Levelling-up and Regeneration Bill

Lord Young of Cookham Excerpts

Consideration of Commons amendments
Monday 23rd October 2023 Lords Chamber

[Lord Cromwell (CB)]

My Lords, I have one remark to make in support of Motion M1, put forward by the noble Lord, Lord Ravensdale. The noble Earl, with whom it is always so difficult to disagree, stated that the reason the Government are unhappy with the idea of climate change becoming more central is that it opens up a wide range of challenge. But climate change is going to be the central, existential issue of planning beyond our lifetimes. It is not an add-on; it is not planting a few trees in order to get planning permission. It is absolutely core, and dealing with that will make life very difficult for planning applications. I support this amendment so that climate change becomes central to the decision-making process, not an adjunct.

[Lord Young of Cookham (Con)]

My Lords, I will intervene briefly to speak to three Motions in this group—first, Motion ZH, to which the noble Lord, Lord Best, has just spoken. It is the substitute for an amendment on housing need that he promoted on Report. There is a crucial difference between the original amendment, which required local authorities not just to assess need but to make provision for it. The Government’s amendment deletes that last half—making provision for need. None the less, we have heard some encouraging words about social rent. It is a brave man who seeks to outbid the noble Lord, Lord Best, when it comes to speaking or voting on amendments on housing, so I am happy to follow his lead and not press that. I pay tribute to the work that he has been doing on this.

Secondly, it was disappointing to hear my noble friend Lord Howe say that Motion N1 on healthy homes, from the noble Lord, Lord Crisp, still had to be resisted. Ever since the Private Member’s Bill was introduced, we have had numerous debates in Committee and on Report, and each time, in response, the noble Lord has moved further and further towards the Government. There never was a wide disagreement, because the Government always said that they agreed with the thrust of what he was trying to do.

It is worth reading out what may be the only sentence of the original amendment that remains:

“The Secretary of State must promote a comprehensive regulatory framework for planning and the built environment designed to secure the physical, mental and social health and well-being of the people of England by ensuring the creation of healthy homes and neighbourhoods”.


That is apparently too much. It continues:

“The Secretary of State may by regulations make provision for a system of standards”.


In other words, how that objective is reached is left entirely to the Secretary of State. Far from cutting across, as my noble friend Lord Howe said, the amendment seeks to bring it all together under a comprehensive framework to promote healthy homes.

The last point I want to make is on Motion R1 of the noble Baroness, Lady Pinnock. It repeats an amendment that I originally proposed in Committee that gives local authorities powers to fix their own planning fees. In the other place, the amendment was resisted on these grounds:

“It will lead to inconsistency of fees between local planning authorities and does not provide any incentive to tackle inefficiencies”.—[Official Report, Commons, 17/10/23; col 186.]


Central government should be quite careful before it preaches to local government about inefficiencies. This is the month in which we abandoned most of HS2. Pick up any NAO report and you will find criticism of the MoD on procurement. There has been criticism of the new hospitals programme and of HMRC in its response to taxpayer inquiries. If I were running a planning department in a local authority, I would be slightly miffed if I were told that, if I had the resources I needed, it might lead to inefficiencies.

There are problems in planning departments, but they are because a quarter of planners left the public sector between 2013 and 2020, so of course they cannot turn around planning applications as speedily as they might. The argument about promoting inefficiency does not really hold water. If one were to take that argument, why stop at planning fees? What about taking books out of a public library, swimming or parking? Are these not areas where local authorities might conceivably be inefficient?

Almost the first sentence of the White Paper introducing the Bill said that it would promote a “revolution in local democracy”, but allowing planning departments to set fees, so that they can recoup the costs of planning, is apparently a step too far. Yes, you will have inconsistency of fees, but that will happen if you have local democracy. We already have inconsistency of fees in every other charge a local authority makes, including building control fees. The argument that it will somehow confuse individuals or developers does not hold water. How many individuals make planning applications to a range of different local authorities and then express surprise that the fees are different? Yes, developers will be confronted with different fees, but they want an efficient planning department that processes their applications quickly.

I cannot understand why the Government are digging in their heels on this amendment, which empowers local government and gives them resources. It does not get resources at the moment because, in a unitary authority, the planning department, which does not get enough money from planning fees, has to bid for resources from the council tax in competition against adult social care and other services. It is no wonder that it misses out. At this very late stage on the Bill, I ask my noble friend whether the Government could show a little ankle on this, move a little towards empowering local government and trust it to get this right.

[Lord Lansley (Con)]

My Lords, I apologise for intervening before the noble Baroness, Lady Pinnock, has a chance to speak to Motion R1, but I have to disagree with my noble friend on this occasion. Last week, we had a debate on planning fees, in which I participated. The risk in what the noble Baroness proposes is that it would lead to local authorities significantly increasing the fees that would be charged for householder applications.

I remind the House that I chair the Cambridgeshire development forum. As far as larger developers are concerned, the point I made last week is that we should promote planning performance agreements to enable local authorities and developers to come to proper agreements, with potential sanctions and performance obligations on the part of the local planning authority. They would give them access to greater resources in dealing with major developments. I fear that what the Liberal Democrat Front Bench proposes would just lead to increases in fees for householder applications.

I also want to say a word about Motion M1 on climate change. The noble Lord, Lord Ravensdale, knows that I thoroughly agree with what he proposes but, at this stage, sending back the same amendments is inherently undesirable if it can be avoided. I hope that my noble friend on the Front Bench will tell us more about how the Government will use the new national development management policies, which will have statutory backing. If the Government set down NDMPs in terms that are clear about the importance of decisions that take account of mitigation of and adaptation to climate change, they will have the effect that my noble friend and other Members of the House look for from this Motion.

The distinctive point of the original Amendment 45 was that it would extend specific consideration of mitigation of and adaptation to climate change to individual planning decisions—there is plenty in the statute about the application of this to plan-making—so that is where the gap lies. That gap can be filled if national development management policies are absolutely clear about how decisions are to be made on the impact of climate change. I hope that my noble friend says something that allows me to feel that we do not need to send the same Amendment 45 back to the other place.

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[Lord Stunell (LD)]

My Lords, I thank the noble Earl, Lord Howe, for his kind words and for the time that he devoted to this particular aspect of a very long and complex Bill. Nevertheless, it is regrettable that he has not yet seen his way to accept the sensible and reasonable amendment that noble Lords sent back to the Commons on Report. Its purpose was to safeguard the rigorous safeguards built into the Building Safety Act 2022, which this House was united in supporting and which was designed to establish a robust regulatory regime that would ensure there was never another Grenfell Tower disaster. Less than 12 months later, and before the new regulatory regime even comes fully into force, the Government are giving themselves and their successors sweeping powers to rip it up—save only for a very flimsy affirmative Motion on a statutory instrument as a defence.

The modest amendment your Lordships sent to the Commons simply required the Government to accept that, if they wanted to change the fundamental structure and mechanics of delivery of the building safety regime, that must be justified to and approved by Parliament. The Government’s response, which the noble Earl has just repeated, is that they do not want to change the fundamental structure and delivery of the building safety regime. All they want to do is take it away from the Health and Safety Executive, lock, stock and barrel, with no changes at all, except in the nameplate and the branding. If that is true, the amendment before your Lordships today is exactly in line with their intentions.

Motion X1 picks up the point the noble Earl made about the original amendment to the Commons—that it was flawed because the wording would obstruct the transfer of the statutory committees from the HSE to the new, completely unspecified and unknown safety regulator. The revised wording in Motion X1 therefore makes it clear on the face of the Bill that it will be lawful to make that transfer. This amendment is designed simply to avoid changes in how the new regulator is structured and organised and to prevent changes to the tasks that are entrusted to it and the statutory committees that underpin its work. The amendment, if agreed, would ensure that the Government’s replacement regulator retains those duties and timescales: for instance, to review the regulations relating to electrical fire safety, the safety of staircases and ramps, safe escape routes for people with mobility issues and fire suppression systems such as sprinklers.

There is other detail, but in the interests of time I will simply say that the original arrangement in the Building Safety Act was that those committees and tasks could be changed only by the Secretary of State if he or she received a proposal from the regulator to put into place. That was because it was seen as very important that the regulatory regime should never again be captured, as it had been in the past, by departments and Ministers taking short-term political decisions, and that the regulator would always be able to independently assess needs to improve safety and then make recommendations in public to Ministers for them to decide on action.

The noble Earl has offered us a sincere undertaking that, at least for the time being, nothing will change; that Ministers will not be tempted to steer away from making essential safety improvements that they deem politically difficult or a bit too costly; and that they will faithfully press ahead without delay when those fire safety reports come in, however revealing and unwelcome they prove to be. Of course the noble Earl is absolutely sincere, but I say to him that Ministers and Secretaries of State come and go, and the sincerest of undertakings can be withdrawn when the facts are said to have changed. The accountability given by an affirmative resolution is tenuous.

I urge the Minister to retain the progress made during the enactment of the Building Safety Act by safeguarding those statutory committees, reinforcing the obligation for those long-awaited safety studies and making sure that the three-year timescale is retained. The way to do that is for him to say that, on mature consideration, he will accept Motion X1. I beg to move.

[Lord Young of Cookham (Con)]

My Lords, I will speak to Motion ZC1 in my name. I pay a heartfelt tribute to my noble friend for the real progress that has been made since we last discussed this matter in helping qualifying leaseholders who extended their lease after the Building Safety Act came into effect. In a nutshell, the Act extended protection to qualifying leaseholders against the costs of remediation. However, inadvertently, it said that, if you renewed your lease after it came into effect, you lost that protection.

The Government recognised that there had indeed been a mistake and, on Report, I moved what is now Amendment 243, which would retrospectively have put the leaseholders who extended their lease back within the protection of the BSA. At the time, before the Bill went back to the other place, my noble friend resisted my amendments and said that the issues require

“very careful legal dissection and working through, and that is what we are doing”.

When I summed up, I said:

“In a nutshell, the Government made a mistake when they drafted the Building Safety Act. Unwittingly, they have removed the protection that some leaseholders were entitled to. They have known for months that there has been this defect, and I do not accept that the defect is so complex that it cannot now be put right. That is what my amendment does. I seek leave to test the opinion of the House”.—[Official Report, 18/9/23; cols. 1248-95.]


I do not know what my noble friend said to the department when he got back, but what had previously been impossible to do within the context of the Bill suddenly became possible. I am grateful to my noble friend for tabling Amendments 288A, 288B, 288C and 288D, which, in effect, do what I asked the Government to do last time. As I said, I am grateful to my noble friend for the pressure that he put on the parliamentary draftsmen to correct an injustice that had unwittingly been perpetrated.

Against that background, it might seem churlish of me to have tabled Motion ZC1, but there remains a problem: leaseholders who extended their leases, and therefore lost the protection of the BSA, will have received invoices and bills for payment, and some may have made payments. As drafted, the government amendments do not entitle those qualifying leaseholders to a refund. I am grateful for the Public Bill Office’s help in drafting my Motion ZC1—I hope that will inject a note of caution into any remarks that the amendments are imperfectly drafted. The Motion seeks to say that, in those circumstances where a qualifying leaseholder has already paid the remediation costs, but need not have, they are entitled to a refund.

Under the Government’s amendment, there is a provision whereby the Government have powers, under regulations, to make certain provisions. I want my noble friend to answer a question that was put twice in the other place. The Opposition spokesman on housing, Mr Pennycook, said:

“we welcome the concession that has been made, albeit with one proviso: Ministers must take steps to ensure that leaseholders who paid service charges over the past 15 months in the belief that they were not eligible for the leaseholder protections under the Act, because of the Government’s mistake, are reimbursed. Those individuals should not suffer financially as a result of a drafting error that should not have been allowed to occur in the first place. If the Minister—I hope she is listening to this point—can provide us with some reassurance on that point, we will happily accept the Government’s amendment in lieu”.—[Official Report, Commons, 17/10/23; col. 199.]

My honourable friend the Father of the House, Sir Peter Bottomley, made the same point.

In winding up, Rachel Maclean was under tremendous time pressure because of the timetable Motion in the other place, and she was not able to answer either of those two questions. So if my noble friend is unable to accept my amendment, as he implied, I ask him for an assurance on the provisions of his amendment, which enable certain regulations to be made in proposed new subsection (11):

“The provision that may be made in regulations under this section includes … provision which amends this section; … provision which has retrospective effect”.


Can he assure me that, if a leaseholder has paid a bill and need not have, my noble friend will use the powers under his own amendment retrospectively to entitle that leaseholder to a refund? That is the import of my amendment, which I do not wish to press to a Division—but I hope that, in return, my noble friend will be able to give me that reassurance.

My noble friend’s Motion ZC knocks out a whole range of amendments that were passed without a Division in this House and that extended protection to non-qualifying leaseholders. These are basically leaseholders living in buildings under 11 metres; enfranchised leaseholders, who are counted as freeholders for the Act; and those who own more than three properties in buy-to-let investments. There are real problems: people in buildings under 11 metres get no protection at all, cannot get a mortgage and cannot sell. They have to pay the cost of remediation, because that is the only way that the building can get insured. They face exactly the same problems as people in buildings over 11 metres, but they get no protection at all. There are also leaseholders who, following government advice, enfranchised and became freeholders. Despite assurances I was given by the then Minister that they would be treated as leaseholders, the Bill treats them as freeholders and denies them the protection extended to leaseholders.

There is also the problem of those who have buy-to-let properties. A person who owns a £1 million property and other properties overseas is protected, but someone who owns three properties worth £100,000 each gets no protection at all. People who jointly own a property with their husband are counted as wholly owning. There is a whole range of outstanding issues from the Building Safety Act that I understand cannot be addressed in the Bill, but, again, I hope that my noble friend is able to say that, in the proposed leasehold reform Act, it will be open to the Government to reopen these unresolved problems in the BSA and that legislation will be proposed to address at least some of the issues arising from the BSA that I have outlined and that I believe remain unsolved.

In conclusion, I thank my noble friend again for his efforts in response to my original Amendment 243, but I hope he can give me the assurances I seek for leaseholders who have paid bills that they need not have.

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[Earl Howe (Con)]

I am grateful to noble Lords for their comments on this group. I thank my noble friend Lord Young for his kind words on government Amendments 288A, 288B, 288C and 288D. He asked about his Motion in relation to leaseholders who have paid remediation costs since losing the protections. Like my noble friend, the Government are concerned about leaseholders who have paid a significant service charge where they have lost the protections upon extending their leases. Those who have paid out remediation costs while outside the protections may be able to bring a claim for unjust enrichment.

I should point out to your Lordships that we are not aware of this issue being raised with us by any affected leaseholders, so it may well be theoretical in nature—my noble friend may contradict me on that. That said, if we do come across any cases where remediation charges have been paid and are not returned, the Building Safety Act contains a power to make secondary legislation that we believe enables us to provide a bespoke remedy to this issue. If cases do come to light, we will consider carefully whether that is the right thing to do.

[Lord Young of Cookham (Con)]

I am very grateful for what my noble friend has just said. However, will leaseholders first have to go through the process of claiming unlawful enrichment before the Government introduce the provisions he has outlined—which I welcome—or will the Government use the provisions under subsection (11) of new Section 119A to give them the protection without first obliging them to go through a complex process of claiming unlawful enrichment?

[Earl Howe (Con)]

As I said, we will carefully consider what is the right thing to do. I have no briefing on whether it will be necessary for leaseholders to make a claim either directly or through the courts. We will make a decision as to what is right in all the prevailing circumstances. I am afraid I cannot go further than that.

I can assure my noble friend that we completely appreciate the point that he has raised, and the Government are looking into what we can do for leaseholders who have had to pay excessive service charges where they have lost the protections. For the reasons I have set out, including the potential for unintended consequences which I described in relation to Amendment 242, I ask my noble friend not to press his Motion on Amendment 288E.

On the other issues he raised, I cannot, as my noble friend will understand, pre-empt the forthcoming gracious Speech or what may be contained in it; it would be quite improper for me to do so. However, I can tell him that the issues he has drawn our attention to will be carefully considered in the department I am representing.

On Motion X1, in the name of the noble Lord, Lord Stunell, I recognise his continued concern and repeat my earlier assurances that the Government do not intend to interfere with these important committees. Section 12 of the Building Safety Act contains appropriate provision to change the statutory committees of the building safety regulator as needed in the future. This gives the Government and regulator the flexibility needed to adapt the role of the regulator and its statutory committees.

We do not agree that it is appropriate or necessary to impose restrictions on the use of that section. We are concerned that, as drafted, this restriction would cause confusion while potentially preventing the use of the powers in Section 12 of the Building Safety Act to make changes to the statutory committees of the regulator in the future.

The Government do not intend to use the power in any way imminently. We consider it necessary to create the ability to move the building safety regulator to an existing or a new body in the future, but we would look at any options very carefully and consider the recommendations from the Grenfell Tower inquiry before confirming the best way forward.

This does not affect the timeline for the building safety regulator’s important work. We expect the regime to be fully operational by April 2024, and we are determined to support delivery of the programme to that timetable. The changes will make sure that we are ready and have the flexibility in place to respond quickly to the Grenfell Tower inquiry report when it is published and that we can be radical and long-term in our thinking.