If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

moved Amendment No. 58:

moved, as an amendment to Amendment No. 58, Amendment No. 59:

I underscore briefly one point made almost in passing by the noble Baroness, Lady Miller. She alluded to the recent very steep rise in food prices and the anticipation that for the foreseeable future we are going to have to live with higher food prices. That adds force to the case she has eloquently made for the better provision of allotments.

I pose a couple of questions which the noble Baroness may be able to answer in due course. She refers in proposed new subsection (1) in her amendment to a duty on the HCA to,

“provide a sufficient number of allotments”.

I wonder how she defines “sufficiency”. In proposed new subsection (4) she would require the HCA to,

“maintain a waiting list and manage the allotments under the same provisions as if it were a local authority”.

It would be helpful if she could clarify what she believes the principles should be for prioritisation in allocation of allotments to people on waiting lists.

Finally, I agree with the noble Lord, Lord Greaves, that these matters would be best left to local authorities.

I support the spirit of the amendment proposed by the noble Baroness, but urge my noble friend to resist the idea that the Homes and Communities Agency would have this responsibility, for two reasons. I think that the noble Baroness has absolutely nailed the problem, which is that local authorities are not satisfactorily carrying out their duties in terms of making allotments available.

I echo everything the noble Baroness said about the value and benefits of allotments. However, I really do not think that it is reasonable that the Homes and Communities Agency should be put on a hook and local authorities left off the hook, as provision is their responsibility. It is reasonable and entirely right that the Homes and Communities Agency, as is good practice in good planning for urban regeneration, ordinarily thinks about allotments as part of new urban developments. I expect that organisation to carry on doing that, but it should not have this duty put in the Bill. I am sorry not to be able to support the provision, but we are letting local authorities completely off the hook if we do.

It is possible to argue that there are two aspects of this. One is the provision of allotments and the other is their management. There is perhaps a case for making it a duty on the Homes and Communities Agency to consider whether it is appropriate to provide land for the allotments on one side of the equation, but that land should subsequently be managed and dealt with entirely—I agree with the noble Baroness, Lady Ford—by the appropriate local authority.

There is no doubt that if we are going from a period of surplus food when anyone could have anything they liked for a song to a period when food is generally in short supply, the demand for allotments will increase, particularly in the major urban areas. There may be less demand in more rural areas, where more houses tend to have gardens anyway. However, I do not expect to see a plea for Hyde Park to return to being allotments, as was once the case; I hope things are not going to get that bad.

It would not be unreasonable for the Homes and Communities Agency to have to consider whether land should be provided for allotments as part of its responsibility, although I accept that it should not be any part of its responsibility to have to manage it.

I would have considerably more sympathy for that point of view were it not for the fact that the National Land Use Database currently shows local authorities to be currently stewarding in excess of 60,000 hectares of surplus or brownfield land. It is reasonable for them to look to their own house first of all before they look to the national agency.

We could go backwards and forwards on this one. Theoretically, brownfield land has had some form of development on most of it already, and may not be at all suitable for allotments.

That was an excellent short debate. I am grateful that the noble Baroness has created an opportunity for this. As she knows, I have a great deal of sympathy for what she said, for reasons that will become clear. I am sorry that I missed the debate that started in 1649; I would have enjoyed that. This is a landmark year, being the centenary of the 1908 Act, and we are right to mark it. She is also right—this has been echoed around the Committee—that the benefits of allotments to the community and to the individual are legion. There is nothing but support for the provision of allotments in my department on my behalf.

I shall start by taking the amendment to Amendment No 58, and I echo what the noble Lord, Lord Greaves, said. Essentially, we are dealing, and have been since the first protections were created in law, with the fact that allotments are the responsibility of the local authority, and rightly so. For the reasons that have been given, they must remain so. The noble Lord’s amendment about management therefore underscores the point, as he explained it, about the importance of retaining that status.

Allotments are different in so many ways. They are the only bits of green space in the community that are given unique special protection by legislation, reinforced by planning guidance. They are not treated as previously developed land, which is crucial. It is difficult for them to be disposed of or built on. When you look at where we have come from, with the loss of allotments since the war, it is a dramatic and rather sad picture. It remains the case, though, that a council can dispose of an allotment in exceptional circumstances only if it can fully justify to the Secretary of State for Communities that there is a need for a change of use against robust criteria. The fact that those criteria are robust does not conceal that we have had to take action in recent years to slow up the loss of allotments. Following a DETR Select Committee inquiry in 1998, we strengthened and reinforced in 2002 the criteria for the disposal of statutory allotments by planning policy guidance 17, which ensured that communities’ need for allotments would be taken into account and that the local authority would have to show that an allotment was surplus to need.

We come back to the point regarding the key to ensuring that allotments are there for those who want them. It was useful to have the examples about the size of waiting lists, because there is no doubt that in some parts of the country we are seeing a renaissance of the allotment and a different profile of the allotmenteer, as it were. I have visited the Dig for Victory allotments in St James’s Park, which I recommend to noble Lords; they are magnificent and involve a lot of schoolchildren. I also recommend the allotments that I visited in south London, which showed beyond doubt that they were a resource for a very mixed community. All sorts of fruit and vegetables are grown by different ethnic communities, and there are even beehives. It is a place where the communities meet and people mentor each other in the growing of fruit and vegetables. My noble friend Lord Howarth was absolutely right—allotments are wonderful places.

The key to improvement and the key to achieving the sort of changes that the noble Baroness and I want is not a change in the law, but better and more systematic implementation of it. Therefore, in the past year we have tried to engage positively with, and to promote good practice by, allotment organisations and those who mentor in allotment offices, for example. That has given us a better understanding of the issues. In June last year we published revised guidance for plot holders and in the past year we have worked closely with the LGA, which has been sympathetic and proactive to the needs of allotment officers, which are the key to this. They look after allotments—whether by protecting them from vandalism, making sure that the waiting list is not growing out of control or ensuring that allotment holders are informed about prospects and possibilities. They are the people who make a difference.

We updated and published a second edition of Growing in the Community in March, to which the noble Baroness referred. That reflected the significant developments in the allotments movement since 2001 and highlighted their importance. It provided an up-to-date account of policy and a guide to the legislation by making it absolutely clear that no local authority should be in any doubt about what the law says has to be done if there is any question of allotments being under challenge for whatever reason, and that nor should there be any doubt as to the rights of the allotment holders. What gave me confidence that that was the right way to proceed was when I hosted a round-table meeting with all the key allotment organisations in November last year. Together we agreed that the legislation was robust, but that there were considerations of clarity in the application of the legislation. Going forward with those organisations and working with local authorities to follow up how they are managing their allotments is very important.

In brief, Section 23 of the Small Holdings and Allotments Act 1908 places a duty on local authorities, except inner London boroughs, to provide sufficient allotments where they consider there is a demand for them in their area. The planning system, through PPG17 on planning for open space, sport and recreation and planning policy statement 3, provides the framework for protection and provision that I have been talking about. In particular, PPG17 advises local authorities to make provision for all types of public open space and expects local authorities to undertake robust assessments of local needs and audits. That suggests to me that a local authority, under PPG17, is in a position to make some very positive choices about the potential of its brownfield land or anything that may be available that is convertible to allotments. Robust assessment might create an opportunity for assessing what a local authority means by sufficiency. I cannot answer the question here, because it is a local diagnosis. PPS3 is a positive response to and recognition of the fact that we need more open space. In those definitions, there is room for allotments as well.

I thank my noble friend Lord Greaves for his helpful amendment. I do not disagree with any noble Lord that allotments should be managed locally. The comments of the noble Lord, Lord Dixon-Smith, were helpful, because provision and management are separate. For that reason, I was interested also in the experience of the noble Baroness, Lady Ford, who spoke about the thought that goes into planning. That reflects the Allotments Act 1925, which states:

“Every local authority … preparing a town-planning scheme in pursuance of the Town Planning Act, 1925, shall, in preparing such scheme, consider what provision ought to be included therein for the reservation of land for allotments”.

The noble Baroness’s experience is useful in instructing us to make sure that in every scheme, especially if the HCA is to be the planning authority, that Act is followed.

I am glad that the noble Lord, Lord Howarth, asked me what I considered a sufficient number, because there is a gap in the legislation. It would be usual for the Government to come up with guidance about that. I have cited many numbers today, but that is the only one to which I may want to return on Report. The noble Lord mentioned waiting lists. I am not aware of any local authority prioritising people with young children or people who have just retired; I think that it is Buggins’s turn. When you put your name down, you wait. If you are not dead by the time you rise to the top of the list, you get an allotment.

I thank the Minister for her full reply. We may come back with a better definition of “sufficient” on Report.

I beg leave to withdraw Amendment No. 59.

Amendment No. 59, as an amendment to Amendment No. 58, by leave, withdrawn.

I beg leave to withdraw Amendment No. 58.

Amendment No. 58, by leave, withdrawn.

Clause 11 agreed to.

Schedule 3 [Main powers in relation to land of the HCA]:

moved Amendment No. 60:

I endorse the spirit of the amendment. The noble Baroness is to be congratulated on hitting on an extremely important issue. It has become almost a commonplace to observe that the design of the spaces between buildings is as important as the buildings themselves. That is a principle of broader application than the application in this amendment, which relates to areas of outstanding natural beauty and national parks, but we should be grateful to the noble Baroness for reminding the Committee of the importance of design and conservation in natural spaces and in spaces between buildings. That is very much in the spirit of what the Committee has already endorsed in considering other aspects of design. Therefore, I hope that the Minister will be able to reflect carefully on the very important issue raised in the amendment.

Amendment No. 61 in this group is in my name. It would insert the words:

“The HCA shall ensure that its plans and activities fully respect the purposes and objectives of Green Belt designation”.

In a sense, this deals with a special case as regards planning issues and the relationship between the HCA and local development plans and so on, which we shall come on to when we talk about designated areas. However, it goes wider than that because it refers to the HCA in all its activities and not just as a planning authority in some places.

The green belt has been one of our most successful planning tools since the inception of the modern-day planning system. It helps to safeguard the countryside and precious open spaces near large urban populations; it protects an area’s character and identity by preventing settlements from coalescing; and it curtails urban sprawl and encourages regeneration. Although there has recently been much more debate about how efficient green belts are and about how permanent they should be, all those things remain fundamentally true. It is vital that the HCA fully recognises those benefits and that it has a high regard for green-belt objectives and purposes.

As we know, the green belt is threatened in many parts of the country. Over 1,100 hectares of green belt have been lost each year since 1997 and at least 45,240 homes, equivalent to a city the size of Bath—I am not sure why Bath is given as the example—have been built on green-belt land since 1997. London’s green belt has been subject to review in 18 locations. Until fairly recently, when people talked about the green belt, they were referring to London, but green belts have appeared in the rest of the country over the past 25 years.

To protect the green belt, it is necessary to put in place measures to avoid abuse of powers and address potential conflicts of interest—for example, between the HCA’s roles as developer, landowner and planning authority, and in its role as a provider and facilitator of social housing. Of course, these conflicts are not new. Local authorities manage, and in most cases have good systems for dealing with, these kinds of conflict. The point about local authorities is that they are elected, local and democratic and, in most cases nowadays, they take their decisions in a fairly, and sometimes very, open way, exposed to local debate. The way in which a big national quango works is different. It may be less different than some of us fear; nevertheless, it is different. The purpose of the amendment is to put on the face of the Bill a clear requirement to take note of the importance of the green belt.

I support both amendments on similar arguments to those of my noble friend Lord Howarth, that these green spaces are an essential part of the well-being which homes need to produce. Just as it should be the responsibility of the Homes and Communities Agency to ensure good design in order that homes should induce well-being, so it should have a complementary responsibility to maintain green spaces for the same purpose.

Two important debates have also been raised on these amendments. I am very happy to reply and to give assurances in both cases.

On AONBs, an issue raised by the noble Baroness, Lady Miller of Chilthorne Domer, there is nothing in the Bill that lessens the current levels of protection that these special kinds of land enjoy. I am grateful to my noble friends for pointing out the ways in which they are special and precious to us. Any development in which the HCA is involved will be subject to the planning system. It is highly unlikely that it would want to develop land in an AONB, national park or even on open spaces, village greens, common land or allotments. In the very unlikely event that it did, it would have to secure planning permission in the normal way. It has to fully respect the protection afforded to those types of land.

As the noble Baroness knows, there are very strong protections around our national parks and areas of outstanding natural beauty. Our planning statement PPS7 states that they have the highest status of protection in relation to landscape and scenic beauty. The conservation of the natural beauty of the landscape and countryside should therefore be given great weight in planning priorities and development control decisions in these areas. The conservation of wildlife and the cultural heritage are important considerations. They are a specific purpose for national parks, where they should be given a great weight in planning policies and development control decisions. That is completely unchanged and uncompromised by the Bill. Indeed, as well as reflecting these priorities, local development documents and regional spatial strategies should also support suitably located and designed development. The HCA could be involved in helping to deliver that. The Bill does not give it any right to override those existing protections. As I have said, major developments should not take place unless there are exceptional circumstances.

PPS7 also states that because of the serious nature of the effect that major developments may have on these areas of natural beauty, and taking account of the recreational opportunities they provide, applications for all such developments should be subject to the most rigorous examination. They should be demonstrated to be in the public interest before being allowed to proceed. These are very specific and robust protections.

However, the noble Baroness raised an issue that I would like to take away. As constructed, the amendment relates to the Commons Act, which provides for better protection of common land and village greens by streamlining the consensus system for works and fencing on commons. It ensures that existing statutory protections are applied consistently, including reinforcing existing protections against abuse, encroachment and/or unauthorised development. That would apply equally to any development involving the HCA.

The noble Baroness has prompted me to consider whether we may need to look again at the provisions in this proposed legislation where the HCA seeks to develop special land in relation to the provisions of the Commons Act 2006. We obviously need to be absolutely certain that we have got this right and I am going to look again at those provisions to make sure that the protections are maintained.

Turning to the amendment in the name of the noble Lord, Lord Greaves, again there is no question that the creation of the HCA and its powers somehow threatens the green belt. I am absolutely delighted to be able to make clear, once again, that the green belt gives important protection to the countryside. The housing Green Paper and the planning White Paper reinforced the Government’s commitment to the key principles of the green belt, and we have no plans to change our policy on it. As the noble Lord, Lord Greaves, said, it has helped to check the sprawl of large built-up areas and helps to protect the countryside. I remember seeing a map showing the implications for the south-east had the Town and Country Planning Act 1947 not been in force to create such protections. There has been an overall increase in green-belt land since 1997 by 64,000 acres. Progress was monitored in the period 2003-07. Excluding the 47,300 hectares designated as national park in 2005, the total green belt increased across England by 11,400 hectares.

I thank the Minister for that reply, and for looking again at the Commons Act. We certainly appreciated what a difficult Act it was when it was going through, because of all the historic interpretations. As she said, it is important that its fit with the Bill is exactly right. However, the spirit of my amendment is very much that the HCA must have regard to all the special landscapes that we value so much. That does not mean that there would never be any building in them. Listening to the debate yesterday, having had the pleasure of serving with the noble Lord, Lord Best, on his Joseph Rowntree rural housing commission, and having spent many years in a county where there are many special designations, I know that we would not want nothing to happen. Rural housing is still important, but it must be built in the right way in the special areas. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

[The Committee was suspended for a Division in the House from 4.33 to 4.43 pm.]

moved Amendment No. 62:

My Amendments Nos. 63 and 64 are in the group. I shall speak first to Amendment No. 64, which is more straightforward and is about the power set out in paragraph 9 to curtail the decision-making process. It states:

“The Secretary of State may make a final decision without further investigation … if … the Secretary of State”,

thinks the grounds of the objection are fully understood—I am paraphrasing—and that he is satisfied that there is sufficient information available. That is slightly different from the normal position whereby the highways authority would extinguish a public right of way, rather than, in this case, the Secretary of State on behalf of the HCA. We have a position whereby the appeal is to the Secretary of State against the Secretary of State’s decision. Normally an appeal on a right of way is to the Secretary of State against a decision of the local highway authority.

So already we have a situation that is not quite as transparent or fair, perhaps, as it normally is. Equally, I understand that at the moment an objection to a proposal to extinguish a right of way invariably goes to a public inquiry. The provision says that under these circumstances it will not invariably go to a public inquiry, but the Secretary of State may decide that a public inquiry is not required and it will just be done anyhow. That is a lessening of the rights of objectors compared with the normal circumstances. I would like to understand why, if I have understood it correctly, the Government think that that is necessary or desirable.

Amendment No. 63 is substantially more complicated in that it seeks to remove most of Part 2 of Schedule 3 and replace it with a provision that the Town and Country Planning Act 1990 should apply. I think that we are talking about two things here. My noble friend Lady Miller talked about footpaths and that kind of low-level right of way, which are very important, but if we are talking about major comprehensive developments that substantially change the character of existing localities—for example, building a new town—clearly the whole pattern of all kinds of highways, from roads to footpaths and everything in between, will be substantially changed. As I understand it, the existing legislation is similar to what is set out in Part 2 of Schedule 3, but is it the same?

Legislation to allow this has existed since the New Towns Act 1946. There can be no argument that if major developments which completely remove the existing road and footpath pattern and create a new one are going to take place, substantial legal changes have to take place as well. The question whether the development is desirable is a different, planning issue, but if it is decided to proceed, new road patterns will often need to replace former highway networks. Nevertheless, new legislation should not be allowed to follow existing precedents blindly without it being considered whether they are fittest for the intended purpose. Just because something has existed for the past 50 or 60 years does not mean that it is the right way to proceed now, particularly as local authority structures have changed.

In all cases, the primary Acts which operate at the moment and allow radical revision of highway networks are supplemented by regulations that set out the detailed procedures for extinguishing or diverting existing roads, footpaths and bridleways. They all provide for named national and regional voluntary bodies to be notified of applications for orders—in the case of footpaths and bridleways, for example—as well as requiring advertisement. Will the Government confirm that, if Schedule 3 were to be passed, detailed regulations would set out the procedures, and that the practice of notifying named national and regional voluntary bodies will continue? Does Part 2 of the schedule repeat exactly the powers in the existing legislation or is it different? Are there minor differences? Are there major differences? If there are differences, will the Government tell us what they are so that we can understand why the changes are being made?

My amendment would simply adopt one of the well established procedures in Schedule 14 to the Town and Country Planning Act 1990. The Government may not wish to do that, but if they do not wish merely to re-enact existing legislation, they have to tell us what the changes are and why they are being made. If they are re-enacting existing legislation, why is it not being changed in response to changed circumstances? They are two sides of the same coin. It is a probing amendment.

I share the concern of the noble Baroness, Lady Miller, and the noble Lord, Lord Greaves, about the preservation of the footpaths. I suppose that I ought to declare an interest as somebody who often is active and occasionally battles to keep local footpaths clear—indeed, probably some of the same ones that my noble friend the Minister also walks on. I have to say that on these occasions it is a great comfort to be able to refer to existing procedures, which people, once reminded of them, do fall in with. I think that our footpaths are a very important feature of British rural life. They are enjoyed by many people. The rights to open them were dearly won, as those with long memories will recall, and we should cherish them.

I am grateful to my noble friend Lady Whitaker for identifying an interest that I should declare: hacking my way through quite a lot of footpaths in parishes that shall remain nameless. The quality of footpaths varies enormously within counties, and in another life I would be much more militant about that than I am at the moment. I take these amendments seriously.

I hope I can bring comfort to both noble Lords. The noble Baroness’s amendment asks the blunt question, “Have we got it right?”—that is, has what we have done in the Bill established the right balance? First of all—and this reflects what the noble Lord, Lord Greaves, said—the powers in this part of the Bill are not new. They are closely modelled on the powers contained in paragraph 9 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993 for the Urban Regeneration Agency. I say “closely modelled” because—again, I hope I can address the question of the noble Lord, Lord Greaves—we have strengthened the power in favour of the many people who use public rights of way. In response to debates in the other place, we laid an amendment that made it a requirement that if the HCA wanted a public right of way extinguished, it would have to offer a replacement right of way or show that such an alternative was not required. Part 2 of Schedule 3 and Clause 3 make that clear. That alternative right of way has to be offered, whether or not it has gone to public inquiry. That demonstrates how much we value the protection that we can offer public rights of way.

I stress also that it is for the Secretary of State to extinguish the right of way, not for the HCA. If the Secretary of State were asked to exercise such a power I know she would do so with a great deal of consideration and diligence, not least because the decision would be subject to judicial review.

The import of the amendment—which is essentially an opportunity to have this sort of debate, but I have to address the implications—would effectively mean that the HCA was hampered in regenerating or developing any land that was crossed by a public right of way. It would also mean that there was no statutory way for the HCA to deal with, for example, any electronic communications equipment that may be on land of this type. Part 2 of Schedule 3 allows for that to happen, but only after the Secretary of State has exercised the power to make an order under paragraph 3. I hope that will deal with the thrust of the amendment tabled by the noble Baroness.

I turn to the issues raised by the noble Lord. Regarding Amendment No. 63, it is important that I point out that there is a distinction between the Town and Country Planning Act and the Bill. The questions he raised about the role of local authorities are reflected in that difference. As I read the amendment, it appeared intended to ensure that the same procedure was followed for the extinguishment of public rights of way over land owned by the HCA as for land held by local authorities for planning purposes under the Town and Country Planning Act 1990. My assumption was that the noble Lord considered that the TCP Act 1990 contains an established procedure for extinguishing public rights of way and that that procedure should apply in the case of public rights of way over land owned by the HCA. I shall explain the difference between the two and then answer his question about what has been updated.

The procedures are in many ways extremely similar. In particular, Schedule 14 to the Town and Country Planning Act 1990 and Part 2 of Schedule 3 to the Bill provide for notice of the order to be published and served and for a public local inquiry to be held in certain circumstances. The procedures are not identical but they are similar. In both cases the local authority or the Secretary of State must be satisfied that an alternative right of way has been or will be provided, or that the provision of an alternative right of way is not required. That is the important safeguard. Essentially, the key difference is the question of who has the power to make the order extinguishing the public right of way. Section 258 of the Town and Country Planning Act gives a local authority the power to make the order to extinguish a public right of way over land which is held by that local authority for “planning purposes”. The local authority may make the order itself if the order is unopposed but it must be confirmed by the Secretary of State if it is opposed.

I am grateful for that detailed reply. I am not sure that I understood all of it straightaway, but I shall certainly read it carefully and add to my homework on the train tomorrow. If my drafting of the amendment was inadequate, I am duly admonished by the Minister; it performed its purpose of raising the issue and of establishing the basis of the argument. It is not my intention at all to suggest that unopposed orders should require a public inquiry; that would clearly be nonsense. It is my intention to suggest that orders which have objections to them should require a public inquiry in exactly the same way that is required for highways authority proposals. That is the difference and we will want to look at this matter further and perhaps have some correspondence about it. I will take further advice from people who are far more expert than I am in these areas.

I completely concur with my noble friend. There is a strong parallel between the way that a local authority would act if it was trying to do something on its land and the way that the Government are approaching this when their quango is doing something. That is how I see it and that is how the public see it. The points that my noble friend has made are quite right and I look forward to correspondence on that matter being copied to me. Perhaps this is a precursor to our discussion on Clause 14 and, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 63 and 64 not moved.]

moved Amendment No. 64A:

One way of avoiding this problem would be if the Homes and Communities Agency simply did not purchase burial grounds. Then we would not have this difficulty. Of course, the Minister may be able to explain why the Homes and Communities Agency must purchase burial grounds, although, for the life of me, I cannot think of a reason. The same argument could be reasonably applied to consecrated ground. I accept that there is a possible issue regarding town and community design when one is dealing with very large developments, but I would have thought that that would be exceedingly rare, and the actual “need” to purchase this land would have to be proved before such a situation arose.

The only circumstances in which the HCA might find itself in possession of a burial ground are because it would inherit it as a transfer of surplus land, for example. Certainly, over the past five or six years very strange pieces of land came into the possession of English Partnerships. I cannot recall a burial ground ever coming in but I recall a phone call one day when we inherited land near Chester Zoo, when one of my officials was very perplexed to find that he had dug up a giraffe with anthrax. That was without a doubt the most exotic thing that ever happened to us. But I can foresee circumstances in which the HCA might inherit a burial ground or part of one that might have been annexed to an old hospital or some other institution that came into its possession.

I am grateful for the opportunity to put this on the record and particularly grateful for that last contribution from my noble friend, which reinforces the unique nature of the situation and why we have the provision in the Bill at all.

I start by saying to the noble Lord, Lord Greaves, that “land of the HCA”—it is a wonderfully ringing title, is it not?—means land that the HCA owns. He is quite right about that.

I know that the issue of burial grounds and consecrated land is very emotive and we are all agreed around the Committee that we must be very careful that we treat such land in a sensitive and considerate manner. I am sure that the deceased giraffe was treated with great respect when English Partnerships uncovered its haul. This amendment would hinder our ability to do that.

It goes without saying that it has never been the intention of English Partnerships to target land of this nature for regeneration or development. It would certainly not be the intention of the HCA, to reinforce the point that the noble Lord, Lord Dixon-Smith, made. As the noble Baroness said, it might well have come down through transfer of surplus land, and the example that she gave of the hospital was a useful one, because that would be very possible.

If land were ever to come into this category as part of a critical element of a larger regeneration scheme, and strategic to it, any such land would almost certainly be disused and historic. We might be talking about, for example, a medieval plague pit or an Iron Age burial site, which have great historical significance, must be treated with great care and would come under a lot of other protections.

We will make regulations that will contain comprehensive procedures to deal with the issues raised when human remains are encountered or consecrated land is involved. We are taking the opportunity in the Bill to do that. The procedures in the regulations must be no less stringent than any provisions disapplied and, of course, the use of the land must be in accordance with planning permission. That goes without saying. We are in discussions with the Ministry of Justice over the content and nature of the prescribed requirements and will consult on them in due course. The paragraphs as drafted are modelled on those in the Leasehold Reform, Housing and Urban Development Act 1993 and the Town and Country Planning Act 1990.

I would be pleased to report to the Chamber on the progress that we make with those regulations. If I accepted the amendment, that condition would occasionally, though not significantly, hold up important developments. But we will have the regulations and bring them forward.

I am grateful for the Minister’s comments. She tells us that the provisions here are modelled on previous Acts, the TCPA 1990 and the Leasehold Reform, Housing and Urban Development Act 1993. She may not be able to tell us now, but how many times have those provisions been used during the past 18 or 15 years? I do not know whether anybody knows that but it is an important question. We have been told by the noble Baroness, Lady Ford, that the only thing that she can remember in that regard is a giraffe with anthrax. I do not think that that applies to burial grounds, in this sense. It would be interesting to know the answer. It is easy to churn over existing legislation that was made for a previous era and previous circumstances, under a very different planning regime, and to re-enact it on the off-chance that it may be required.

I can answer the noble Lord’s question; that is very surprising, I know. The prescribed requirements that would have enabled the URA to make full use of the powers which it was granted by the 1993 Act were never made. This means that, had the URA wished to move any human remains, it would have had to rely on the provisions in the Burial Act 1857, which would have required it to obtain a faculty or licence from a bishop or a licence from the Secretary of State. We do not centrally hold records regarding these, so are unable to say whether any has ever been sought or received. That has not taken us a long way forward, but perhaps it gives us a bit of colourful background to why we cannot answer the question.

That begs another question. If it was not necessary to make the regulations then, is it actually necessary to make them now, or these changes?

In the spirit of the Government wanting to be secure and safe and to make provision as and when it might arrive, we should probably carry on with them.

It is not the Government who might want to make this provision but the HCA, which is a large national quango. The Government keep telling us that it is not the Government but whatever it is described as—an agency that is at arm’s length, at least, from the Government. The basic point that I was making was to ask why the powers that the HCA has in issues such as these should be different from the powers that other public bodies have under other existing legislation. Why is it necessary to create special legislation just for the HCA? The answer is that it is what some previous agencies had under previous Acts, but now we have been told that those regulations were never made—so why are we being provided with pages 162 and 163 and two-thirds of page 164 in this legislation, which could just be scrubbed out as not needed?

If the HCA requires this, why should it not have to go through exactly the same procedures that a county council, a borough council or any other body has to go through? That is the fundamental question that I ask. Okay, so that comes from a slight scepticism on my part about large national agencies and, if they are necessary, the need to keep them constrained in what they can do so that they do not have powers that lots of other bodies do not have. It is all to do with the rights of people to object, and so on.

The fundamental point was raised by the noble Lord, Lord Dixon-Smith. If these regulations have not been required for the past 15 years, why are they required now? The Minister tells us that they are required because something might happen—but the truth is that if these provisions had not happened in some historic legislation, the Government would not now put them in this Bill. It is just because they can recycle them and roll them forward that they are being put in here. That comes back to the point that I made about rights of way. When this recycling of historic legislation goes forward, we should really ask whether it is still needed in this day and age. If I were on a jury listening to this discussion, I might say that it was not required now. I might say that because that is what my amendment is saying, but my amendment was probing and I am strengthened in my view.

We will ponder further about these things, but I hope that the Government will do so, too. There is no point in putting legislation on the statute book just for the point of it. There is already far too much legislation and, if we could get rid of some of it, that would be wonderful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 65 and 66 not moved.]

Schedule 3 agreed to.

Clause 12 agreed to.

Schedule 4 [Powers in relation to, and for, statutory undertakers]:

moved Amendment No. 66A:

I have some sympathy with the noble Lord, Lord Greaves, but, more importantly, Part 3 of this schedule is more relevant to the Planning Bill which will come to this House, because this is really a planning matter and has nothing to do with the subject of this Bill, housing and regeneration. This is a serious part of this schedule relating to planning. I would like the Minister to consider very seriously whether it should be here at all, because it would be much more appropriate as part of the Planning Bill, which we know is coming here, although we do not quite know when.

The amendment would remove the ability of the Secretary of State and the appropriate Minister to extend or modify a statutory undertaker’s functions. It may not be immediately obvious to the noble Lord and others what the power and the further clauses that he seeks to repeal are aimed at achieving, so I shall try to take him through that and provide an answer to his questions.

I am sure that noble Lords will be aware that statutory undertakers are a particular class of public body and that the term “statutory undertakers” derives from planning legislation—the noble Lord, Lord Dixon-Smith, made that point. They include, as an example, persons authorised to carry on any railway, light railway, tram system or network, road or water transport, aviation, or gas, water and electricity services. They are therefore fairly fundamental.

Statutory undertakers have as a consequence special status in legislation and—as the noble Lord, Lord Greaves, will appreciate—particular rights to go with their responsibilities. Noble Lords will notice that these bodies, because of their nature, are likely to have duties to own, or have rights over, land in particular locations or to place what is technically called “apparatus” on land belonging to others. The schedule seeks to cater for situations arising from that need. For example, Part 2 applies where apparatus of a statutory undertaker is situated on, under or over land of the Homes and Communities Agency and the statutory undertaker needs to remove or re-site that apparatus because of a development.

In a similar vein, Part 3 of Schedule 2 gives statutory undertakers a right to make representations to the Secretary of State and the appropriate Minister to enable them to continue providing services on land which has been acquired by the HCA that would otherwise not be provided or satisfactorily provided. The statutory undertaker can make representations to the Secretary of State and the relevant Minister to have its functions modified to secure the provision of its services, so that, for example, it may enter that land to continue to carry out those functions.

Equally, Part 3 of Schedule 2 gives a right to the Homes and Communities Agency to make representations to modify the functions of a statutory undertaker so as to secure the provision of new services, or perhaps the extension of existing services, in relation to such land.

The other paragraphs that the noble Lord wishes to strike out set the notification and objection-making procedures that must be followed before an order of this nature can be made. It is perhaps worth adding that the power to make an order under paragraphs 16 and 17 of the schedule are subject to special parliamentary procedure, so the degree of analysis of the issues should not be underestimated before an order can be made.

These powers are not about giving statutory undertakers greater or wider powers; rather, they should be seen as ensuring that this class of body continues to provide the functions that it is meant to provide—for example, railways, water and access to other services.

The provisions are modelled on those contained in the Leasehold Reform, Housing and Urban Development Act 1993, which governed the relationship between the Urban Regeneration Agency—now English Partnerships—and statutory undertakers, as well as on the Town and Country Planning Act 1997. I say in response to the noble Lord that the powers are rarely used. Their function is to provide an incentive for developers and statutory undertakers to reach agreement where the activities of one come into contact with the other. There is interdependency in many instances. Removal of the powers would remove the incentive to sort and make sure that arrangements are put in place. If we were to take away the powers, I suspect that one might see lengthy and costly delays in resolving important development issues.

I therefore caution against removing these parts of the legislation because they have a value, even though I admit that the powers will not need to be used with great regularity. They ensure a degree of certainty that statutory undertakers will be required to continue to provide their functions and that there is no loss of service. I am sure the noble Lord will appreciate that that is important to all concerned if developments are to work.

If the HCA and the statutory undertaker come to an agreement, then there is no need to involve the Secretary of State in either of these sections. What would be the present situation if the HCA and the statutory undertaker did not come to an agreement? How would they now resolve the matter? Can they go for a court order? What would they do now? Is the Secretary of State needed to intervene in this? The worry that I have is that as you pile responsibilities on the HCA—of course, always leaving the door open for the Secretary of State to intervene directly—the top-down nature of the Bill is becoming clearer and clearer.

We shall come to some later amendments but perhaps I may go back a step to footpaths. I remember very well that when the right-to-roam Act was passed we were promised a strengthening of the footpath system. This Bill does not go to the aspect of what has been promised in the past in any way at all. Time after time, as we discuss these amendments, we are setting up local disputes of a serious nature, and any time the people involved in a local dispute get the feeling that it will be settled by the Secretary of State, that dispute will get worse and continue for longer.

My noble friend Lord Eccles is right. I have been trying to work out whether this part of the Bill puts the Homes and Communities Agency either in a privileged or disadvantaged position. For the life of me, I cannot decide which way round my judgment goes. In one sense, one should perhaps say the same thing about the statutory undertaker. If a statutory undertaker has a difficulty with the Homes and Communities Agency over a particular scheme, then, unlike the rest of the world where they would have to come to an accommodation, the statutory undertaker can come to the Secretary of State and say, “Please, Minister, will you redraft our remit so that we can get over this difficulty?”. That would put the statutory undertaker in a privileged position but it would put the Homes and Communities Agency at a disadvantage. The other side of that, of course, is that if there is a problem the Homes and Communities Agency can go to the statutory undertaker and say, “Look, if you rewrite their powers then we can get over this difficulty”. It is quite difficult. That is why I think this planning legislation has no business in here at all.

I beg to differ. The noble Lord’s own party put this in place when it passed the Leasehold Reform, Housing and Urban Development Act 1993. I am sure regeneration issues were in the minds of the legislators at the time because it governed the relationship between the Urban Regeneration Agency—English Partnerships—and statutory undertakers. So I think the legislation is in the right place.

I made the point that this was about ensuring that a solution is found where there are difficulties and a situation is not able to be resolved as one would expect. As we all know, during planning arrangements at a local level you expect the developer and the owner of the land to sensibly sit round a table and resolve these matters. But sometimes that is not possible, and this part of the Bill provides an element of certainty that the parties can make representations to the Secretary of State to modify the functions of a statutory undertaker so as to secure the provision of services, or to extend existing services, in relation to land. That is what the legislation is designed to do. The fact that it is not much used does not necessarily detract from its value because, as I said, it puts the onus on the statutory undertaker and developer to come to an agreement or a reasonable arrangement so that these essential services can be put in place.

I do not know what the noble Lord, Lord Greaves, is going to say but I think that the noble Lord, Lord Bassam, has just said that this creates a “situation of privilege”. If the statutory undertaker and the Homes and Communities Agency do not agree, there is a legal way out, but presumably that would not be possible for anyone else in the country. Would a change in the regulations which apply to a statutory undertaker dealing with the Homes and Communities Agency subsequently be available for the statutory undertaker to use elsewhere? That would be a fairly covert way of extending the remit. I go back to what I said: I think that it is inappropriate here.

I think that the noble Lord needs to look at the matter in this way. Clearly, development issues are sensibly resolved through negotiation, and, in essence, that is all that this provision attempts to achieve. We are not seeking to put any additional draconian or excessive powers in place any more than was the case back in 1993. The arrangements appear to have worked very satisfactorily for English Partnerships and in the wider public interest, and that is what we are trying to achieve through this legislation. We are not seeking to do anything new; we are not seeking to achieve anything that has not already been put in place and achieved in terms of regeneration. This is probably a sensible provision which enables a lot of difficult situations to be sensibly resolved over time.

It may be worth emphasising that these provisions apply only to land that the Homes and Communities Agency owns. I do not think that one can say that it privileges the agency in any respect; it is only in relation to its own land that these provisions work.

That is an interesting question. This issue will not be resolved today; we shall have to go away and think about it. I am glad that the noble Lord, Lord Brooke, has appeared, because yesterday he entertained us with stories of Alice in Wonderland and Lewis Carroll in relation to Otmoor. The more I think about it, the more I think that this is Alice in Wonderland territory. I had a vision of the Secretary of State as the Red Queen, but I thought that perhaps that was not fair and so would not pursue it.

The Minister has just stated that this provision applies only to land owned by the Homes and Communities Agency. If the HCA wants to transfer land to a statutory undertaker, it can do so voluntarily, but if a compulsory purchase by the statutory undertaker can be done only if the HCA asks for it, then it is not required to be done in relation to its own land. However, unless I have totally misunderstood it, paragraph 18 gives powers to statutory undertakers to acquire land compulsorily. That seems extraordinary. I wonder whether this legislation is not rather old fashioned and outdated. Although Ministers keep telling us that it is based on the Leasehold Reform, Housing and Urban Development Act 1993, I suggest that the provisions in that Act have probably been rolled forward from earlier Acts and may go back as far as 1946.

Can I ask the noble Lord a question and make a point? I can see that he has become quite exercised by this. I have tried to explain to him in clear terms how minor issues that come up during development can sometimes be resolved through this process. It is not used greatly. I suggest that we write to the Committee, saying explicitly what the legislation does, how it replicates previous legislation and how that has worked, and giving some examples—a worked example, if we can find one—of how it will beneficially enable development to continue in an orderly process without treading on anyone’s toes and causing general upset and mayhem. There is nothing sinister here. This is a benign piece of legislation, put there simply to ensure that development can move forward in an orderly way.

The Minister has taken the words out of my own mouth. I was going to suggest exactly that, and I am grateful to him for the offer. The legislation may be benign or redundant—or otiose, as people sometimes call it in this House. In other words, it is not required. The Minister kept saying “rarely used”. I wonder if that is a euphemism for “never used”. I do not know. If that is the case, we do not need it. This is the point I was making previously about burial grounds: putting legislation on the statute book that is not required is bad practice and bad law, and we should not be doing it.

I suspect that when this legislation was first put on the statute book, the statutory undertakers were all nationalised industries or government bodies.

Not in 1993.

I am suggesting that 1993 was a roll-forward from previous legislation. If I am wrong about that, I would be delighted to know. I suspect that this legislation goes right back to the 1940s and 1950s. That is my guess. Now the statutory undertakers are almost all private companies. Why should a private company that happens to supply water, electricity or gas—and there might be several of them in an area competing with each other—be in a privileged position, in the words of the noble Lord, Lord Dixon-Smith, compared with other private companies? For example—and I am sorry to talk about where I live—Tesco is trying to get planning permission for a new supermarket in Colne, where I live. Without discussing that application, which we will have to resolve and determine tomorrow night, one of the things Tesco has problems with is that it does not own the land. The land is in several different parcels, and Tesco has requested the local authority to compulsorily purchase that land. That is the way a private company goes about trying to assemble land that it cannot assemble; it tries to persuade the local authority that it is a good idea and that authority will then compulsorily purchase it.

Why is it necessary to give compulsory purchase powers to private companies just because they happen to be providing people with electricity or with a tramway? Why can the compulsory purchase not be done in the normal way by a public authority, at whatever level? That is the fundamental question that lies beneath this. I look forward to the correspondence.

There is a moment in the Mad Hatter’s tea party where Alice is offered some more tea and she says, “As I haven’t had any tea already, there is no way in which I can get more tea”. Is the Minister promising to send correspondence to everyone who is participating in the Committee, or simply to those who are taking part in this amendment?

The noble Lord qualifies on both grounds.

There have been a few occasions in this Committee when things have been modelled on previous legislation. There are some dangers. One is that you can cherry-pick between the various different predecessor Acts to find the bit that suits you best in the circumstances. The other danger is that modelling is modelling, not repeating. So far I have spotted at least two occasions, possibly three, where what is in this Bill is not the same. You could loosely describe it as modelled, but only with a stretch of the imagination. Such exchanges should be analytical, in the sense that they direct us. One such provision we had yesterday was Section 160 in the 1993 Act. It is completely different from what is in the Bill. Yes, it may be called modelled, but it is not the same.

That is a fair point. When we try to demonstrate that there are no hidden add-ons, we will look at how both pieces of legislation work and provide the noble Lord with the examples.

I hope that this correspondence will go to the whole Committee because it is on some fascinating stuff. I look forward to the correspondence and to an historical account of when this particular provision has been used within living memory. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Clause 13 [Power of Secretary of State to make designation orders]:

moved Amendment No. 67:

I shall try to respond to some of the thoughtful points made by the noble Baroness, Lady Hamwee. When I left university I started my working life in the planning department of a local authority, so I have huge respect and great affection for local authority planners. I enjoyed working there and I hope that, in relation to my tenure at English Partnerships, people would always say that our organisation treated with democratic and professional respect those colleagues whom we encountered in local authorities. I shall try to address some of the fundamental points that have been raised, because they are important points of principle.

I begin with skills. The noble Lord, Lord Greaves, said earlier that the planning system has been well developed since 1947, and of course it has, but it is a fact that we have a tremendous shortage of experienced and competent planners right across England and an acute shortage in certain parts of the country. I was flabbergasted some five or six years ago when I visited two or three boroughs not far from here, where I found that the whole development control function comprised of one or two postgraduates from Australia or New Zealand who were on a gap year. That was it; that was the whole professional cadre in two or three large boroughs. To say that we were short of experienced planners would be to somewhat understate the case. When Iain Wright in another place said that he was trying to do something about capacity, he was not overstating the position. It is terribly important when we talk about very complex planning applications, or even straightforward development control, that the agency can help them if local authorities want that. I do not regard what the Minister in another place said as being glib or ill thought through. He very much reflected the seriousness of the current situation.

Equally, I do not believe that the solution suggested by the noble Baroness in terms of cross-boundary working is necessarily as straightforward as it might appear. Certainly in many parts of the country where the need is great for cross-boundary subregional, social and fixed infrastructure, it is very important that we achieve close working. Sometimes that was simply not possible because of the different political complexions and views of authorities, or sometimes turf politics. That was difficult and in some situations we held up meaningful good-quality development for a long time. I do not necessarily accept that local authorities just all get together. I hope that I am correct in saying that for the five Olympic boroughs the planning authority is the Olympic Delivery Authority and not the individual boroughs. The Olympic Delivery Authority is a statutory body.

Initially, it was a matter of the five boroughs working together. It is now, certainly, the ODA. Originally, there was a combination of the boroughs.

I thank the noble Baroness for that. I am sorry that the noble Lord, Lord Mawson, is not in his place, because he might have confirmed that the ODA’s holding the ring has facilitated quick and sensible decisions around the Olympic park. However, those of us who are interested in the regeneration legacy of the Olympics are in despair at the way in which no one holding the ring for regeneration around the Olympic park seems to have held up progress and caused huge confusion. A statutory entity working closely with local authorities makes an enormous difference. If the ODA had not had that ability in legislation, it would not have been able to do that.

Only once in the past six years has English Partnerships used or relied on its own designation powers. That was in partnership with the excellent Liberal council in Milton Keynes—I am not making a cheap point; that council has shown fabulous leadership on very difficult issues. For the area designated for new growth—certainly not for the whole of Milton Keynes—the powers were transferred from Milton Keynes council, with its full support, to a sub-committee of English Partnerships comprising three members of our board, one of whom was the accounting officer, three members from the local authority, four members from the local business community and one independent chair. It now sits as the planning authority for that growth area in Milton Keynes. We would not have been able to achieve the high-quality progress that has been made there, particularly in bringing in investment and putting in place the infrastructure that allows growth in Milton Keynes to be properly planned and of high quality, with all the facilities and services that characterise high growth, had we not been able to rely on those new-town planning powers for that area of designation.

It was never the intention of any Minister or Secretary of State with whom I was involved to rely on those powers, although siren voices would sometimes encourage them to do so. No Secretary of State with whom I was involved would countenance using planning powers in any other circumstance. The former Deputy Prime Minister was clear that only in Milton Keynes would that be done with the explicit consent and encouragement of the local authority. To have this provision in the Bill creates the conditions where, in a benign way, the agency can engage and create a different kind of planning capacity where it is needed for the reasons that I have suggested.

On the narrower but important point of the local development framework, the noble Baroness asked an important question about what happens when there are competing regimes. From my own experience, I anticipate the local development framework always taking precedence. Within that designated area, individual projects would have to be developed in absolute conformity with the local development framework, as is right and proper.

I rather suspect that I have not convinced the noble Baroness, but I wanted to give a few examples of where, in a benign way, the power has worked extremely well.

My Amendment No. 70 is in this group. I shall come to it when I have risen to the fly so deftly flicked over my nose by the noble Baroness, who wondered why we were being fairly gentle with this part of the Bill. I should not have to remind the Committee that we spent an hour on the subject by way of an amendment right at the beginning of the Bill, where we tried to persuade the Government to insert at the beginning of Clause 2:

“Working through the planning system and in partnership with local government and the other agencies already involved”.

If that were included, much of the concern about this section would diminish, and I still think that that is an appropriate way to deal with the matter.

I turn to my Amendment No. 70, which, as the noble Baroness said, is quite gentle. If the Bill were in the form that I would like it to be in, this issue would not cause so much concern. This is a probing amendment, so what I say will go slightly wider than the subject of the amendment. It deals with Clause 13(5), which states that:

“The Secretary of State must, before making a designation order, consult … every local authority any part of whose area is intended to be included in the proposed designated area”.

That is absolutely straightforward, but then, in what I consider to be peculiar wording, it goes on to say,

“any person, other than a local authority, who is the local planning authority for the proposed designated area or any part of”.

For the life of me, I cannot make sense of that bit of English. I am not aware that any person can be a planning authority but that seems to be implied by the way in which that paragraph is written. That little bit of flawed English language is quite important. I think that the paragraph should say, “any person other than the local authority who has an objection to the proposal”. The real purpose of my amendment is to ensure that, having consulted these people, the Secretary of State is obliged to publish the conclusions that he or she has come to as a result of the consultation. That may be intended but it is not written in the Bill.

I agree with what the noble Baroness said about the powers that are there, but my experience—although experience may not be the right word—goes back to the London Docklands Development Corporation, which I have already mentioned. There were five separate local authorities and wonderful people were involved but they were not prepared to co-operate and work together. Something had to be done because nothing was happening, and therefore the right conclusion was made. With the greatest deference to the noble Baroness, Lady Ford, I think that Milton Keynes is a slightly different example. Once the principle of a new town was accepted, there was a large degree of agreement, and the co-operative working which went on there achieved a very successful—“miraculous” may be going too far—operation.

[The Committee was suspended for a Division in the House from 6.12 to 6.22 pm.]

As I was saying before I was so rudely interrupted, I will pick up on one other thing that the noble Baroness, Lady Ford, said. She was talking about the appalling problem of planner availability. From my admittedly limited knowledge, anyone who is any good as a planner almost invariably switches to the private sector very quickly because the pay is better.

Perhaps the tragedy of the situation is that, when dealing with very big applications, local authorities have not become accustomed to using planning consultancies but have relied on their own resources. I accept that this is always difficult for local authorities, which, particularly in the planning field, prefer to have matters under their own control. However, if they are dealing with a complex negotiation over a major development for a large number of houses and the Section 106 situation is very complex, then perhaps getting outside advice, although it may be distasteful, is better than having inadequate advice. I merely make the point.

I hope that the Minister agrees that what we are saying about subsection (5) is worth while. It would not alter the substance of the Bill but it would give people a lot of assurance if the provision were included in that part. They would know what was going on in her mind, despite the warning that was given last night by my noble friend Lord Brooke.

If your market share is falling, you are likely to move to the area where the market share is increasing. Over the past 10 years—I am not taking into account the increase in the number of dwellings from about 20.5 million to 22 million—the private sector market share has risen from 78.7 to 82.5 per cent. That is slightly out of date, but it starts in 1997 and the latest figures include 2006. The local government and social sectors have fallen from 21.3 to 17.5 per cent of the total. That is a clear inducement for people who are involved in a related profession to make a move. To have a completely different set of planning authority powers within the two sectors is quite risky.

I remind the Committee of the Teesside Development Corporation—not quite Milton Keynes. The development corporation was made a planning department, although not by this Administration. It was successful in the sense that it was accepted, broadly speaking, by Stockton-on-Tees and Thornaby-on-Tees. I am sure the Minister knows the story of the Teesside Development Corporation. It was never accepted by Middlesbrough. I do not want to go into the rights and wrongs of whether it should have been accepted or whether Middlesbrough was right not to accept it. All I can say is that the local bad feeling, disruption and confusion that followed from the failed relationship between the corporation and Middlesbrough were something that you did not want to watch. Immediately after the present Administration came in, not only was the corporation coming to the end of its life because there was a sunset clause in the original legislation, but there was a serious row, an investigation and goodness knows what.

The more that we put back into the hands of the Secretary of State, the more likely it is that we will get disputes at local level and people will simply block each other. If everything could be benign, which I think was what the noble Baroness, Lady Ford, said, and if agreement could always be reached, that would be wonderful. I am afraid, however, that the history of some of these matters shows that when people locally understand the powers that the Bill confers upon the Secretary of State, they will find it difficult to remain benign.

I have two points to make here, the first of which is perhaps a bit pernickety. Clause 13(1)(a) says,

“the area is suitable for development”.

I thought to myself, “Development of what?”. The presumption is that it is housing and related matters, but it raises the question of whether there are any other circumstances that the Minister can foresee under which the power could be exercised other than for the building of houses. Can another department use this part to get something built other than housing?

The second point is that the clause links back to yesterday’s debate on Amendment No. 51. When the Minister responded to the bit about eco-towns, she gave us some comfort. She said,

“there is no way in which the Homes and Communities Agency will achieve its very ambitious, necessary targets if it does not work in partnership with local authorities”.

She then went on to say:

“The words of the amendment that: the HCA will, ‘consult with, and have regard to the views of, the local authorities’, go without saying”.

That was all excellent. Then the noble Lord, Lord Willoughby de Broke, intervened and, at the end of his intervention, said:

“Two local authorities have stated their position, reflecting the wishes of the people in their community. Does that count for anything in the Minister’s thinking?”.

Of course, he was referring to the site at Long Marston and the two district councils, Stratford-on-Avon and Wychavon, which voted unanimously against the planning approval for the eco-plan. His question was, “Does that count for anything?”. The Minister replied:

“On the other point, of course local involvement counts. All the responses that we get from local authorities will be taken seriously. They are an important part of the debate, an important signifier, and will be taken into account. On the question of whether there will be eco-towns, we have said that there will be five by 2016 and up to 10 by 2010. That is where the policy sits”.—[Official Report, 3/6/08; cols. GC 37-38.]

I shall just make a few comments to follow on from the interesting point raised by the noble Viscount. He is absolutely right in the example that he gives, but I should like to suggest a couple of things. I explained that there was one example when the powers were used in Milton Keynes, but there were at least three other examples when Secretaries of State were encouraged by other people to oblige English Partnerships. There were three other new towns in England in which the record on affordable and social housing was absolutely abysmal. These authorities had failed signally to meet the targets that were agreed and various policy planning guidance.

It seems rather peculiar that, in almost every aspect of public service, if a local authority signally fails to meet its obligations, central government invariably does something about it and yet we do not do that in planning. I am not suggesting that we should be that aggressive about it but I find it quite puzzling that the Government have to account for their performance in providing housing for young families and people who cannot ordinarily afford market housing and yet local authorities do not seem to have to account for that. I would not want noble Lords to think that I was being naïve or starry-eyed in suggesting that this power might be used benignly; I was simply relating my own experience. In other circumstances in which Secretaries of State might have been entitled to take a more aggressive view, they simply declined out of respect for the local democratic process in cases in which that process was massively failing local communities.

One of the problems, of course, is that one person’s failure is another person’s alternative policy view. That dilemma comes to planning communities probably more than anything else.

Yesterday I tabled an amendment—from memory, I think it was Amendment No. 51D—but it was in the wrong place and so I ignored it. Essentially it was the same as my noble friend’s Amendment No. 73C, which seeks that the actions of the HCA should be within the development plan. I said the local development framework but, in practice, it is the whole development plan. This is a crucial issue which ties in with the suggestion that in areas where there have been designation orders the HCA should be not only the development control authority but also the plan-making authority. This is bound to lead to fears that the existing development plan will simply be swept aside and a new one put in place. This will clearly take some time but, nevertheless, it will be done by riding roughshod over all possible local democratic views. Most places will have different views anyway but, nevertheless, it will be riding roughshod over them.

The noble Earl, Lord Cathcart, referred to eco-towns. These are lurking as an ongoing issue while we are debating the Bill but they do not appear in it. However, it is not clear—perhaps the Minister will provide some elucidation—how far the Homes and Communities Agency is expected to take part in producing the five eco-towns and then the 10 eco-towns—or however many are produced—by 2020. Will the eco-towns be a central function and a central policy objective of the Homes and Communities Agency; or will it be involved in some of them and not in others; or will it not be involved in any of them? If the HCA is going to be the main driving organisation behind the eco-towns in all cases, it will result in a great increase in that area of activity on a par with the first and second waves of new towns. That is something that we have not seen recently.

The noble Baroness, Lady Ford, made some interesting comments. She mentioned Milton Keynes and praised the Liberal council there. She can praise Liberal councils as much as she likes—I do not mind—but the point about Milton Keynes is that the development there was carried out by agreement; it was not imposed. This is fundamental to the eco-towns argument. It is not clear how much of the new legislation in the Bill will be used for eco-towns, how much will be done through the forthcoming Planning Bill and the new Infrastructure Planning Commission, or whether it will be a combination of both. It would be interesting if, either now or at some point, the Minister could tell us exactly how the eco-towns are going to work. I have read the debates in the House of Commons and elsewhere about eco-towns: there is a great deal of discussion about whether they are a good or a bad thing but there is less discussion about how they will come about.

The noble Baroness, Lady Ford, made the interesting and basic comment that there is a shortage of experienced planners, which there is. I sit on an authority which constantly trains development control officers. They then move on to bigger authorities which pay more money or to the private sector and we have to train up more. That is the only way that we can possibly keep an establishment of development control officers in the authority. This is a basic issue. Saying that the really good planners should go and work for the HCA and concentrate on the parts of the country that the Government think are important is not an answer to the problem of not enough planners. The answer to that problem is to train more planners and perhaps pay them more.

The point that I was trying to make, although I may have failed, was not just about the quantum of planners, it was the fact that, having started life as a planner, I know that sometimes very complicated schemes come your way once every 10 or 15 years. For those more complex and special schemes it is sensible to concentrate scarce skills in a single agency that is able to help local authorities. We both agree on the overall quantum of planners, but my point about specialist schemes may be more compelling.

I understand that perfectly fair point. It is equally fair to say that if a local authority is to get an eco-town or another new development of that scale, it is not a one-off that comes and goes, it will be there for a considerable number of years and the answer is to staff that local authority properly with the skilled people required in those circumstances. There is no dispute about that.

Some of the rest of what the noble Baroness said related simply to the conflict between local democracy and involvement and how far national objectives should be imposed on local communities. That debate will go on and on, but there is something of a clash if the answer is imposition of national decisions, when we have a Government who constantly tell us how they are in favour of devolution of policy-making and everything else to local government and strengthening local government and local democracy. The Government have to decide which side of this argument they are on. It is clearly not an absolute matter and it never can be, but many of us would say that the balance has shifted to the centre so much in the past 35 years that if the Government are serious about shifting power back to the local level, they cannot keep saying “Yes, but it does not apply here and there”. We will continue to have that argument on Bill after Bill and in debate after debate.

Finally, this feels a bit like old-fashioned legislation. When the original generation of new towns was planned in the 1940s and the 1950s, the planning system by modern standards was rudimentary. There was very little planning structure in place and development control tended to be a fairly simple, hit-and-miss affair. Slowly, over the years, development control has become much more complex. For example, in the 1950s many planning decisions were made with no conditions at all. They were simply passed. Now even decisions on quite straightforward applications for kitchen extensions and so on will have a page of conditions attached, while decisions on complicated applications will have page after page of conditions.

Linked to that is the development of plans. Town maps developed in the 1960s and plans for the use of land within towns became common, but outside towns there was little other than the national parks, the AONBs and the green belt around London. That should be compared with the detailed plans we have now and the complex planning policy statements. We have PPGs issued at national level; regional spatial strategies are being put together and agreed; we have county structure plans which refer to parts which have been saved and included in the RSSs and so on; we have local plans which are of themselves detailed and complex; and we have the process of local development frameworks, which perhaps is using up all the planners who the noble Baroness, Lady Ford, talked about, who are not available for development control. It is a complex and intricate system. The question that has to be asked is: how does an old-fashioned, top-down approach to taking over an area and developing it fit in to the modern system? If the modern system cannot cope with these sorts of developments, is there not something fundamentally wrong with it? I return to what I said on another amendment: some of this seems like old-fashioned legislation.

I add very briefly to what my noble friend Lord Cathcart said on eco-towns and local authorities’ views on them. Could the noble Baroness be clear about what weight will be given to local authorities’ views on this? After all, this is not a nimby issue. This is not a few people with nice houses who do not want a development near them; this is the result of extensive consultation. It has been the main story on the front page of all local newspapers for two or three months. Local authorities have debated the matter at length.

On local elections, I have to say to the noble Lord, Lord Greaves, that Stratford-on-Avon was one of the few councils that threw out some Conservatives and elected some Liberal Democrat members. This goes across parties—Conservative, Liberal Democrats, Labour—and I think there is even a Green on the Stratford-on-Avon District Council. So the decision is consensual and agreed unanimously, as I said yesterday, by the local council. I know Stratford; I do not know what the complexion of the Wychavon District Council is, but it too has come out unanimously against proposals, as have both Members of Parliament who are involved in this.

What will the process be? Will those expressions of public opinion and the responsibilities of local authorities to their electors be ignored, in the sense of, “Yes, we listen to what you say; we hear what you say, but actually you are going to get the medicine anyway, whether or not you like it”? Is that what is going to happen with eco-towns?

Currently 15 sites are shortlisted. I take it from the response we received yesterday that in the end 10 will be chosen—five and then probably another five—which means that the chances are two to one of getting one. I cannot speak for all of them, but two or three local authorities have come out very strongly against the proposal to have an eco-town. How will the Government deal with this very strong democratic feeling that local authorities do not want eco-towns? Will they be imposed on them? That is the question my noble friend asked. It will be an important answer for people involved in this argument. The consultation period ends on 30 June, so there is not much time for further debate. Therefore, a strongly indicative answer now would be of great help before the next stage of the debate.

This is an important part of the Bill and an important debate. I shall try my very best to feel my way through and make as clear as I possibly can some of the principles, the nature of the evidence that we are dealing with and the historic powers that we are taking forward, and to try to reassure noble Lords, especially the noble Baroness, Lady Hamwee, who seems to be very concerned about the nature of the powers we are taking. I am very anxious that she understands not only how proportionate and important they are, but also how well they are grounded in evidence, participation, consultation and negotiation of partnership.

Before I get on to that, I will deal with eco-towns. I completely understand the seriousness with which the issues are raised. We had a major debate on this yesterday. I cannot make myself much clearer than I did then, except to say to the noble Lord that the discussions on eco-towns have reached a preliminary stage. All views will be taken into consideration—certainly the views of local authorities, which are very important. Alongside the consultation which is going on at the moment into the eco-town choices and the 15 sites, we are consulting separately on a sustainability appraisal and a planning policy statement.

I am conscious of the concerns that have been raised by the noble Earl, Lord Cathcart, and I offer noble Lords a meeting with officials to take them through the process which will surround and contain the planning of eco-towns. Yesterday I said that it would not run alongside or be a separate part of any other process—that it is a planning process. The final decision will rest in the context of a planning application which will be open to every form of democratic representation, should the site about which the noble Earl is concerned get that far. It is a planning process that we are talking about.

I would like to be assured that every Member of the Committee has read the document that sets out the prospectus for the eco-towns because in it, in a detailed appendix, the planning process is clearly explained. However, there is an issue to be addressed here and I will organise a meeting for noble Lords to be taken through the process by the relevant officials quite separately from any other considerations they may have about the local situation. I hope that they will take advantage of that offer.

Let me deal with the specific issues raised by the noble Earl, Lord Cathcart. When we talk about development in this context we are not simply talking about housing but about the ordinary meaning of development, which includes infrastructure and everything else contained in community development.

On the point raised by the noble Lord, Lord Dixon-Smith, the term “person” in its legal definition means, for example, the things we cannot encompass simply by talking about local authorities. It involves the Broads Authority or the National Park Authority, for example. I hope that clarifies those specific points.

I take it then that ordinary people are not involved in the consultations at all. Under that definition, if any “person” is not a person but some other body, that avoids individuals.

We can impose the statutory requirement to consult only on designated agencies. I think it means the collective person. I shall write to the noble Lord in case there is a bit of a loophole.

I turn now not only to the substance of Clause 13 but to the range of amendments which have been tabled, particularly by the noble Baroness, Lady Hamwee. I shall do this in the following way. Buried in the range of amendments is an indication that noble Lords are going to oppose Clause 13 standing part of the Bill, so perhaps I may continue as if this were a clause stand part debate, relate to the amendments as briefly as I can—although they raise important issues—and give my responses in that way. I hope I can do it justice.

It is extremely important that we are as proportionate and collective as we can be. I am grateful for the way in which my noble friend Lady Ford described how this power, which we have inherited from previous legislation, has been used exceptionally in the past. When she was referring to the Milton Keynes partnership, she was talking not about the construction of Milton Keynes as a new town but about the partnership that we have put in place to take further the next stages of growth in the south-east in the context of Milton Keynes. It is a very specific partnership.

The noble Viscount, Lord Eccles, raised a series of issues about the politics of partnerships and the inability sometimes of local authorities to address serious issues because they are incapable of doing so. Again, the noble Baroness, Lady Ford, drew on her experience.

When we look at the very rare occasions on which we might use the powers of designation, we can see that this is an option that will already have been rejected by the Government, for the reasons my noble friend gave, because there are other vehicles and other opportunities. As we look across the growth areas in the greater south-east where we hope to achieve our ambitions for many more houses, because that is where we need them and where the affordability gap is greatest, we are looking at partnerships between local authorities—for example, in Corby in Northamptonshire—at partnerships that are UDCs and are appropriate for what is necessary; and at cross-border bilateral partnerships. Those are all perfectly sufficient for what they have to do. None of them raises issues of designation. That underlines the exceptional nature of what it is we are allowing for.

The noble Lord, Lord Dixon-Smith, said that he wanted to frame his response in the context of the issues he raised around Amendment No. 51D, which we addressed yesterday, and he is right to do so. At the heart of these many different amendments is the respect that we pay to local authorities. That issue is extremely important, and we have had an interesting and positive debate about it.

The noble Lord, Lord Willoughby de Broke, is not in his place, but everything I want to say is about the essential nature of partnership in what we are delivering, and the designation power is not an exception to that. That itself constitutes a partnership; it is not an imposition. When it was agreed in Milton Keynes that this was the right and necessary way forward, it was done in partnership, as the noble Lord, Lord Greaves, has pointed out. It was not an imposition. That is how it would be conducted. How could we possibly go forward with some of these major challenges if all we had at our disposal were a power to impose? It would not work. That is the most important thing I want to say.

We need to retain the option of using this power in case we are faced with circumstances in the future that mean this is the only way forward. I shall come on to the amendment that talks about “necessary” and “appropriate” in that context. Why would it be such a case? As I say, it is certainly not a question of taking powers away. If you look at where we are working in the growth areas, over 70 local authorities have volunteered to work with us on growth in the first round of the new growth points bidding. We are working now in partnership in different ways with 200 local authorities, half of all the local authorities in the country. Nearly all the major towns and cities are working with us on the growth agenda. They know that we cultivate partnership, and that is how we are going forward. They have the experience, but often they do not have capacity. That is where the point about skills comes in. Of course it is a question of growing more skills. Our planning departments and universities are doing their best. We are putting bursaries in and trying to create a cross-disciplinary flow of people to come into the profession. It is opening up in different ways.

We are faced with local authorities that do not have the capacity and yet need it. We had a graphic example of that. They come to our department and say, “Give us more help with this”. This is the ultimate way in which we would say, “Okay, if this is the only way forward. We have a big challenge here. We need 5,000 or 10,000 houses, or whatever it is, and we need to build that community”. That is the sort of discourse we have.

I do not think anyone in the Committee is saying that when a local authority asks for help, there should not be the capacity to provide that help. The worry is about when the help is provided but it is not required or wanted.

The chances of that happening are so small that I can reassure the Committee that it would be a recipe for failure. I do not think there are any circumstances in which that could, or would, happen. However, with our collective experience, with my experience as a Planning Minister for three years and that of my noble friend Lady Ford for much longer than that, we know that it is in these circumstances that we have to think, “How can we best help this local authority, or perhaps this group of local authorities and other agencies, deliver what is necessary?”. That is the option.

It is true that the Bill talks about designation in terms of development control, but it talks also, in Clause 14, about taking on some planning powers and maintaining the local development framework. I stress that taking on the plan-making function would occur in circumstances that would be even more exceptional, because the HCA is not set up to do that—it has neither the resources nor the will. It would be a major distraction from its main responsibilities. The plan-making function would be conferred only when it was considered to be absolutely vital to delivery and where the development plan was so out of date that it could not deliver what was needed. It would be imperative because the plan-making function was not in place and the authority could not fulfil its responsibilities. That is all I shall say in relation to Clause 14.

With regard to taking out the reference to the Planning Act 2008, we would argue only if we thought that it was going to overtake this Bill.

I am very grateful to all noble Lords who have spoken. They have given me a great deal of material to take away and think about. I cannot find the fishing metaphor to respond to the noble Lord, Lord Dixon-Smith. He cited Docklands, as he has done on previous occasions, in support of the need for a mechanism to bring local authorities together. That had an ad hoc UDC specifically for it; that is different from the provisions here, which are more far-reaching.

I am especially grateful to the noble Baroness, Lady Ford. I am so pleased that she is playing such a big part in this Bill, because everything she says is so thoughtful. That sounds so patronising, but I do not mean it that way. It certainly makes me much more confident in the integrity of the processes as they have been put into effect, which is not going to stop me questioning whether the powers are right, but it has been hugely helpful.

On the skills matter and the shortage of planners, as my noble friend said, we all accept that. However, that does not lead me to the conclusion that powers should be transferred. It should be about making expertise available. I had not read Iain Wright’s comments in that light, perhaps because I had not picked up something that had gone before. It is not just numbers; it is expertise in dealing with difficult situations. I do not think that the way to deal with it is by making a constitutional change, if I can put it that way, because we are talking about democratic decisions. In the same way, that is the answer to a point that the noble Lord, Lord Dixon-Smith, made or intended to make about local planning authorities having a shortage and having to go to consultants. The problem is not one which for us leads to this solution.

On the cross-boundary issues and the whole issue of how one brings powers such as this into implementation, the point is that Milton Keynes was under a voluntary arrangement. The fact that the then Deputy Prime Minister vetoed other possible similar uses of the powers of English Partnerships leads me to the conclusion that we should continue questioning the clause, not accept it. In a similar way, almost the last point made by the Minister about the negative resolution being sufficient, because the situation is rare, is an even greater argument for an affirmative resolution.

She talked a lot about designation being an aspect of partnership. It is clear to me that we will have to come back to quite a lot of this on Report to talk about how that partnership comes about. One aspect of partnership is the concurrent functions mentioned in Clause 14(5)(a). Can the noble Baroness write to me to explain the detail of those? I am not sure whether she was saying that they refer to different subsets and aspects of a planning application—for instance, materials and reserved matters—as opposed to those that follow the main application. Would those be handed back to the local planning authority? The noble Baroness, Lady Ford, had a similar problem with that notion and it would be helpful to understand in more detail just how that would operate.

Finally, the Minister was absolutely right in her analysis of the words “necessary” and “appropriate”—that was precisely what I aimed for in the amendment. This has been an immensely interesting debate and I apologise to the Committee that it has been long-winded. No, it was not long-winded; it has just been long. I have already started to draft amendments for Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

moved Amendment No. 68A:

I shall be extremely brief. The noble Baroness, Lady Hamwee, referred to Amendment No. 70 as being benign; I suggest, for a particular reason, that the intention of the noble Lord, Lord Greaves, to eliminate Clause 15 from the Bill might be described as malign. I regard Clause 15 as the Lord Beaumont of Whitley memorial clause. He was a very distant cousin of mine. I cannot refer to him as either my late noble kinsman or my late noble relative because in my maiden speech I said that that was how I was going to describe my late noble father and my late noble mother. I cannot, therefore, use it for anyone else because I would simply confuse the Hansard writer.

At least once a quarter, Lord Beaumont of Whitley produced a Question on the Floor of the House as to what was going to be done about the 40,000 unadopted roads in the country and it seems to me that it is quite likely their adoption will be accelerated by the amendment rather than the opposite. Therefore, on behalf of my late noble distant collateral, I oppose the noble Lord, Lord Greaves.

This puts me in an awkward position because the noble Lord has drawn our attention to an anomaly in the Bill. I can be as brief on this amendment as I was long-winded on the other one.

I am glad to have some slight confirmation that I have my uses coming to these meetings because sometimes I wonder.

How can anyone dispute that? The anomaly in the Bill has been inherited from the powers of the current bodies, which reinforces the point made earlier by the noble Viscount, Lord Eccles. We consulted on the basis that the HCA would have powers no less wide than those of its predecessor bodies. To secure that, we modelled many of the provisions in the Bill on the legislation that framed the Urban Regeneration Agency, the Commission for the New Towns and the Housing Corporation. The condition to which the amendment refers was modelled on the Leasehold Reform, Housing and Urban Development Act 1993. I agree with the noble Lord that, given the exceptional circumstances under which the designation powers are likely to be considered, Condition 2 seems highly unlikely to ever provide justification for the use of the designation order powers. I agree with the intent behind the amendment. I would like to take the opportunity to consider it further and return to the matter on Report.

I cannot argue with that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 68B to 70 not moved.]

moved Amendment No. 71:

moved Amendment No. 72:

I suggest that the Committee stand adjourned until next Tuesday at 3.30 pm.

The Committee stands adjourned until Tuesday 10 June at 3.30 pm.

The Committee adjourned at 7.30 pm.