Infrastructure Bill [HL]

Lord McKenzie of Luton Excerpts

Wednesday 18th June 2014 Lords Chamber

[Lord McKenzie of Luton (Lab)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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[Baroness Kramer]

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

[Lord McKenzie of Luton]

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

[Baroness Kramer]

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

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