Localism Bill

Lord McKenzie of Luton Excerpts

Thursday 14th July 2011 Lords Chamber

[Lord Greaves]

My Lords, I remind the House of the interest that I declared at the beginning of the Committee stage. I am vice-president of the Open Spaces Society, which is the expert voluntary organisation on village and town greens and spends a lot of its time advising people who wish to register greens. It strongly advises people not to do so purely to resist development and not to proceed if the evidence appears to be poor. Not everyone takes that advice, unfortunately.

The amendments attempt to tackle this perceived problem—it is indeed a problem in some areas—by amending this legislation and thereby amending the Commons Act 2006. I suggest that this is probably the wrong time and the wrong legislation to do that. Town and village green legislation, as noble Lords who took part in the discussions of the Commons Act in 2006 will know, is extremely complex and somewhat difficult. Section 15 of that Act laid down a new system for the registration of greens, but that was based upon much older commons legislation, going back to the past, describing what is and is not a green.

I have some questions. Is there an identified problem? Yes. Is it hugely widespread? No, but it is serious where people are abusing the system. Some instances of that have been identified here today and I could provide some more. Does it need sorting out? Yes. Does it need new primary legislation and is this the right Bill to do it? No. As the noble Baroness, Lady Byford, has identified, what is required is an overhaul of the Commons Registration (England) Regulations 2008, which result in a system of greens registration that, in my view and that of the Open Spaces Society, is overly bureaucratic, takes far too long and can be far too costly.

I was involved on the other side, as it were, in an application for a green in Lancashire where Lancashire County Council wanted to build a new secondary school, which I was in support of, and a group of people tried to suggest that the land on which it was being built was a green. I met them, advised them and told them that it was not, but fortunately Lancashire County Council, perhaps because it was a project of its own that was potentially being blocked, was very expeditious in sorting it out. Quite correctly, it rejected the application.

We have a 10-point programme that would greatly improve the green registration system. It could be done simply by secondary legislation by amending the 2008 regulations. I am not suggesting that that is the whole answer and I am not going to tell your Lordships today what all the 10 points are, but we are happy to discuss this with Ministers. They will be Defra Ministers, though, as this is not a CLG matter. Defra is already looking into the problem; it has commissioned research, it is having discussions and it is considering its responses. I hope that on that basis we can let the department get on with it.

There is an understanding on all sides that this is urgent. It is important not to throw the baby out with the bathwater and not destroy the system of registration of town and village greens, which is a very useful process, but to stop people abusing it.

[Lord McKenzie of Luton]

My Lords, we should thank the noble Baroness, Lady Byford, and the noble Lords, Lord Best and Lord Lucas, for identifying and raising this issue this evening. Clearly, as the noble Lord, Lord Greaves, said, we must cherish and support the legislation which enables the identification, reclamation and maintenance of town and village greens. However, there is clearly a problem here. As the noble Lord, Lord Greaves, asks: is there a problem? Yes. Does it need sorting out? Yes, it does.

I am not sure that we necessarily have the way forward encapsulated within the amendments before us. The noble Lord, Lord Greaves, has made some interesting suggestions and I will be interested in the Minister’s response. The noble Lord, Lord Lucas, offers the prospect of being able to identify and establish a town or village green only through a neighbourhood plan. That seems potentially too restrictive: if you do not have a neighbourhood plan in place, what happens? They will not necessarily be universal.

I side with those who say that a misuse of this legislation is taking place. I accept that it may not be widespread, but it does need sorting out. I look to the Minister to see what solutions he offers.

[Earl Attlee]

My Lords, I welcome the opportunity to respond to these amendments and the balanced way in which the arguments have been presented to the Committee. Of course, I speak for Her Majesty’s Government and not one particular department.

I know that the system for registering new town or village greens is a matter of rising significance to those of us interested in development sites, as well as to local authorities in their role as commons registration authorities. As I shall explain, it is also a matter of considerable interest to this Government.

We recognise the value of the town or village green registration system in safeguarding traditional open spaces in local communities. Government surveys show an increasing trend in applications during the past decade, although not all of these applications are granted. The noble Lord, Lord Greaves, suggested that problems were not widespread, although he agreed that they could be serious. Around 200 applications are made every year to register land in England as greens. The volume of applications, the character of application sites, the controversy which such applications often attract, the cost of the determination process on parties affected and the impact of a successful registration on the landowner are all matters of serious and increasing concern. We are well aware of the difficulties that some registration applications can cause where an application is made in response to advance plans for the development of a site. However, we also appreciate the importance that local communities can place on an open space as well as new development. We understand that there must be confidence that the relevant decision-making processes are working coherently in the interests of the community as a whole and not just in those of a minority.

The natural environment White Paper announced that we will consult on proposals for a new green areas designation that will give local people an opportunity to protect green spaces which have significant importance to their local communities. We are considering what changes to the greens registration system are required in connection with the new designation as a response to the Penfold review, which recommended changes to the registration system to ease non-planning impediments to development.

Amendment 148ZZBB in the name of my noble friend Lady Byford would give the Government powers to achieve a sharper focus in the criteria for registering greens. I have some sympathy with the purpose of the amendment, which could help to address some of the cases where applications have been used as a last resort only to delay development, such as my noble friend has described to us. The noble Lord, Lord Best, asked a question about rural housing. We share the concerns of my noble friend Lady Byford and the noble Lord, Lord Lucas, that the green registration applications can have an unfortunate deterrent effect on the provision of land for rural affordable housing. We are actively looking at whether amendments to the registration criteria are needed. We shall want to hold discussions with those with an interest in our proposals before concluding on the nature of any legislative changes. Legislative changes may be necessary. My noble friend Lord Greaves is right: the registration of a green is indeed a matter of fact. The criteria against which registrations are considered are set in law. There is no discretion. Local communities have no say in whether registering land as a green is desirable or not.

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[Lord Greaves]

There is a great deal of sense in that. Some of the difficulty is the muddle between Section 106 agreements and the community infrastructure levy, but it is the clear intention—it was the clear intention of the previous Government and I assume that that has not changed—to phase out Section 106 and replace it with CIL. The difficulty with that is that it brings levies and what they might be used for down to a quite small-scale local level. Large infrastructure projects are one thing, and I agree with many of the comments made by the noble Lord, Lord Berkeley, about that, but there are big projects, small projects and projects in-between. The amount of CIL that would be levied on many local development projects is quite small. Unless it can be seen as a replacement for Section 106 for the kind of things that Section 106 is spent on, and perhaps some further flexibility, a great deal will be lost. It is difficult to find ways of spending those relatively small amounts of money on things that might be classified as infrastructure.

One large-scale thing that Section 106 has been important in subsidising and helping to develop is affordable housing. We have had a debate about that and the Government have said that they are looking seriously at allowing CIL to be used for affordable housing. Affordable housing is not really infrastructure, apart from for the people living in a particular house. It is development that needs infrastructure around it. Classic cases of Section 106 funding include subsidising local bus services, whether it is a service to a new supermarket or a new estate. It is not infrastructure. Lots of local amenity areas, playgrounds, and so on, have been paid for out of Section 106. Are they infrastructure? A common-sense use of the word would suggest that they are not. Unless the levies can be used from local developments on this kind of thing, local authorities will find it much more difficult to provide them. Often new housing is developed by converting a mill into flats and then improving some of the areas around, which are pretty run down, by turning them into nice amenity areas and playgrounds, which is very important and linked to the development.

We have a new supermarket, which released £390,000 under Section 106 to spend on the local town centre. A lot of the spending on that town centre could not be described as infrastructure. It is about improving the appearance, relaying flags and grassed areas, improving shop fronts, and so on, which is all very important in helping the town centre compete with the new supermarket and hold its own, but is it infrastructure? My right honourable friend Simon Hughes suggested that double glazing might be an appropriate use of CIL from local projects. That is not infrastructure, but it is the kind of area in which we hope for some flexibility. I am not sure that we are that far apart. Clearly if a project is big enough to pay for a bypass, that is certainly infrastructure. However, we need flexibility.

[Lord McKenzie of Luton]

My Lords, as I indicated to the noble Lord, Lord Jenkin, we support the thrust of these amendments. Certainly I agree that CIL must not be used to fill revenue holes in the budgets of local authorities. A specific assurance on that from the Minister would be entirely appropriate.

When we debated this last week, our concern was about the interaction of CIL, Section 106 and affordable housing. As the noble Lord, Lord Greaves, said, the Minister indicated possible flexibility in future after consultation. We welcome that. We also agree with the noble Lord, Lord Jenkin, that if part of CIL is to be paid to a neighbourhood forum, for example, it must be linked to infrastructure. We would prefer the decision to be made by the local authority rather than dictated according to an arrangement of the Secretary of State.

The definition of infrastructure for these purposes in paragraph 12 of the CLG book, Community Infrastructure Levy: an Overview, published in May this year, states, surprisingly:

“The Planning Act 2008 provides a wide definition of the infrastructure which can be funded by the levy, including transport, flood defences, schools, hospitals, and other health and social care facilities. This definition allows the levy to be used to fund a very broad range of facilities such as play areas, parks and green spaces, cultural and sports facilities, district heating schemes and police stations and other community safety facilities. This gives local communities flexibility to choose what infrastructure they need to deliver their development plan”.

There is already quite wide discretion in the rules.

I particularly support the point about potential double charging when a development has already entered into Section 106 obligations, some of which may be very long-term. Like my noble friend Lord Berkeley, we had discussions with Gatwick. However, this is not just an airport or a Gatwick issue.

I am not sure how best to resolve this issue. Part of the solution may relate to how and at what point CIL is charged. I understand that what triggers it is the commencement of development that has been the subject of some form of planning permission. Therefore, in a situation in which Section 106 obligations are already in place from prior development, I do not see how under the rules that could trigger a new CIL charge. However, any new development might, so Section 106 and CIL could still be paid at the same time. The potential for double charging is an issue, and I look forward to the Minister's response on that. However, the thrust of this is exactly right and we support it.

[Earl Attlee]

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

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

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