas and Lady Greengross, and the noble Lord, Lord Greaves, for their amendments, which would require the Government to publish a review of the impact of this Bill on the provision of public toilets.

Every year, the Valuation Office Agency publishes a snapshot of the number of separately assessed toilets as of 31 March. In response to the noble Baroness, Lady Greengross, my brief research indicates that there were 6,087 public toilets in 2000, and that number had reduced dramatically to 4,627 by 2014 and to 4,383 by 2016. I do not have the exact figure for 2010 but it is clear that we have seen a dramatic reduction over many decades. As I mentioned in Committee, the current figure stands at 3,990 such facilities in England and Wales. This annual data release also breaks the aggregate total down to a local authority level, thus giving an overview of the distribution of these facilities across the country. The VOA will continue to make this data publicly available each year. Any future trends in the total provision of separately assessed public toilets, as well as their distribution across the country, will therefore be apparent.

Of course, the Government do not want to see further reductions in this figure. However, it is important to recognise that the ability for any public toilet to remain open is based on a number of issues. This does not diminish the importance of this Bill, but it does mean that hanging any trends in the provision of toilets solely on this business rates relief would not be the right thing to do. Operators of public toilets—in many cases, local councils—make decisions on the provision of public toilets in their area having reflected on relevant building regulations and their equality duty, as well as financial considerations.

In the first instance, the provision of toilets reflects the relevant building regulations. For example, under current building regulations, all new non-domestic buildings are expected to include a unisex, wheelchair-accessible toilet. Furthermore, I appreciate that Amendment 3 refers specifically to Changing Places toilets. I am pleased to be able to say that a major change in building rules in England made at the start of this year means that it is now compulsory to include a Changing Places facility in certain new public buildings. This is estimated to add these crucial facilities to more than 150 new buildings each year.

The House may also be interested to hear that the Government are currently undertaking a review of Part M of the statutory building regulations, which covers the access to and use of public toilets. This review will cover issues of mobility, demography and wider inclusion, and it will look at the size and layouts of toilets alongside the range of facilities needed to meet the requirements of people with different needs. This review will therefore look at the need to make any changes to building regulations in the context of the need for a fair provision of accessible toilets—including Changing Places facilities—and baby-changing facilities.

Clearly, a one-size-fits-all approach to toilet provision would not be appropriate, and it is important that any support given to the total provision of public toilets is not blind to the need to ensure that the needs of all are met by this provision. That is why my department is undertaking a technical review of toilets which will consider the ratio of female toilets required versus the number for men, as well as the need for a fair provision of accessible and gender-neutral toilets. We have received over 17,000 responses to this review as part of the call for evidence, which ran from 31 October 2020 to 26 February this year. The Government are now considering these representations and will respond in due course.

As well as the important measure in the Bill, the Government are providing significant grant funding to directly support the provision of public toilets. In response to the question from the noble Baroness, Lady Thomas of Winchester, I am happy to give some more detail on the £30 million fund put in place by the Government to support the provision of Changing Places toilets. I am happy to say that the Minister for Regional Growth, Minister Hall, has now announced that this funding will be provided to councils on an opt-in basis so that they can install facilities in their local areas and boost the number of Changing Places toilets in existing buildings. District and unitary authorities in England will be invited to complete a short expression of interest and will soon receive full details of how they can access this funding.

I can also confirm that the Government are partnering with the charity Muscular Dystrophy UK—as mentioned by the noble Baroness, Lady Thomas—to develop guidance to support the allocation of this funding. Muscular Dystrophy UK is an expert in this field and co-chairs the Changing Places consortium. I am sure that the House will agree that this partnership is a positive and important element of a significant multiyear programme to accelerate the provision of these vital facilities.

Finally, I would like to take the opportunity to thank those from across the House who took time to meet me and representatives from the British Toilet Association earlier this week. It was a valuable and constructive meeting and there was broad agreement on the importance of this measure in supporting toilet provision. While I do not think that an assessment of toilet provision in the context of the business rates system would be appropriate, I would be happy to meet again with any Peers who have an interest, as well as with the British Toilet Association, the National Association of Local Councils and the Local Government Association. I hope that this will provide us with an opportunity to further explore what is clearly an important issue, not just to those in this House but to many people across the country, and to build that ambition around the future provision of public toilets that has been called for by so many in this House.

I thank the noble Baronesses, Lady Pinnock, Lady Randerson, Lady Thomas and Lady Greengross, and the noble Lord, Lord Greaves, for their amendments, which recognise the importance not just of the total provision of public toilets but of having appropriate facilities which meet the needs of all. However, on the basis of the points I have made to the House, I hope that the noble Baroness, Lady Randerson, will withdraw her amendment.

[Lord Greaves (LD)]

My Lords, along with others, no doubt, I thank the Minister for his great interest in this area. I should apologise for not being able to make the meeting on Monday. I intended to, but I was caught up in a site meeting on ward issues. They are pretty difficult to organise at the moment, so it took rather longer. I apologise for that, but I have had good reports.

The only point I want to make is to thank the Minister for underlining what I was trying, less effectively, to say about the opt-in provision for new Changing Places-type provision and the fact that it does not apply to town and parish councils. However, major public buildings in a small town—a big community centre, a town hall or a leisure facility—may well belong to and be operated by the town council, and often are. The larger town councils at least ought to be included in that, and I wonder whether the Minister could go back and have a look at that. On that basis, I beg leave to withdraw the amendment.

Amendment 4 (to Amendment 3) withdrawn.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the amendment seeks to add a new clause. Its purpose is to require a report to be laid before both Houses of Parliament on the number of public lavatories and changing place facilities within 12 months of the passing of the Act, and every 12 months after that.

The report has to address a number of important points and consider whether the Act has increased the closure of public lavatories and, importantly, changing place facilities. We need to have proper conversations with the relevant stakeholders. Like the noble Lord, Lord Greaves, I was sorry that I was unable to get to the meeting with the British Toilet Association because I was here, considering the Domestic Abuse Bill at the time. However, I welcome the offer from the noble Lord, Lord Greenhalgh, to talk further on these issues, along with stakeholders such as the British Toilet Association, which does invaluable work for us.

Proposed subsection (4) of the amendment refers to whether the relief should be extended. That is very important. How does one extend rate relief? If the legislation is working, if the number of toilets is increasing and they are not being lost, we may well need to extend that rate relief. I make the point about changing place facilities because they are important. As I mentioned previously, there is now a changing place facility in the Tower of London. It is good enough for one of our historic royal palaces, so we should ensure that many other public buildings provide such a facility.

In the previous debate, I was reminded by my noble friend Lady Andrews of the importance of public health. I love the London Borough of Southwark—Southwark is in my title. The old town hall has a sign saying:

“The health of the people is the highest law”.


It was put there in Victorian times by the old St Mary Newington Vestry Hall. It is absolutely right. Think about what was being done in those times in terms of public health, sanitation and all the important things that had to be addressed. That motto is relevant today in terms of moving forward and ensuring that we address public health by having enough proper toilets available.

If the amendment is agreed, the Government will be asked to bring reports back to this House every 12 months. I suppose that the Minister is not going to accept the amendment. I may be wrong, but I hope that he can respond positively and genuinely because the Government need to arm themselves with that sort of information in order to get this matter right and ensure that the situation is improved for all our citizens.

[Lord Greaves (LD)]

My Lords, I support the amendment. I do not need to say any more about it. It concerns a slightly different aspect of what we have been talking about. Apart from that, I have made the points that I wanted to make. All that I will say is that I will keep on making them until the Government wake up and understand the role of town and parish councils. Having said that, I will sit down.

[The Deputy Speaker (Lord Alderdice) (LD)]

The noble Baroness, Lady Jones of Moulsecoomb, has withdrawn, so I call the noble Baroness, Lady Andrews.