Committee (6th Day) (Continued)
136A: Clause 76, page 62, line 38, at end insert—
“( ) by a community organisation operating in the local authority area,”
My Lords, given the comprehensive debate we had before the break, I intend to speak for about 30 seconds. This group of amendments is all about who should be represented on the lists to inform either consent or denial. My amendment addresses itself to the fact that it should be community organisations operating in the local authority area; other amendments have different versions of that. In a way, we just need to listen to what noble Lords have to say and then the Minister can respond. I beg to move.
My Lords, I shall speak to Amendment 136B. There has been much concern that individuals will be allowed to make nominations. The argument is that if an asset is of community value, the nominations should be made by that community group, which has local connections, and not by an individual. This amendment would provide a safeguard against vexatious individuals making nominations, or individuals listing everything they can think of just to be on the safe side. This approach would complement the earlier proposal in Amendment 136ZD, tabled by my noble friend Lord Gardiner, regarding the definition, which would require local authorities to take evidence of community support for a nomination into account. It might be worth defining “voluntary and community bodies” so that it has to be more than 21 people. This is the definition being used for a neighbourhood forum and the principle is the same.
My Lords, I apologise for coming in and out of the debate on Tuesday and missing the key parts of the discussion. I will speak to Amendment 136A. My day on Tuesday was punctuated by meetings about the Olympics and a meeting with a Minister. However, by 11 pm on Tuesday evening I think I had managed to get a good flavour of the debate. I also apologise for being another speaker in the debate who hails from Bradford. I do not know what was being put into the school milk all those years ago up there for so many Bradfordians to be speaking in this Chamber on this subject. I was a milk monitor for a while, but it was not me who put anything in the milk.
More seriously, who decides what land or buildings are included in the list? As I have listened to this debate on the Bill there has often been an assumption that local authorities, be they in Bradford or Tower Hamlets, are in close contact on the ground with local communities, that they know what is going on and that their staff have the entrepreneurial flair and skills to spot a building or land and create an opportunity when they see it. I hear a very different message in some things I have looked at in Bradford and elsewhere. Having had 30 years of experience attempting to negotiate with local authorities, both in east London and up and down this land, I must say that this is not my experience. There is one view looking down the telescope into a local community from the offices of a local authority. There is quite a different view looking up the telescope in east London from one of the poorest housing estates in Britain.
In my experience, often local authorities are actually not in touch with the practical opportunities on the ground presented by land and buildings. Local authority staff, and sometimes the local councillors, do not always possess the skills and mindset to know what to do with these assets, which they view from a fairly traditional public sector point of view. Some local authorities are just not innovators, and some are. Some local authorities resist social entrepreneurs like me who come along and suggest a wholly new approach or point to new opportunities presented by land and buildings that challenge the status quo. Of course, there are some excellent exceptions to this rule.
As the Bill stands, and as the noble Baroness, Lady Thornton has reminded us, the nomination of land or buildings as a community asset can be done only by a parish council, a county council or local authority. This means that, for example, the Bromley-by-Bow Centre in east London—which I founded, and of which I am now the president, so I must declare an interest—could not suggest that any land or building be included in the list. This is ridiculous. The Bromley-by-Bow Centre began 27 years ago as a small charity and has today expanded its operation such that it works closely with local residents across the whole of Poplar and beyond. We have done in practice what many contributors on the Bill have talked about. Today, what began as a small charity runs a three-acre site and has 170 staff. With local people, we have created 37 businesses and social enterprises that operate across Tower Hamlets and beyond. We built the first integrated health centre in the country that is owned by local people through a development trust, and now our doctors and their partners run four health centres in Poplar with responsibility for nearly 40,000 patients.
I also helped found the housing company Poplar HARCA, with which I do some work now and so must also declare that interest. This £300 million company has challenged the traditional logic of the housing association movement and has done a great deal of work to demonstrate how housing associations can use their capital investment in housing to trigger social and economic development with residents in a way that allows local communities to start to think very differently about how we can use both land and buildings in an innovative way. Today, the company has responsibility for nearly 10,000 housing units, operates in Poplar on an area of land that is the same size as the Olympic Park, on the opposite side of the road, and now owns 34 per cent of all the land in the area. This is a resident-led organisation. Today, Poplar HARCA, in partnership with the Bromley-by-Bow Centre and Leaside Regeneration Ltd—another interest that I must declare, as I am a director—has put together a £1 billion regeneration programme, which will have major implications for the area over the next 15 years, both for land and for buildings.
The idea that the Bromley-by-Bow Centre and Poplar HARCA, both of which are charities, should not be able to nominate land and buildings on to the list would be resisted by local residents, who have voted through a democratic process for the housing company. These charities have widespread support and are far more in touch with the opportunities for innovation on the ground than the local authority, even though we work in partnership together. What I am describing in practice is the opportunities that the Bill can present to local social enterprises and their partners if we get the detail right. I am describing what the noble Lord, Lord Jenkin, has rightly described as the wider opportunities with which the logic of this Bill might, if the detail is right, present local communities.
With regard to the fears that the noble Lord, Lord Greaves, expressed on Tuesday about large companies coming into the local area and cutting out local organisations, I understand that fear, but in practice the Bromley-by-Bow Centre has a very successful partnership with the multinational company G4S. Together, we created the first £35 million LIFT company, which has now built 10 health centres in east London. The social enterprise Green Dreams, which was founded at the Bromley-by-Bow Centre, is a landscape business that now has a contract with G4S to work on 26 school sites across Tower Hamlets. Together, social entrepreneurs and a large business are now going for large contracts that are focused on creating local jobs and skills. This has all been done in partnership with local residents. Because G4S as a company has a long-term interest in the area, as does the Bromley-by-Bow Centre, good working relationships exist on the ground. Both partners are of course constantly looking at the opportunities presented by land and buildings.
For those reasons, I suggest that this amendment should be on the face of the Bill. Local community organisations should be able to nominate both land and buildings if going local is to look like this in practice in the future. If such an amendment is not included on the face of the Bill, I fear that some local authorities will not necessarily listen to the pleading of a small but developing local charity or social enterprise that is attempting, as we have done, to grow in capacity. The danger is that the local authority will ride roughshod over the community organisation, and a small flower in a new garden, where a thousand flowers need to be allowed to bloom, will be crushed in the process. Outside this Chamber, a new world is emerging that is challenging both local authorities and the public sector, and that world is made up of organisations that are often deeply committed to the lives of local people. We need to enable this world to grow.
Finally, I must say that, in my experience, we sometimes need the intervention of the Secretary of State—not too often, but occasionally—because, without the intervention of key Ministers of State in the development of the Bromley-by-Bow Centre, we would not be where we are today. Innovation in local communities is difficult to do. I know that—I bear the scars—and sometimes you need friends in high places to help you to break through the local inertia.
This is an important amendment for charities and social enterprises across the country. I suggest that the Government should support it if they truly desire to let a thousand flowers bloom. My colleagues and I would certainly be willing to sit in a room with the Minister and her colleagues to discuss further how we might make this part of the Bill work in practice. I have certainly found my conversations with the Minister on the Bill to date very helpful.
That is presumably why there are refugees in your Lordships' House.
My amendments are designed slightly to strengthen and clarify the position in respect of those who should be included in the list. The first relates to Clause 76(2)(b)(iii), which speaks of “a person specified”. I simply suggest that we make that “person or persons”, because it is clear that an individual is not the only, or indeed the likeliest, source of a nomination. Amendment 136BZB would then add a qualification to make that person or persons,
“resident and eligible to vote in local elections of the relevant authority”.
Again, it is necessary to tie in the individual making a nomination to the local community.
Amendment 136BZC would give “the local authority” the right to make a nomination as well. That seems sensible and should be no problem to the Government.
However, an issue arises in that respect, and in other respects in this part of the Bill, about the definition of a local authority. There is a clause in the Bill which sets out the hierarchy of local authorities, counties and so on. There is also, I believe—I cannot for the moment identify it—a provision in the Bill which requires local authorities to co-operate on issues across the Bill. That leaves the question, with which the Minister might help us, of which authority in a two-tier area has the duty to compile the lists or whether it is both. Both levels of authority might have an interest, or one might have an interest and another not, in the particular function for which a nomination is made. For example, there might be some functions—recreation and so on—where a district councillor would have an interest; there might be others, in the realm, let us say, of social services, where a county authority would be more likely to have an interest. There seems to be nothing in the Bill to dictate, or even indicate, which of the two authorities should make the list, whether there should be a combined list or how it might operate in practice. It would be unfortunate, to pick up the concerns of the noble Lord, Lord True, about the cost, if both authorities were obliged to maintain lists and staff up accordingly.
I do not expect the Minister to be able to deal with these matters immediately, but could they be looked at, clarified and worked through, perhaps in consultation with the Local Government Association? The vague “duty to co-operate”, a phrase to which we will return when we come on to the planning section of the Bill, does not really take us very far.
There is a consistent message here about making sure that local community groups take advantage of the opportunities that the Government have put forward, the emphasis being on “local”. I shall not go into this in great detail, because my noble friend Lady Thornton and my noble Bradfordian friend Lord Mawson have spoken clearly about the importance of making sure that community groups are local.
Perhaps the Minister could comment on how we define that local connection. Does it relate to the electoral register or issues? The question whether local authorities should be included on the list of those who can nominate is also interesting, though that may be covered in Clause 76(3)(b). Again, if the Minister could clarify that, it would be helpful.
The amendment tabled by the noble Lord, Lord Greaves, relating to representation of other groups, specifically people with disabilities, is obviously welcome. However, as community groups represent a number of minority groups, is that not the intention of the whole Bill anyway?
The amendment tabled by the noble Lord, Lord Cotter, on capacity, is interesting in terms of local authorities. There is a slight temptation to say to the Minister that she may want to consider placing a duty on local authorities to provide support to local groups to make sure that they have capacity.
My Lords, my Amendment 139A states:
“In considering whether to accept a community nomination, a local authority must be satisfied that the person or body making the nomination has demonstrated that it has the intention and capacity to be treated as a potential bidder should a relevant disposal be entered into”.
The requirement of intent is important, ensuring that persons or bodies on the list are serious possibilities, thereby avoiding frivolous or vexatious nominations.
I apologise for getting up too early. I had not realised the Front Bench was boxing and coxing and acting as supports as well as leads. We can sort out who is doing what when.
These are interesting amendments. I was very taken by the intervention of the noble Lord, Lord Mawson, on Amendment 136A. That amendment would make eligible a community organisation operating in the local authority area to make a community nomination. We shall put down in regulations who nominations can be made by; that is, any voluntary or community body with a local connection. I shall see that that includes what the noble Lord, Lord Mawson, spoke about, because, if not, we limit what can be done. We shall consider bringing forward an amendment at a later stage if it is necessary.
The duty to co-operate is in the development and planning area. My expectation is that the duty to co-operate would continue to exist between one authority and another if something straddled the two authorities. I am making all this up as I go along, so I may have to come back to it. The communities bidding to put a facility on the list must come from the authority area in which it sits. I cannot see that stretching out unless there were two facilities in different authorities, in which case they might have to put on both.
That is as it stands.
Amendment 136B proposes restricting those who may be specified in regulations as eligible to make community nominations. The majority of responses in the consultation which has just closed agreed with our initial proposal for groups and individuals to be eligible to make nominations. However, a large number of respondents experienced serious concerns about the risk of individuals—a point which has been made again today—and, therefore, we are sympathetic to Amendment 136B. We shall look at that issue further before Report. We will have nearly the whole Bill to come back to on Report.
Amendment 136BZA tends to assume that the term “person” in the Bill refers to an individual and has been brought forward alongside the earlier Amendment 136A. In fact, “person” is a legal term which can refer to either an individual or group of individuals forming an unincorporated body or an incorporated body such as a company. So adding “persons” does not add materially to the scope of the power to make regulations that define who can make community nominations. I shall consider whether it is sufficient for the legislation because sometimes legal definitions are totally misunderstood. It may perhaps be helpful if we consider whether it should be “person” or “persons”.
Amendment 126C would add detail to those who may be specified in regulations as being able to make a community nomination. The noble Lord, Lord Greaves, mentioned two categories: first, those with a particular interest, disability or—the amendment states “advantage”, but I presume it means “disadvantage—and, secondly, people or bodies with a common right to use land because they own or occupy neighbouring property. We do not consider it necessary to specify either category. While we fully intend for the community rights to buy to be inclusive, we do not want to be too prescriptive on the kinds of organisations eligible to list land. It will be a broad list anyway and we would rather not have specific organisations on the face of the Bill.
Amendment 136BZC would add the local authority to the list of those eligible to make community nominations. We are not sure about the local authority being able to make nominations to itself because, effectively, it would have to go through the process and would have to be the promoter, the decision-maker and the final arbiter. We think it is for local community associations to make the bid and not the local authority. The tension we are talking about is better served by the existing provisions in Clause 76(3)(b), which enables regulations to be made that specify that local authorities can list assets on their own initiative, thereby avoiding pointless bureaucracy. So there is a provision there that local authorities can do this but not that they have to go through the nomination process; they can list of their own will. We have already made it clear that we intend to include this in regulations.
Amendment 139A would require a local authority, when considering a community nomination, to assess whether the nominator has the intention and the capacity to be treated as a potential bidder to buy the asset. This would make the consideration of a nomination much more burdensome and bureaucratic—a point which has been heavily laid around us today—for the local authority, requiring it to consider the merits of the nominator in addition to whether or not the asset is of community value. Such a requirement might be more appropriate where a right of first refusal is provided to the nominator subsequently. However, in a situation where the nominator will still need to compete with other potential buyers to take on the asset, such a requirement is, in our view, disproportionate because if they cannot raise the money and they have not got the financial security, they are not going to be able to bid.
With those explanations, I hope the noble Baroness will withdraw the amendment.
I declare my interest as both chair of the Rural Coalition and chair of the National Housing Federation. I do not think the latter is particularly relevant, but it might be.
Having listened to the Minister’s response, I have a niggling concern that the Government are creating a vastly overcomplicated system for doing something very simple. Individuals and organisations in a local community ought to be able to nominate and there should be a simple process for then deciding whether it is appropriate. I am not clear why there have to be decisions by any bodies about who those nominators are. If they are local individuals or organisations, surely they should be able to put forward a nomination. If we turn it round the other way, I am not clear about who we are trying to rule out. If they are in, or active in, the community, who are we saying should not be able to put a nomination forward? If there is not an obvious group of individuals who should be excluded—and I cannot think of any—why do we have to have a decision-taking process at the local level on who should or should not be able to make such nominations? Complexity is the last thing we need because it does not empower communities. Arguments about whether or not a nomination has been made by a relevant local individual, group of individuals or organisation misses the point; the arguments should be about whether it is a suitable nomination in the first place.
My Lords, the decision by the local authority would probably have to be made on only a very few occasions because it will be blindingly obvious whether or not an organisation is a community association under the terms of the Bill. It is just possible that there might be a body which no one has any idea about; a body which might have been suddenly thrown together and claims that it comes from the local community but does not, will fall outside the parameters of the Bill and it is reasonable that the local authority should be able to say, “I am sorry, you do not fulfil the requirements” and be able to turn it down. It is expected that any body which is understood to be a community body or people of the local community will find themselves nominating quite happily.
I still find think this is overcomplex. At the point at which an organisation has nominated something within the community for this purpose, is it really worth having an argument about whether it is a community organisation or a part of the community? Would it not be easier to say whether or not it was a suitable asset? That process would surely trump any issues about who is eligible to nominate it provided that they can show they have a community connection.
My Lords, we are not trying to make this overcomplicated. I am trying to simplify the local authority’s role in identifying a community body. One is trying to rule out a very large body which does not have any particular community interest but would like the asset, coming in through the back door and the local authority being unable to stop it. That is how the Bill stands. I hear what the noble Lord says.
Amendment 136A withdrawn.
Amendments 136B to 136CA not moved.
Clause 76 agreed.
Clause 77 : Procedure on community nominations
Amendments 136CB to 136CD not moved.
137: Clause 77, page 63, line 15, leave out “must” and insert “may”
My Lords, in moving Amendment 137 I shall also speak to Amendment 138. These amendments would allow a local authority to decide for itself what assets should, or should not be, included in that authority’s register of assets. Surely this is what localism is about: allowing decisions that affect the community to be taken by that community rather than being dictated to by central government. I cannot see much localism if a local authority “must” include an asset, as defined by the Secretary of State. Would it not be more in keeping with the sentiments of the Bill to allow local authorities to decide themselves what is best for their local communities? It might well be that, for reasons peculiar to that area, a slightly different consideration is more appropriate for what asset needs to be included on the register. By setting the parameters, the Secretary of State can prevent abuse by local authorities, while the discretion that these amendments provide would allow for a modest amount of flexibility to suit local circumstances. Decisions taken locally is what this Bill is meant to be about. I look forward to hearing what the Minister has to say about this. I beg to move.
I have just a very short point to make about the noble Lord’s amendment. One would think that it would be better to be clear about what a local authority must do rather than introduce further doubts or a lack of clarity. That has already been debated considerably today. It goes back to supporting the Government’s intention to have clarity about what must be done rather than leaving any vague options open for the possibility of any misinterpretations. It would be good if the Minister could address that issue.
My Lords, it is the Government’s intention to set out a definition of an asset of community value in regulations that will require local authorities to judge whether an asset meets that definition in particular local circumstances. It seems right that there should be some pretty clear idea of what we are talking about and what is justified.
If the local authority decides that an asset meets the definition and it was proposed by a community nomination, it is required to list. There is a “must”; it must do that, if it fulfils the ambition of the legislation. I hear what my noble friend says about leaving it to the local authority to decide what is a community asset and what is not, in its terms, but if we get it right in regulations, there should be no doubt as to what it can list and what it cannot. To leave it without the definition in the Bill would create much more room for uncertainty for both the community groups and property owners and reduce the transparency of the process.
Amendment 138 would amend subsequent wording in line with the change proposed by Amendment 137. We do not accept the amendments that my noble friend has proposed, because we think that on this matter the local authority needs to have pretty well defined parameters.
I understand the point made by my noble friend the Minister, but I have some sympathy with the amendment, for reasons that she will understand from my previous interventions. I do not think that this is easy, and I look forward with interest, as many other noble Lords in this Committee will, to seeing the regulations and the guidance that her department will produce. The Minister was very receptive to that point when it was made by noble Lords two days ago and today. There are circumstances in which a local authority, using its reasonable discretion, could cut short a bureaucratic process that is pre-eminently likely to end in the rejection of a nomination. I really do not see why, taking its local circumstances into account, a local authority should not be given slightly greater freedom than is presently suggested in the Bill. I understand my noble friend’s argument and that of my noble friend Lord Howard, but in many ways I slightly move towards my noble friend Lord Howard’s because I hope that some degree of latitude and discretion will be allowed.
The Minister said, “If we get it right for the whole country”. If it were possible for whatever is decided in Westminster to be absolutely correct from Land’s End to John O’Groats, my admiration would be endless and unlimited. The whole point of the Localism Bill is that central government cannot get it right for everyone all the time and that therefore there must be some discretion locally to make things work for each area as it thinks best. Having said that, I can see that the Minister does not want to move on this, so I beg leave to withdraw the amendment.
Amendment 137 withdrawn.
Amendment 138 not moved.
139: Clause 77, page 63, line 23, leave out subsection (6)
My Lords, this group of amendments seeks to remove the requirement for a local authority to give reasons for not including an asset, which has been nominated for inclusion, on its register of community assets. As has been said by my noble friend Lord True and the noble Lord, Lord Greaves, at a time when officers in local authorities are being stretched to their limits in trying to reduce their authority’s expenditure in line with the Government’s requirements, it is perverse to burden them further. Having to do the work required of them by this Bill is bad enough; if local authorities then always have to justify declining to include an asset, that must inevitably lead to a very strong bias towards officers including assets on the register in order to avoid the extra work that would be involved in justifying a refusal.
I realise, and I know from personal experience, that officers in local authorities have the highest integrity, but there would nevertheless be a strong temptation automatically to include certainly all marginal nominations and probably a number of others. Aside from the unfairness of creating this bias, ultimately it will lead to more arguments and more appeals that will, in turn, lead to much greater expense for the public purse—a worry that already concerns those of your Lordships connected with local authorities.
Over 60 per cent of referrals to the Standards Board were malicious. I should declare an interest in having been a victim of just such an accusation. There will inevitably be a number of malicious nominations for inclusion on a register of community assets. It will be time-consuming and difficult to have continually to be giving reasons for refusing this kind of nomination. Not having to justify refusal will in no way prejudice the ability of genuine community assets to get on to the register, but it will ensure a fairer consideration of what is appropriate and proper to be included on it. I beg to move.
My Lords, again, I have some sympathy for my noble friend’s arguments. Any noble Lord who has seen, for example, the papers for a meeting of a licensing committee, with hundreds of voluminous pages of submissions and comments, or who reflects on the fact that I tried to draw to your Lordships’ attention earlier—that the process of a decision on whether an item should be listed is ultimately subject to appeal, as is the matter of consultation—will realise that, inevitably, however light touch it is intended to be in the first place, the process is likely to generate a large amount of natural paperwork.
I also submit that as a strong supporter of committee action, as I hope I will reveal when we discuss neighbourhood planning, I believe that those who wish to propose that a property should be listed should be prepared to take the trouble to attend a meeting and argue their case. There is a high risk that in a process that ultimately becomes subject to a test at law, whether by judicial review or by whatever other process is envisaged under the Bill, these matters will not be able to be decided by officers setting out a letter saying, “Sorry, chaps: we’ve decided we’re not going ahead with this one”. There will have to be paperwork and a process. Adding a further burden on local authorities to send out individual written notices to every body or individual who suggests that an item be listed may be extremely burdensome, in administrative terms. My noble friend Lord Howard of Rising might not have the right mechanism in what he seeks to excise from the Bill but he touches on what is, potentially, a very important matter.
I will be very brief. The noble Lord, Lord True, has touched upon some of the key issues and the noble Lord, Lord Howard, raises some important points. As this is a localism Bill, it should be left to local authorities in local areas to determine this, but we have an issue about the need for transparency. If a community or others go to the trouble of listing or raising issues, they need a clear and transparent response. Some balance has to be struck between reducing the bureaucracy and, perhaps, issues in regulations that allow local authorities to take the actions they want to. However, we certainly say that they should give reasons that should be clear for anyone who has gone to the trouble of putting in a bid of any kind.
I agree with the noble Lord’s point on transparency. My point is simply that, given the potential legal implications here, the process would have to be transparent in the way that a licensing process ultimately is. It would therefore be a matter of public record, properly minuted and so forth, so that setting up a separate process by legislation seems otiose.
My Lords, five of these amendments look to remove the requirements on the local authority to give reasons for its decisions in connection with the scheme, whether in favour or against. On those five amendments, Clause 77 provides that where a community nomination is unsuccessful the local authority must enter the land on the unsuccessful nominations list and give the nominator written reasons for the decision. Amendment 139 would remove that requirement of giving reasons to the nominator.
Clause 78 deals with notices about the lists. Amendment 140 would remove the requirement for the local authority to give reasons in its notice for removal of land from the list of assets of community value. Amendment 141 to Clause 79, which gives a landowner a right to review of the decision to list, would mean that the local authority would not have to give the owner the reasons for the decision it has taken following the review.
Amendment 141A also concerns the right to review in Clause 79. At present, if the local authority decides on a review to remove the land from the list of assets of community value, it must give a written copy of the reasons for the review decision to the person or body whose community nomination had previously been accepted. Amendment 141A would remove this requirement. Clause 80 concerns a list of unsuccessful nominations. Amendment 142 would remove from this clause the requirement for the local authority to include in the entry the reasons for not putting the land on the list of assets of community value.
These amendments would all remove an essential guarantee of transparency from the scheme. We of course expect local authorities to behave reasonably and tell a community organisation why its nomination was refused, or why an asset had been removed from the list. We would also expect them to tell an owner who had asked for a review of the decision on listing the reason for the decision. These are basic provisions that we consider essential for all community groups and landowners to be able to expect in every case if these measures are to be effective in giving communities real power. That is why we think it is important that these requirements are set out clearly in the Bill, and stay there.
Amendment 141B concerns what should be included in the procedural regulations for the review of listing. This also relates to Clause 79. At present, the Bill sets out matters which the Secretary of State or Welsh Ministers may include in these procedural regulations. The amendment would mean that these matters must be included in the regulations. This appears to take a contradictory approach to that taken in the previous amendments, as there is a request for prescription of the process but no intention to tell the owner or the nominator of the outcome. In every case it is the Government’s intention to make procedural regulations and to ensure that they contain those details that are necessary for the effective operation of the scheme.
Finally, Amendment 140A appears to be seeking to amend Clause 79, so that where an owner requests a review of the decision to list, the time limit, if any, set for the owner to make this request is not as provided in regulations. We believe that this would be unhelpful to owners of listed land as it would create uncertainty as to how quickly they should act, and would again reduce the level of transparency. I hope that, with that explanation, the noble Lord will be happy to withdraw the amendment.
I cannot say that the explanation thrills me. What is proposed will create an immense amount of work and a very strong bias to go in a certain direction. Existing freedom of information legislation would enable the transparency to be maintained. I do not suppose that there will be any assistance from the Government in funding this work or, indeed, in creating the lists in the first place. It would be nice if the Government would consider removing this provision, thereby reducing the amount of work that will be necessary for overstretched local authorities to carry out. I might want to return to this subject later. Meanwhile, I beg leave to withdraw the amendment.
Amendment 139 withdrawn.
Amendment 139A not moved.
Clause 77 agreed.
Clause 78 : Notice of inclusion or removal
Amendment 140 not moved.
Clause 78 agreed.
Clause 79 : Review of decision to include land in list
Amendments 140A to 141B not moved.
Clause 79 agreed.
Clause 80 : List of land nominated by unsuccessful community nominations
Amendment 142 not moved.
Clause 80 agreed.
Clause 81 agreed.
Clause 82 : Moratorium
142A: Clause 82, page 66, line 11, at beginning insert “A person who is”
My Lords, this group comprises various minor and technical government amendments to improve the working of the community right-to-buy provisions. Before I go through each amendment, I wish to give a short introduction on them.
Clause 82 contains key details for giving communities the chance to bid for listed land. There are four broad aspects to consider: first, who has to do what to initiate the windows of opportunity; secondly, the identification of certain types of disposals which will be exempt from complying with the rules at all; thirdly, disposals which can be permitted within the full moratorium period; and, fourthly, the lengths of the interim and full moratorium periods—that is, the windows and the protected period.
We are concerned not to interfere with property transactions where the objectives of the policy will not be compromised. I can assure noble Lords that we intend to make provision for a range of types of disposal to be exempt from compliance with the rules. These include, as I indicated on Tuesday, transfers made by inheritance, gifts, transfers between family members and between partners in the same firm, or between trustees of a single trust. We are also very aware of the concerns of landowners who willingly make land or buildings available for some form of community use. They are worried that this benevolence will risk their property being listed as a result and that, if they wished to dispose of a larger site including the listed asset, they would have to delay the disposal.
There are two aspects to this. The first is the extent to which it will be appropriate for the local authority to consider occasional or periodic use of a particular site as meeting the definition of an asset of community value. There is a large difference between the use of a field once a year as a car park for the annual village fete and the licensing or leasing of a barn to a local group to run a playgroup. We will give further thought as to how to make it clearer when such use should be sufficient to justify listing.
The second aspect is whether the listing of a small site—say, part of a field or a single building on an estate—should be allowed to disrupt the sale of a whole legal estate of which the site is just a small part. There is a question of proportion here that is of particular relevance in the case of privately owned property, and we need to give further thought to that. As I have previously indicated, I am taking this issue back for reconsideration and we will discuss it with noble Lords. I hope to have a solution for Report.
A further area for possible exemption that has been raised through the consultation and in amendments before the House is the disposal of going-concern businesses. Again, we have some sympathy with this concern because we do not wish unnecessarily to disrupt a thriving business, such as a village shop or pub, by delaying its sale. That could relate to a sale for the same use, whereby a pub transfers to another owner who will use it for the same purpose. We wish to consider that issue further and will come back on it at a later stage.
We are also keen to ensure that where there is a community interest group with a strong interest in a particular asset and the capacity to pay an acceptable price for it, the owner should have the option to dispose of the asset to that group without waiting until the end of the window to do so. This would, for instance, allow local authorities to make asset transfers to community interest groups without being restricted by the windows. We therefore intend to make provision for this in regulations as a right of first offer.
In considering the length of the various windows, we have taken careful account of the responses to the consultation and of the need to balance community benefit and the rights of property owners. In the consultation, a broad consensus of 71 per cent of respondents were in favour of an interim window of six weeks, and 67 per cent were in favour of a protected period of 18 months. We believe that these are the right periods. Opinion was much more divided on the length of the full window. A majority of 55 per cent of respondents favoured a window of six months, as opposed to 40 per cent who favoured three months. We are minded to make the full moratorium a period of six months. This would include the interim six-week period; in other words, the window would last for four and a half months after the interim period. A body of experience suggested that a window of less than six months could undermine the benefits of the policy to community interest groups. We considered that communities would thereby be given the time and the best opportunity to succeed.
We also accept that there is a case for providing greater certainty by considering whether to add the respective periods to the Bill. On the other hand, we are also aware that this would limit the opportunity to review the periods in the light of experience, once the scheme is in operation. We will therefore be listening to the debate and will come back to that matter at Report.
I shall address directly the Government’s amendments to Clauses 82, 83 and 85 and the proposed new clauses to follow Clauses 84 and 87. All these are technical amendments that are intended to prove how the provisions will work in practice.
The introduction in Amendment 147F of a new clause to follow Clause 87 is proposed in response to questions raised in Commons Committee about how sites which are split between two or more local authorities would be dealt with. The new clause would require local authorities to co-operate when making all decisions on a site located in more than one local authority area. That does not undermine what I said earlier to the noble Lord, Lord Beecham.
Amendments 142A and 143ZB to 143ZD—the two sets of amendments to Clause 82—and the proposed new clause to follow Clause 84 contained in Amendment 147D are both about the operation of the moratorium. They ensure that the local authority is informed of a community interest group's intention to be treated as a bidder to buy the land, and require the local authority to inform the owner of a listed asset as soon as practicable that it has received such a request from a community interest group.
Our second amendment to Clause 82, Amendment 143ZB, ensures that it will not be possible for a new owner to get the benefit of the protected period relating to the owner from whom the land was bought. That ensures that the moratorium conditions apply afresh to a new owner if they wish to sell. The amendments proposed to Clause 83, Amendment 147B and 147C, remove the surrender of the lease as a relevant disposal for the purposes of the community right-to-buy scheme. In practice, it is often difficult to decide whether a surrender of a lease has taken place; surrenders are often determined only retrospectively in the courts. Removing the surrender of a lease from the definition of a relevant disposal avoids those difficulties in the very small number of cases where surrender may occur.
I have three short questions on Clause 83. The noble Baroness may not be able to answer them immediately; if not, perhaps she will write to me. First, for the purposes of subsection (2), could a charge on a property be regarded as a disposal if the property is then vacant? The second question arises under subsection (6) in respect of the qualifying leaseholders’ state, which would have to have at least 25 years to run. It strikes me that someone might grant a lease for less than that, which would take it outside the parameters of the clause, with an option for the tenant to renew it which could effectively carry it beyond 25 years. Had that been a straightforward grant, it would be within the framework. Does that need to be considered? Finally, subsection (7) gives the appropriate authority the right to amend the clause by order. As in previous debates, I would like confirmation that that would be subject to an affirmative order, as it deals with personal property rights, rather than a negative resolution.
The Minister has not yet moved the amendment.
My Lords, I have nearly finished. I apologise that I have been rather long. In fact, I have only another two lines to read.
The proposed amendment to Clause 85, Amendment 147E, would enable the regulations to include an appeal against compensation decisions under the community right-to-buy scheme. The amendment will strengthen the protection for property owners affected by the scheme. I beg to move.
My question on Clause 83 has turned into a short supplementary to the questions asked by the noble Lord, Lord Beecham. The Minister has told us that the order-making power in Clause 83(7) will be used to deal with matters of inheritance and partnership. Can she give the Committee an assurance—I am sure she can—that the order-making power will not be used to alter the principal definitions of relevant disposal, which are already contained in the Bill? As subsection (7) is set out, it could, on the face of it, actually change the 25-year term or the definition of disposal in Clause 83(2). Those are quite fundamental points.
My Lords, I welcome much that the noble Baroness said about the Government’s willingness to look at the particular circumstances that may arise, for example, in the sale of going concerns and where the community asset is a small part of a larger concern. These issues have certainly raised great concerns, and I would like to add another.
I am not sure that I need to declare an interest but I shall do so just in case. I chair the eco-town strategic partnership in the St Austell area, a wide area of mining land which was mined formerly by English China Clays and more recently by Imerys. Over many years the policy of past and present mining companies in the china clay area has been to open large areas of land to community access, but always with the proviso that it might be worked in future. That is not a bad example of the concern that I want to put to the Minister about the deterrent effect that this policy—a policy which, broadly, I very much support—could have on landowners of that sort in opening up land to community use, whether for walking, riding, cycling and so on, if it were severely to limit their ability to sell and dispose of the land as part of the operation of their business. My fear is that, as things stand, it will simply freeze in aspic the current position on community access as people would be able to argue that access already exists and to list it. Equally, in terms of new community access, it is in the nature of mining land that the areas which may be accessed by the public will change over time depending on where the workings are and where land restoration has taken place following tipping. I can see this creating a substantial block to opening up land for future community use. The same may well apply to the farmer who very willingly allowed a corner of his land to be used by the cricket club. That usage now exists and a listing could be applied for. It could also create a substantial deterrent to any landowner opening up land for such use in future.
I am very much in favour of the idea that we should register assets of community value—which clearly applies to things like village shops, community halls and so on—but I am concerned about how to ensure that the creation of new community resources is not blocked by the fear that these elements will be applied.
I have one more question; I should already know the answer to it, and no doubt there is an answer. What is the position when the sale of land options—which are usually bought because planning permissions might be granted—in practice trumps these proposals to register community assets? I wonder whether the purchase of an option in any sense triggers this process.
My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lords, Lord Beecham and Lord Taylor, for their interventions. The noble Lord, Lord Beecham, had three questions. I have the answer to two of the questions but cannot remember the other one. Would he like to ask me again, if he can remember it? If he cannot then that is fine. Perhaps we should both read Hansard. I apologise—I was getting so excited about the orders that I forgot about the next bit.
The noble Lord, Lord Beecham, asked about the 25-year period. The land will qualify only if the lease is granted for 25 years, rather than having 25 years left to run at the time of disposal. If it is granted for less than 25 years and is therefore subject to renewal, I suspect that it will not qualify, because the lease will have to be for 25-plus years.
I understand that and am grateful to the noble Baroness. That of course means that there is a way out for an owner. My first question was whether, assuming that the property was vacant, a legal charge would constitute a disposal. The Minister may need some legal advice about that, as indeed I may do too.
If noble Lords know the answer to that, I shall be extremely grateful. I shall have to write to the noble Lord on that as I do not have a response.
Any orders will be affirmative, and that is also my answer to the noble Baroness, Lady Hamwee. Under the Bill, the need to change will stay unamended. It is fair to say that at some stage there might be a requirement to change the definition. If that is the case, again it will be done through an affirmative order.
The noble Lord, Lord Taylor, has produced the sort of conundrum that we had over private land where a small piece is taken out or is open to community use. I suspect that mining land is not part of the Bill, although I shall have to write to the noble Lord. However, if it is, I accept that what he said is very similar to what was said about the problems of small bits of land being used, through benevolence, for cricket pitches. I shall come back to that with an answer before the next stage.
Amendment 142A agreed.
143: Clause 82, page 66, line 13, leave out “C” and insert “D”
My Lords, I listened very carefully to what my noble friend said in her introductory remarks to this set of amendments. I do not think that she has shot my fox but she has probably hit it. Nevertheless, I should like to press on. I think that what she was saying—and she is sympathetic to not interfering with commercial transactions—is at the root of what I am seeking to achieve with this amendment. At the same time, the amendment addresses some of the issues raised this morning by the noble Lord, Lord Cameron of Dillington, in our Clause 74 stand part debate, as well as the issues that have arisen in prior debates on the difference between a service and a piece of property and on how a “going concern” works in relation to assets of community value.
Amendment 143 is an introductory amendment that seeks to add a further requirement where the moratorium takes effect. That relates to Condition D in my Amendment 144, which would permit disposals unless,
“the business is at risk of closure … the business is closed … the business is subject to an application for change of use”,
“the building is subject to a demolition order”—
the sorts of issues that came up in our earlier debates. In other words, where the business is at risk, the community has some reason to interfere. However, where there is a going concern and the service will continue to be provided or the business will continue, it is not clear why there needs to be any interference with normal commercial development and commercial enterprise. That takes us back to the balance between the right to enjoy one’s private property and the rights of those in the locality. Of course, this will apply to pubs probably more—I shall say a few words about that in a minute—but it will also apply to anywhere where an entry fee is charged and anywhere run as a commercial enterprise. It will include farm shops, rural zoos, gardens and parks. Therefore, it is important, in that it could cover a wide range of commercial assets that are owned by individuals.
On the specifics of the pub trade, pubs are sold in blocks and there can be between three or four or 200 or 300 in a single block. Why is that? It is nothing very unusual or surprising. It is perhaps because an individual has run a pub successfully and would like to buy two or three more and wishes to do so in a particular area because geographical proximity improves managerial control. It may be that a specific pub operator is overrepresented in one geographical area and underrepresented in another and, therefore, both wish to rebalance their portfolios.
Then there is the question of different companies viewing different sectors of the pub trade as offering particularly attractive opportunities. Those noble Lords who read the Financial Times will have seen in today's copy a long article on the decline of what is known as the wet-led trade; that is what is called the spit-and-sawdust boozers, where there is just drink and not much of a food offering. Beside those sorts of pubs, which have been under considerable strain, there are obviously town bars, village pubs, housing estate pubs and trunk-road pubs, with hotels attached such as Travelodge and Premier Inn, which do not provide food, so the pub does. Increasingly now, there are also retail park pubs.
I would argue that, provided that the pub, business or service is to continue, there is no need for the community to be involved. If it is going to be closed and it falls into one of the categories that I have listed in my Amendment 144 then there would need to be a locus for the community and I could understand why the community might wish to get involved. I would say caveat emptor—pub companies do not close pubs that are very successful, they close them because they are failing. It is not an idyll, rural or urban. In this country 30,000 of the 60,000 pubs are individually owned. They are free houses, and there are 30,000 small businesses struggling to make a living.
Perhaps I may be permitted a brief rant. Governments of all persuasions talk about the importance of the pub trade as a centre where community activity can be developed and a community feeling can be expressed. That is all very well until you come to the legislation, which continually hammers pub operators, big and small, with legislative procedures and processes. You have only to look at the amendments that we shall be discussing on the Police Reform and Social Responsibility Bill to see how many of those will land quite heavily on small pubs and small pub operators.
There are the competitive pressures. The fact is that, so far, nothing has been done about supermarket pricing. On their way home tonight noble Lords can buy a pint of lager in their local supermarket for 60p a pint, but they will have to pay £2.80 in their local pub. In the supermarket it is sold at or below cost—probably below cost— before a bank holiday weekend.
Inevitably young people will buy a slab—as they call it—in the supermarket and sit in the village square or the street drinking the cans, which they may then drop on the ground while vaguely insulting the passers-by; and at about 8.30 pm they will go into the pub to watch the football and have a couple more pints. They may then be sick outside the pub, and the pub will get blamed for the disorder caused.
There is a lot in this trade which is not as easy as it looks. There are the societal pressures of people staying home, as well as the rapid societal and economic changes in our towns. A simple example is that 15 years ago, the company with which I am involved had 20 pubs in Kidderminster, the home of the UK carpet trade, and today there are three. The carpet trade has gone, so the pubs have gone. The rapid changes in our society have left pubs of all types and sizes beached.
The noble Lord, Lord Cameron, referred to the Pub is the Hub scheme. It is an excellent idea and a brilliant concept. However, its case studies emphasise very strongly the need, for example, for obtaining sound professional advice on running a pub as soon as possible, and include comments to the effect that running a pub is more complex than was anticipated, no one should underestimate what is involved in running a successful pub, running a pub via a committee is challenging, and so on. While we talk about the need, even where a pub has closed, to safeguard the rights of the community—I quite understand that—it is important that people are realistic about what can be achieved with these assets. They have not got into the state they are in merely because they have been neglected, but most often because they are in a declining or difficult section of the trade or of their particular geographical location.
That is the end of my rant. The purpose of the amendment is to urge the Government to consider carefully the exclusion from the provisions of arm's-length commercial transactions. If there is going to be a change of the sort listed in my amendment—a closure or a change of use—of course the community should get involved: it has every right to. Otherwise, we are in danger of impeding normal commercial transactions of varying sorts concerning various sorts of assets, which cannot be in the interests of the vibrancy of our local communities. I beg to move.
My Lords, I will speak to Amendment 143ZA. There is an overall concern that the Bill is sometimes aimed at property rather than at the services provided. Surely it is vital for our local communities that there is a good provision for local needs. It is fair to say that in this country—many noble Lords have spoken about this—too often, for various reasons, local shops and services have been lost. I cast my mind back—I thought it was 10 years ago, I have now written “20 years” but actually it was 25 years ago—to when I was a councillor. I thought it was not that long ago. Supported by local people, I managed to get our local council to realise that a local parade of shops was at risk of being turned into a parade of building societies and offices. Fortunately, we were successful in getting the matter addressed at that time.
Under the Bill, if a business intends to sell, say, a community shop as a community shop, that will be welcome, and would be welcomed by local people. The amendment inserts,
“unless the relevant disposal will be the sale of the land privately to another business for the same use as when it was listed as an asset of community value”.
My Lords, I will speak to Amendment 144A in my name and that of my noble friend Lord Cathcart. The intention is to set out explicitly some types of disposals of land that should be exempted from the moratorium rules and that would therefore not require notification to the local authority. I am very aware of many discussions that noble Lords have had about seeking a positive result from what we do. I hope that the amendment will produce some harmony, because there are legitimate concerns from owners of private property.
New paragraph (a) proposed in Amendment 144A would exempt from the moratorium disposal of a listed asset where the asset forms part of a larger site that is held as a single legal estate. The intention is to avoid delaying the sale of a larger piece of land or an estate if one small part of it has been listed as an asset of community value. New paragraph (b) would exempt other types of disposals of land, such as bona fide gifts following a philanthropic donation, transfers between members of the same family, made as either a gift or a sale, land passed on by inheritance, transfers between associated companies or companies in the same group, and transfers between trustees or partners in a firm. Indeed, there may be other exemptions that other noble Lords are more aware of. The intention of this amendment is to avoid any disruption to internal transfers between business partners and trustees. It would not interfere with the rights of landowners to pass their land on to future generations.
I start by reiterating that I hope it is clear that we on these Benches very much want to see the Government achieve their aspirations in these provisions. However, Amendment 144A in particular illustrates the danger we are getting into of making this very complicated and bureaucratic. For example, there is a proposition that transfers between companies in the same group should not be a relevant disposal. Let us reflect on how you would cast that provision. There are plenty of differing definitions of groups of companies around. If we think one step beyond that, what happens if you sell the shares of a company that owns the asset, but not the asset itself? If that company were not only to have the asset but another asset, for example, the group of pubs mentioned by the noble Lord, Lord Hodgson, where does that leave you? We ought to be focusing on something that is deliverable, even if at the edges it is a bit rough and not technically watertight. It offends me as an accountant to suggest that, but this group of amendments and the issues that were raised in respect of the previous amendment illustrate the complexity that we are in danger of building into this provision which could undermine it completely.
What the noble Lord, Lord McKenzie, has just said highlights the fact that we are trying to talk about exclusions from something that would cover a potentially vast range of circumstances. I support the thrust of what he said. We need to reverse that so that we catch the transactions that need to be caught because in the global family and order of property transactions that could potentially be caught, the class of transaction that we are trying to catch is very small. The problem is the lack of definition, and therefore the clause has to be all-encompassing, and it sweeps up all these other things that other noble Lords have referred to. I think of situations where there might be transfers of assets one way or another between parish and rural community councils or between community groups of whatever form and structure. What about transfers of assets between various tiers of authorities? Are all these to be caught up? It seems to me that we are almost at the point of needing a category of owner that gets caught by the Bill, but I am not going to suggest that because I think there might be a simpler way of dealing with it, as the noble Lord, Lord McKenzie, suggested. However, there is a relatively narrow class of circumstances, and it all boils down to the fact that we have these open-ended definitions. I plead with the Minister to find some way of rendering this down so that we can get to the nub of the issue and not have a one-line provision and then 1,000 lines of exclusions and caveats and things to try to exclude all the bits that have got caught up and should not be in there in the first place.
My Lords, we keep coming back to the same issue. I take the point that we probably need to look at the narrowing of the classification but by doing that we will still have to look at what would not be caught, which is what these amendments address. I heard the rant by my noble friend Lord Hodgson and I do not suppose for a moment that he expects me to say anything other than that we have heard what he said. I will deal with all the points raised but I should like to say from the outset that we are quite sympathetic to looking at this again.
On the government amendments, I have already said that we are sympathetic to the intention of Amendment 144A. We understand the concerns of some rural landowners who are already making their land available for periodic community use. It is certainly not our intention to discourage them from doing so. Where a listed asset forms part of a larger piece of land, we recognise that to delay the sale of the whole estate would in most cases be completely disproportionate. I am happy to confirm for the noble Lord that we will have a look at this, which complies with my previous commitment.
As set out in our consultation document, which I am sure everyone has read from cover to cover, we intend to exempt a range of different types of disposals that do not impinge on the intended aim of a policy. We have already indicated our intention to exempt disposals of land due to inheritance and gifts, and transfers between family members, in light of responsible consultations. I think that that encompassed everything put forward by the noble Lord, Lord Gardiner. But in hoping that we have a little time before the Recess and Report stage to discuss these issues, I am happy to say that we will reconsider or consider those with him and other noble Lords concerned.
Amendments 143, 143ZA and 144 would exempt the disposal of business-to-business transactions where there was no risk to the continuation of the business. Earlier, I mentioned that we understood that the use of a power might stay as the use of a power but if it was sold between two companies we would not expect that to be caught up in the community asset ability to buy.
However, we are slightly afraid that the amendments could have some unintended consequences and would create more confusion than clarity, which a number of noble Lords seem to think this is anyway. We are not sure what the terms “risk of closure” and “business” mean. We are prepared to look at these again and discuss them with noble Lords to see whether we can avoid any further unintended consequences that would impact on the aim of the policy. I hope that the noble Lord will withdraw his amendment.
My Lords, I am grateful to my noble friend for those answers and for her sympathetic ear to these probing amendments. Amendment 144 is focused on business-to-business transactions. I entirely accept that the phrase “risk of closure” would not commit itself to parliamentary draftsmen but I have never known any Back-Bench Members who have ever committed themselves to parliamentary draftsmen because they always want to take it away and tidy it up. As regards the point made by the noble Lord, Lord Cameron, the time to act is before the closure takes place but, once the closure has happened the business, or service, may well be doomed or its risk of failure much increased.
I am grateful to my noble friend for her positive response and look forward to returning to this matter later when we have some further thinking from the Government. In the mean time, I beg leave to withdraw the amendment.
Amendment 143 withdrawn.
Amendment 143ZA not moved.
Amendments 143ZB to 143ZD
143ZB: Clause 82, page 66, line 14, leave out “the owner” and insert “that particular person”
143ZC: Clause 82, page 66, line 14, leave out “the owner’s” and insert “that person’s”
143ZD: Clause 82, page 66, line 17, leave out “or the owner”
Amendments 143ZB to 143ZD agreed.
143A: Clause 82, page 66, line 20, at end insert—
“( ) where the owner is a public body, any community interest group or groups which meet the requirements of subsection (3)(a) have been provided with the option of first refusal to purchase the asset, with regulations for this purpose specified by the appropriate authority, or”
My Lords, I shall speak also to Amendment 147A. I realise that we are moving to a sensitive part of the Bill about which noble Lords have already expressed various anxieties.
There are two things that I should like to raise at this time. I understand that the Government propose that a community group should have the first right of refusal not within the moratorium period but, rather, at the end of it when the community group would compete against others on the open market. That presents a real difficulty. We all want to avoid the bureaucracy that has been a big problem in Scotland. On the other hand, we do not want to find ourselves in a position where the new community right leads to a widespread loss of assets of community value. It is a question of balance that we need to explore.
For the assets of community value in public hands, I suggest that there should be a first right of refusal for community groups. I think we all believe that it is a reasonable presumption that, where assets of community value are already being applied for public benefit, the default position should be to retain that public benefit. Only if there is no community purchaser should the asset then go on the open market. Therefore, the first right of refusal in such a case would require the introduction of mechanisms. Based on experience to date, it is possible for local authorities, with support from the Asset Transfer Unit, to devise a sensible low-cost system to agree a sale price, decide between competing community bids if applicable and establish fair arbitration mechanisms.
For assets of community value in private hands, I think everybody accepts that the right of first refusal might not be the best way forward. Again, we do not want to go down the road that has been followed in Scotland. The desire to safeguard private interests, which we have already discussed, is already resulting in a level of procedure and regulation that could stifle community efforts in some cases. That is what leads us to the idea of a simple system in which a moratorium at least provides a window for any community group to prepare a bid, rather than any complex process that will tie the community up in red tape.
That brings me to the second amendment in this group, which deals with the moratorium period. I am not alone in suggesting that the period should be a minimum of six months, which could be extended if necessary. Our experience and that of community groups across the country is that even the most capable and well established community organisations certainly need more than three months to get themselves up to speed. It often takes from six months to a year to progress to the point of purchase. Therefore, we need to find a mechanism that means, when there is willingness on all sides, the process will not be stymied by a moratorium period that has a cut-off point. Instead, if there is agreement to proceed, the moratorium period should be flexible enough to allow that to happen. I beg to move.
I shall speak specifically to Amendment 147A. I notice that the noble Baroness, Lady Eaton, has now joined us in the Chamber. I assure noble Lords that the Bradfordians are not pulling the wagons around in this debate.
Six months seems to be a reasonable period. We live in a very bureaucratic world. If you are a small charity or a social enterprise, without all the back-up of a local authority to get your ducks in a row and achieve the necessary permission, it can take at least six months to move forward with land or buildings. One property that my colleagues and I have been working on with a very competent group of people has taken at least two years to get through planning and to reach a point where we can do the development. That is with even the support of local neighbours and a lot of people behind us. Six months is a reasonable period; all my experience tells me that it is about right.
The noble Lord, Lord Rogers of Riverside, who has great experience in this field, is no longer here but I know he would tell us that nowadays it takes a mini-miracle to build a building or get a development going. It is very difficult to get projects off the ground. We wonder sometimes why we are not hitting the housing targets. It is because, as the noble Lord, Lord Hodgson, reminds us, there is so much red tape and treacle that you have to swim through to make any of this work.
The real test for the Bill will be whether it will be easier for those of us who develop land and buildings, whether we are business or social entrepreneurs, to do so. Will this legislation make it easier for us to do this work, or harder? This is the real practical challenge for this piece of legislation.
My Lords, Amendment 145 seeks to place a time limit on how long a community interest group is given to purchase a community asset. Again, this amendment was tabled before the Minister deposited her paper in the Library. Having read her paper and seen that she is minded to have a window of six months, I imagine she will be falling over herself to accept this amendment.
I spoke earlier about the importance of excluding measures from the Bill that might affect the value of property. As I mentioned then, the erosion of property value is far more important to the less well-off, for whom such an asset might be all they have in the world. Uncertainty over the length of time an asset must be held while local interest groups find the necessary cash to make the purchase would very seriously damage the value of any asset. Banks and financial institutions will not lend if the sale of the asset concerned could be delayed for an unknown period. Having a fixed term in the Bill would give the measure of certainty that is needed to enable banks, mortgage companies and other financial institutions to provide the funding for the sale and purchase of the sort of asset that the Bill is aimed at.
It is no help that the time available can be altered by regulation by the Secretary of State. The Minister, when responding to my Amendment 134 earlier, commented that regulation would come before Parliament, but in practical terms this is a formality. In no way does it have the strength of having to introduce primary legislation. Who knows what some future Secretary of State might decide is an appropriate length of time? I have the utmost confidence in my right honourable friend the present Secretary of State not to do something unreasonable, but he will not be in that position for ever and it is important that the Bill does all it can to avoid creating doubts over the value of assets included in the register.
Mortgages and other forms of long-term finance usually extend over the life of more than one Government. The protection given by having a maximum period of six months for a community interest group to raise finance is essential if property values are not to be badly damaged by unreasonably hampering the ability of owners to sell their possessions. There is an argument that the Human Rights Act would prevent a community interest group having an unreasonable length of time to find funding, but this would in no way be an adequate substitute for including a time limit in the Bill. I recall that it has been Conservative Party policy to abolish the Human Rights Act.
Yes, that is precisely what I am suggesting. There would be nothing to prevent a local interest group starting long before an asset came on sale. We should also remember that assets of the nature we are talking about usually come up for sale only because the local population, or community, has not been using them. As someone who has subsidised his local shop for the past 30 years, I can tell you that there is a frightful squeal if people think that it will close, but while it is open they all go off to Tesco or Rainbow or wherever and never use the shop, so my sympathies are rather more limited.
I think that six months is a perfectly adequate amount of time for people to put together such a bid, bearing in mind that they could start long beforehand. In my view, it would be perfectly adequate to allow three months, which I hope is the time limit that will appear in the regulations. My amendment mentions six months as a maximum only so as to give the Secretary of State room for manoeuvre. I might also say that, whatever period of time is chosen, the point that people would feel rotten if they missed the target by two days would still apply. If we made it 20 years, people would still say, “Oh, how terrible, if it was 20 years and two days”, so that is not an argument.
My Lords, my Amendments 146 and 147 in this group have been slightly overtaken by the paper that my noble friend has put in the Library, by her opening remarks today and, indeed, by the remarks of other noble Lords during the preceding debate. I am aware that the timescales for the moratorium are controversial, and I quite understand the point made by the noble Baroness, Lady Thornton, about the difficulty of getting together local initiatives and getting them to the financing stage.
The simple purpose of Amendment 146 is to encourage the Government to put on the face of the Bill the moratorium periods for the interim window of opportunity, the full window of opportunity and the protected period. As a result, Amendment 147 would remove from the Bill the power to change this by regulation. I seek to do that really for the reasons given by my noble friend Lord Howard of Rising. I think that this issue is sufficiently important and goes sufficiently deep into our culture and into the structure of our society that these periods should not be able to be altered by means of a statutory instrument, which I think Members on all sides of the House would agree do not get quite the scrutiny that they often deserve, in the sense that voting down a statutory instrument is always a nuclear deterrent and so is a very rare thing indeed.
As a matter of principle, there is a strong reason for having the time periods on the face of the Bill, although I am less concerned about what those time periods are. As my noble friend Lord Howard has said, most communities will know that something is happening and, therefore, they will not start de novo from the day that a decision is announced; they will know that the particular service or shop or whatever is in trouble and, therefore, will be able to begin to get their act together. However, there is clearly a difficulty or problem or issue with timing, to which the noble Lord, Lord Mawson, referred. I am just concerned that we have clarity about the timings on the face of the Bill, which should not be capable of being altered for better or for worse—for longer or for shorter—by a future Government.
My Lords, I will speak briefly in support of Amendments 143A and 147A.
As noble Lords have heard, the first of these amendments concerns the conditions by which an owner of a listed community asset can dispose of that asset. For example, Amendment 143A would ensure that,
“where the owner is a public body, any relevant community interest group or groups … have been provided with the option of first refusal”.
This additional protection would make sure that the priorities of local communities come above those of the landowner. That has to be a good principle to support in a Bill that seeks to make local communities the prime driver in considerations about the use, sale and disposal of community assets. I shall not repeat the arguments already succinctly made by my noble friend Lady Thornton, but I hope that the Minister will give this matter serious consideration.
Amendment 147A is different from the others in this group, but they are all concerned with the appropriate time that any moratorium should be in place. Amendment 147A would ensure that the prescribed period for any full moratorium should not be less than six months. This is another important protection, especially for community and voluntary groups, which may need more time to respond to any bid and to take advantage of the provision for community assets in the Bill, as the noble Lord, Lord Mawson, said.
However, I understand the concern raised by the amendment of the noble Lord, Lord Howard; that is, that the prescribed period should not be more than six months as it is reasonable for there to be some time limit to the process. At the same time, I believe that the specification of a minimum time is equally important and I hope that the Minster will accept it.
My Lords, we are continuing to cover ground that we have largely covered previously, but in the interests of clarity I am quite happy to go over it again. As the noble Lord, Lord Hodgson, said, we have looked at this matter, but it is important that we return to it in light of these amendments.
In considering the length of the various windows, we have taken account of responses to consultation and of the need to balance community benefit with the rights of property owners. The consultation demonstrated a broad consensus in favour of an interim window of six weeks to allow a community association to decide whether it is able to put its name forward for a bid, and a protected period of 18 months. We believe that these are the right periods.
Opinion was more divided on the length of the full window, though a majority favoured a window of a maximum of six months as opposed to 40 per cent of respondents who favoured three months; that is, less rather than more. We are minded to accept six months, as I have already said.
Amendments 145, 146, 147 and 147A propose a range of lengths—in some cases, a maximum or minimum—but all agree on the importance of providing some certainty by including reference to the chosen lengths in the Bill. We have also noted the recommendation of the Delegated Powers and Regulatory Reform Committee that, if the moratorium lengths were to be set in regulations, the first exercise of the power should be subject to affirmative procedure. I also heard what my noble friends said about having assurance in the Bill. We accept that there is a case for providing greater clarity. I shall therefore come back to this matter on Report having consulted with the Welsh Government and otherwise as necessary.
We oppose Amendment 143A, which would give a right of first refusal to community interest groups where the owner of the asset concerned was a public body. The noble Baroness, Lady Thornton, introduced the amendment very persuasively, as she always does, but the amendment would mean that the existing government proposal would apply only to assets with private owners, including the voluntary sector.
The two schemes would need to be run in parallel, imposing greater costs and making the system more confusing for those trying to use it. Powers already exist under general disposal consent for local authorities to transfer assets to community ownership at less than the best consideration to further local social, economic and environmental well-being. We think that that would satisfy the noble Baroness’s problems.
We already intend to provide in regulation for both public and private owners to be able to sell their asset to a community group while the window of the opportunity is in operation. If there was a willing buyer and a willing seller, they could just get on with it. This would give community groups advantage over other purchasers, who would have to wait until the end of the moratorium period for a decision to be made. With those confirmatory explanations—because I think that I have given them previously—I ask noble Lords not to press their amendments.
Am I right in thinking that during the six-month period there is a moratorium on disposal but not on putting property or land on the market? The land could be marketed during those six months and, presumably, if it was a competitive market, the resultant price would be the price that the community group would have to cough up if it wanted to buy it.
My Lords, the noble Lord, Lord Greaves, is correct. The moratorium does not prevent property being put up for sale or marketed. All it does is to prevent the sale taking place before the community group has had an opportunity to consider whether it can match or beat what has been brought forward.
I thank the Minister again for repeating what she has now said three times. Indeed, I believe she gave the answer to the question of the noble Lord, Lord Greaves, late on Tuesday evening.
I am quite pleased. I think we have made some progress and I beg leave to withdraw the amendment.
Amendment 143A withdrawn.
Amendments 144 to 147A not moved.
Clause 82, as amended, agreed.
Clause 83 : Meaning of “relevant disposal” etc in section 82
Amendments 147B and 147C
147B: Clause 83, page 67, line 7, leave out “, assignment or surrender” and insert “or assignment”
147C: Clause 83, page 67, line 8, leave out “, assignment or surrender” and insert “or assignment”
Amendments 147B and 147C agreed.
Clause 83, as amended, agreed.
Clause 84 agreed.
147D: After Clause 84, insert the following new Clause—
“Informing owner of request to be treated as bidder
(1) Subsection (2) applies if—
(a) after a local authority has received notice under section 82(2) in respect of land included in the authority’s list of assets of community value, and(b) before the end of the interim moratorium period that applies under section 82 as a result of the notice, the authority receives from a community interest group a written request (however expressed) for the group to be treated as a potential bidder in relation to the land.(2) The authority must, as soon after receiving the request as is practicable, either pass on the request to the owner of the land or inform the owner of the details of the request.
(3) In this section “community interest group” means a person who is a community interest group for the purposes of section 82(3) as a result of regulations made under section 82(6) by the appropriate authority.”
Amendment 147D agreed.
147DA: After Clause 84, insert the following new Clause—
“Local authority additional powers for assets of community value
(1) A local authority may acquire and make fit for community use any land that is included in the authority’s list of assets of community value.
(2) An acquisition under subsection (1) may be by compulsory purchase if authorised by the Secretary of State.
(3) Any land acquired under subsection (1) or any interest in it less than that acquired may be sold or let to a community interest group or to a person representative of the group.
(4) A sale or letting under subsection (3) may, subject to appropriate restrictions of use and further disposal, be at less than the full market value.
(5) A local authority may contribute the whole or part of any expenditure that is incurred by or on behalf of a community interest group in the acquisition, improvement or maintenance of a community asset subject to appropriate conditions.”
My Lords, I have tabled the amendment in order to discuss the role of local authorities and other public bodies—but particularly the role of local authorities—in assisting with community purchases as a result of this legislation. The amendment states that the local authority may acquire and make fit for community use any property which is the subject of these proposals; that an acquisition could be by a compulsory purchase order, with the approval of the Secretary of State in the usual way; and that the local authority could sell or let a property or a business to a community interest group, and could do so by not charging the full market value—in other words, by subsidising the purchase or the maintenance of the community asset. I think the definition of a local authority should include a parish, although I have not included it.
I am not suggesting that this proposal should lead to a large-scale acquisition by local authorities of new community assets. Given the present financial circumstances of local authorities, that is unlikely to happen anyway in most places. However, this will change. In the very nature of things there is a cycle, which many of us have seen more than once, in which local authorities, for various reasons, are more flush with money at one time than they are at others for this kind of purpose. However, being practical, in many areas the only way in which the purchase or the running of community assets that are being disposed of is going to work is through some kind of subsidy from the local authority. It may be from some other public body but it is most likely to be from the local authority. In many areas, it simply will not happen and simply will not work unless that happens.
The subsidy might be relatively modest or it might be quite substantial—or it might be a big subsidy to purchase the asset and then no subsidy, or a small one, towards the maintenance of it, or the other way round. It all depends on the circumstances. But in practice, unless there is an active interventionist policy by local authorities in areas that are not as prosperous as a few places appear to be, it is simply not going to happen. It may happen on a small scale. The noble Lord, Lord Patel of Bradford, said earlier that communities can raise money. I agree with him. They can. But very often they will raise money as targets and as matching funding as against other grants, and so on. Therefore, it seems to me that local authorities ought to have those powers.
I may be told that, at least in the areas that do not involve subsidising a purchase or passing it on at a lower price than cost, the local authority has these powers anyway—and if they have not, they will have them under the general power of competence, and therefore this amendment is not needed. A short debate is needed on the role of local authorities in this matter and the absolutely central role that they will have to have if this is going to work in a lot of areas, and certainly the areas that I am familiar with. I beg to move.
My Lords, we appreciate the intention of this amendment and agree that local authorities have an important role in assisting community interest groups to take on assets of community value. Indeed, the Secretary of State has announced a social responsibility deal for councils, asking them to give greater support to voluntary and community groups. However, that does not need new powers; they already exist. Therefore, this amendment is not necessary.
Local authorities already have wide powers to acquire land by compulsory purchase—for instance, to secure the proper planning of their area and grant public access to land for recreation. In June, we published revised guidance to local authorities to take seriously all viable requests from voluntary community groups put to them for the compulsory purchase of a threatened community asset. But community purchase is not a step to be taken lightly, and the local authority has to demonstrate a compelling case in the public interest that outweighs the private interests of the current owners.
The amendment goes further to suggest that local authorities be given the power to sell the acquired site to a community interest group. Local authorities already have extensive powers to dispose of land, including under the general disposal consent the power to sell land at less than market value, if it is for the social, economic and environmental benefit of the community. We therefore ask that the amendment be withdrawn as it is not necessary.
I am grateful to the Minister for saying what I thought she would say—but it is important to have it on the record in relation to the system or scheme that is proposed. One problem with compulsory purchase is making the case that the interests of the wider community outweigh those of the individual who owns the property in the first place. When you have community facilities that are not being put on the market and whose owners are closing them down and refusing to consider transferring them, or are putting them on the market deliberately to be bought by people who are not going to use them for community purposes, an interventionist role for local authorities may be necessary in some cases. I am grateful for what the Minister said and beg leave to withdraw the amendment.
Amendment 147DA withdrawn.
Clause 85 : Compensation
147DB: Clause 85, page 67, line 34, leave out “may” and insert “must”
My Lords, the Minister and I have previously exchanged amicable words about the question of compensation and it is clear that the Government have an intention to bring forward regulations. However, the Bill does not strictly require that. The purpose of this amendment is to reverse the onus. In a previous amendment the noble Lord, Lord Howard, who is not now in his place, wished to transfer “must” to “may”. In this clause, I want to do it the other way round and substitute “must” for “may”. The intention being what it is, I cannot see any difficulty in the Minister accepting this.
There are legitimate concerns, some of which we have heard today and previously, about the position of owners in relation to the possible losses that they might incur as a result of the processes created by the Bill. There is the question of delay, the loss of a potential purchaser and so on, and perhaps other expenses involved in contesting the situation. I appreciate that time is still running on this, but it would have been helpful to have had draft regulations. I hope that by the time we get to Report, there will be draft regulations because we need to be in a position to assure landowners, business owners and so on that there will be a proper scheme for compensation and a suitable method to adjudicate the amount in the event of a dispute. That is the purpose of my second amendment, Amendment 147EA, which would refer any contested issue to the district auditor—I beg your pardon, not the district auditor but the district valuer—as would be the case in relation to a compulsory purchase, with which this is an analogous situation.
As it is, the clause indicates that the regulations which might be made under it will deal with a range of matters with the widest possible discretion for the Secretary of State on compensation—the amount, who is to be entitled to it and so on—and, indeed, on the review of decisions made under the regulations. It would help the passage of the Bill and help reassure people with an interest if, by the time we get to Report, at least draft regulations could be tabled and discussed. In the mean time, perhaps some comfort could be given by going beyond the expressed intention of declaring that regulations will be made to accepting this amendment, which would require regulations to be made to deal with these matters. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Beecham, for raising this matter. I referred to it in earlier remarks and I will not repeat what I said, but it would be extremely helpful for the Committee to see this, given the far-reaching potential range of the regulations—who is to pay, who is to be entitled, what it should be in respect of, the amount, the procedure, appeals and so on. That is not only from the point of view of the potential effect on landowners but, as I argued earlier, from that of local authorities. I would not expect my noble friend to answer this now.
I have now found the financial memorandum to the Bill—it is indeed £21 million which is suggested as the total cost to local authorities—where we are told that funding for these new burdens will be provided through the Secretary of State. I wonder whether that is the case. When the regulations are produced, I wonder whether my noble friend could give some estimate of what she thinks the total cost of compensation levied on local authorities might be, assuming that it is levied on local authorities. From the financial memorandum, it may be that the Secretary of State is going to produce the money. That is not clear to me but perhaps those things could be clarified when the note for which the noble Lord, Lord Beecham, has asked is laid before the House.
My Lords, the question of regulations is not going to be in my hands. I will make sure that the request that they should be available is passed on but it is not up to me, I am afraid, to make sure that they are. I assure noble Lords that we recognise the importance of offering compensation and have said that in the consultation document.
Through the consultation we sought views on the detail of the scheme—for instance, who should be entitled to compensation, what costs could be compensated and how claims should be dealt with. The noble Lord, Lord True, asked about those matters. We are therefore sympathetic to the spirit of Amendment 147DB, but believe that it is unnecessary as we have already indicated our commitment to establishing a compensation scheme and will be making regulations to do so. I will try to ensure that we at least have sight of those.
Amendment 147EA is also not necessary because we are proposing a government amendment to add to Clause 85 the power to give a right of appeal. That would be done through regulations. This will be an additional power to give landowners the right to request an internal review by the local authority of its decision on compensation.
We consider that the proposed introduction of an external right of appeal will be more suitable than the proposal in Amendment 147EA to have the appeal referred to the district auditor, by which we presume is meant an independent auditor appointed by the Audit Commission. Their role is to check the financial—
My Lords, I apologise, the noble Lord did correct himself. However, we still believe that we have a better route than the noble Lord. We do not think that the district valuer would have a role in this. As I say, we think that that provision would be unnecessary in view of the legislation that we will be introducing.
My Lords, we will have to see what happens as regards the draft regulations. I cannot say that I am persuaded by the argument that the district valuer is not the appropriate person to deal with these matters. However, we shall see precisely what the Government have in place when somebody else provides the noble Baroness with the ammunition. I hope that by Report we can have a clearer picture and possibly reach an agreement. If not, it may be a matter on which we shall have to take the opinion of the House. In the mean time, I beg leave to withdraw the amendment.
Amendment 147DB withdrawn.
147E: Clause 85, page 68, line 9, at end insert—
“(vii) appeals against decisions made under the regulations.”
Amendment 147E agreed.
Amendment 147EA not moved.
Clause 85, as amended, agreed.
Clauses 86 and 87 agreed.
147F: After Clause 87, insert the following new Clause—
If different parts of any land are in different local authority areas, the local authorities concerned must co-operate with each other in carrying out functions under this Chapter in relation to the land or any part of it.”
Amendment 147F agreed.
Clauses 88 to 90 agreed.
Clause 91 : Meaning of “local authority”
147FZA: Clause 91, page 70, leave out lines 14 to 22 and insert—
“(a) a London borough,(b) a metropolitan district,(c) a unitary council,(d) a county council, or(e) by agreement between a county council and one or more of its constituent district councils, a district council.”
My Lords, this amendment reverts to the issue that I raised previously about districts within counties and who is to be the appropriate authority. It suggests a framework whereby there may be a shared interest that might be disposed of between the two tiers within county areas. I am not asking for a decision on that today but perhaps it is something that we might look at. The views of the Local Government Association might be taken on how best to deal with these matters. I suspect there may well be cases where at county level there is an interest—at district level, possibly not—and it would be invidious if there was a refusal by a district council when the county council might wish to accede to a request. It is worth exploring that grey area further. If the noble Baroness will indicate that discussions can take place, I would be very happy. I beg to move.
My Lords, I have tabled Amendments 147FA and 147FB in this group. I do not wish to pursue the technicalities of what they say but they are a means of probing the role of national park authorities in all this—whether the proposed system would be any different in national parks, and whether the special nature of national parks might mean that the system will have to be tweaked or be quite different in those areas. I shall be interested in what the Minister says.
In relation to the amendment of the noble Lord, Lord Beecham, and with my district council hat on, I have to say that if this job is to be done—and, as I have already demonstrated, I am sceptical about whether it will have any real value—this really is a matter of local knowledge. Whether a particular pub in a remote area in the Forest of Bowland is an appropriate community asset to be stuck onto this register, or whether it is the kind of pub that the noble Lord, Lord Hodgson, was talking about—which is nothing to do with the local community—are local judgments. I cannot see the county barons who sit in their fastness in county hall having much of an idea about it. If they were to set up a system, they would have to decentralise it and set up systems at local and district levels. If county council functions can be operated at those levels, they should be operated by district councils. That seems to be common sense, but we discussed that earlier.
Would the noble Lord concede that in children’s or adult services there might be a need and a demand for buildings or other facilities to be made available whereby the actual funding and support would probably come from the county council, rather than the district, and that there would be no need for the county to be involved? That is the sort of issue that I suggested we needed to discuss. Given the costs of all this, might not some very small district councils find it difficult to operate this scheme? Is there not a case for flexibility here between the two levels—obviously while promoting co-operation between them—in the interests of the community that we would all seek to be fulfilled?
My Lords, the last point might apply in some places. If it does, the basic power should rest with the district council, and if there is to be an agreement, it should be devolved upwards from the district to the county, rather than the other way round, which the noble Lord’s amendment suggests.
His other point about children’s services or other care services may be valid, but it is clearly different from funding a service—for example, totally or partly funding a voluntary or community-based service—where funding might well come from the county council. However, as to the question of who maintains the asset register, which is the narrow point we are talking about, it seems to me that if this job is to be done it ought to be done by the more competent people who, in this case, are probably the more local people.
While I am on my feet, I think that I need to declare another interest, given that I am talking again about councils. I am informed that in this past week I have been added to the long list of vice-presidents of the Local Government Association. I am not sure that it was the thing that I most wanted in life, but if it is an honour, it is an honour. I am sure that it is nothing like as big an honour as being a freeman of the Royal Borough of Kensington and Chelsea, but we all pick up these crumbs where we can. So I declare that interest.
I would like to replace the Secretary of State, but I do not think that there is much possibility of that happening. I do not know whether I would do a better job, but I might have better ideas—in some areas. I had better be careful what I say or the Whips will be after me again. We have been talking about Bradfordians a lot. There are about half a dozen Bradfordians in the Committee. The Secretary of State pretends to be a Bradfordian, but he is not really, he comes from the posh part of Keighley.
The noble Lord, Lord Beecham, has twice raised an interesting point about county councils having care homes within a district and whether they should be involved. Could not the county council nominate that asset as an asset of community value? Then it would be registered with the district and, if something happened to it, the county council could make an offer to bid, or whatever it wanted to do. Would that not be the answer?
My Lords, that was an amusing exchange. I look forward to seeing the noble Lord, Lord Greaves, taking over as Secretary of State, although I do not think that the Secretary of State would appreciate that. This exchange is about matters which I have answered briefly, although, I appreciate, not in detail.
We believe that it is important that we clearly set out who should run the community right to buy. Clause 91 defines what we mean by local authority and who will be responsible for administering the provisions. It makes sense that a decision on listing is made directly by the local democratic authority, rather than any other. For that reason, we have chosen to give powers to specified local authorities to run the scheme.
Where there is more than one local authority in an area, we have decided that, in most cases, implementation of the scheme should be by the local authority with the relevant planning powers. That would mean that, in two-tier areas, the running of the scheme would fall to the district council. However, in the case of the national parks and the Broads Authority, which have planning powers for the area but are not elected authorities, we have left administration of the scheme with the local authority as having democratic accountability. We would expect the local authority to liaise with the local national park or the Broads Authority where appropriate. We also consider it important to retain the Secretary of State's power by order, if necessary, to amend the definition of local authority in the light of experience. Amendment 147A would remove that power, so we resist it.
Amendments 147FA and 147FB would give powers to a national park authority and the Broads Authority to make decisions on what is listed and to run the scheme. National parks and the Broads Authority have members appointed by the local authorities, but they are not themselves democratically accountable local authorities, so they would fall outside the scope of the definition of local authority.
Amendment 147FZA would replace the current list in Clause 91 of what counts as a local authority for the new list. Some items are the same, but the proposed new list would allow a county council in a two-tier area to take responsibility for administering the scheme by agreement with the district council or councils. That would remove the important link between these provisions and the planning authority. The new list also omits the Common Council—the City of London—and the Council of the Islands of Scilly and deletes the Secretary of State’s power to amend the list later for England, although not the power of Welsh Ministers to do the same in Wales. For the reasons I have given, I cannot accept the amendments, and I hope that noble Lords will feel able not to press them.
Amendment 147FZA withdrawn.
Amendments 147FA and 147FB not moved.
Clause 91 agreed.
Clauses 92 and 93 agreed.
147FC: Before Clause 94, insert the following new Clause—
“The purpose of planning
Before section 1 of the Planning and Compulsory Purchase Act 2004 insert—“A1 Purpose of planning
(1) The purpose of the planning system is to achieve sustainable development. (2) Any person exercising functions and duties under the planning Acts must do so with the objective of furthering the achievement of sustainable development and shall have regard in doing so to any guidance given for that purpose by the Secretary of State.A2 Interpretation
In this Act—
(a) “sustainable development” means development that meets the social, economic and environmental needs of the present without compromising the ability of future generations to meet their own needs and includes the application of the following principles—(i) living within environmental limits,(ii) ensuring a strong, healthy and just society;(iii) achieving a sustainable economy;(iv) promoting good governance;(v) using sound science responsibly;(b) “the planning Acts” include—(i) the Localism Act 2011;(ii) the Planning Act 2008;(iii) the Planning and Energy Act 2008;(iv) the Planning and Compulsory Purchase Act 2004;(v) the Town and Country Planning Act 1990;(vi) the Planning (Listed Buildings and Conservation Areas) Act 1990;(vii) the Planning (Hazardous Substances) Act 1990; and(viii) the Planning (Consequential Provisions) Act 1990.”
My Lords, I shall speak also to Amendments 147FD to 147FF, which are grouped. We had a good debate at the very beginning of Committee about sustainable development. We are now back to where many people may think that we ought to be, which is planning and the planning system. This is a serious attempt to strengthen the commitment to sustainable development in the planning system at all levels and to probe the definition of sustainable development and whether we can get a definition in the Bill, which some of us have tried with quite a number of Bills over the years. This is turning out perhaps to be one of the really important flashpoints as far as this Bill is concerned—certainly one of the key issues that is facing your Lordships as it goes through this Committee and then through the House. I do not think this discussion today will be the last we see of it.
The amendments do several things. The first amendment, as set out, is headed, “The purpose of planning” and states very clearly:
“The purpose of the planning system is to achieve sustainable development”.
It does that by amending the Planning and Compulsory Purchase Act 2004. Then it defines sustainable development as set out in one of the traditional definitions. One of the purposes of tabling these amendments is to probe whether the Government will tell us any more about whether they are trying to or intend to change that definition, and in what way. They may tell us to wait for the draft of the national planning policy framework, which we are promised we will have before Report. However, these are matters where we are going to continue prodding.
The second amendment changes the sustainable development duty under the same Act to make it stronger and absolutely clear that the duty would be to “further” sustainable development, rather than “contribute to” it, as it is currently set out in the Act. Noble Lords who were around when we discussed that Act will remember we had a lot of discussion about that and tried to get it changed to “further” sustainable development; we tried again in 2008 with the Marine and Coastal Access Bill as it went through the House and we are trying again now. At the moment the Act says there is a duty to contribute to sustainable development. These amendments increase the numbers of specific instances where that has to happen and list all the main planning legislation over the years—this Bill, the Planning Act 2008, the Planning and Energy Act 2008, the 2004 Act and the parent Act, the Town and Country Planning Act 1990. They also add specific duties in relation to neighbourhood development plans, development control, local development orders and the neighbourhood development orders that are being introduced by this Bill and by the community right-to-build orders. I think we will come back to those as there are some amendments from the noble Lord, Lord McKenzie, when we actually get to discussing neighbourhood development orders and so on, which try to make it specific in those cases, again with the same definition.
The third amendment amends the Planning Act 2008 in a similar way. All these amendments change “contributing to” sustainable development to the much stronger “furthering” sustainable development. The final amendment is about sustainability appraisals in the Planning and Compulsory Purchase Act 2004 and the preparation of local development documents, which go into what people have got used to calling the local development framework since the 2004 Act and which the present Government are encouraging us to call the local plan again, which seems to be a better way to describe it. If we never have to talk about local development frameworks again, I would be very happy, and we can talk about the local plan, of which by and large people have some understanding.
Section 19(2) of the Planning and Compulsory Purchase Act says:
“In preparing a local development document the local planning authority must have regard to”,
and we want to add,
“the findings of the sustainability appraisal required under subsection (5).
We also want to add that the local planning authority must,
“proceed with the proposals in each development plan document only if it considers that the results of the appraisal indicate that it is appropriate to do so”.
In other words, there has to be a very clear and overt sustainable development check on each of the documents. Furthermore, the question of whether the authority has complied with that duty is a central part of the independent examination.
This issue has become rather topical. An article in the Times purported to leak the draft national planning policy framework. I have no idea whether it was accurate. When I have asked people about it, they have said, “Don’t believe everything you read in the papers”, to which I have responded that it has been a very long time since I stopped believing everything I read in the papers. Nevertheless, the matter is topical. It is being discussed partly because of the conflicting messages that have come from different members of the Government at different times.
There are two main issues that, at the very least, we have to get to the bottom of, understand and, I hope, get an acceptable resolution to before the Bill leaves this House. First, will the Government at long last be persuaded to put sustainable development, as well as a definition of it, firmly in the Bill, and what will that definition be? People who, like me, have been arguing for a firm definition all these years might not be very pleased if the Government say, “Yes, we’ll put it in”, and then we do not like the definition. Perhaps that would be even worse.
Secondly, will it be the traditional kind of statement that balances sustainable economic development, sustainable environmental development and sustainable social development, and what will the balance be, or will there be a very different presumption for development, which might be called sustainable development but is basically economic sustainability? If there is an environmental or social spin-off, that is fine, but at the core will be economic growth. It would be foolish for any of us to be against economic growth but that clearly has to be balanced with environmental and social improvements. One might say that there needs to be economic growth, environmental growth and social growth.
It is easy to pigeonhole this issue as a simple choice between pure economic growth and a more balanced sustainable approach. However, it is not quite as simple as that because individual decisions have to be made which tilt the balance one way or another. What matters are the overall mix and the overall result. Nevertheless, are we looking for pure economic growth as sustainability or for a synthesis and a balance of economic growth, social progress and environmental sustainability and improvement? I have said that about three times in different ways but it seems to be absolutely fundamental to where we are going with the Bill.
We are not going to resolve this matter today—not least because we are not going to get the draft national planning policy framework. We have had a semi-unofficial version of it but none of us quite understands whether it is right or not. We have articles in the Times saying that the Government are going to unleash massive building all over the green belt and that the five-year supply of housing is going to be the only thing that matters in local plans. This is probably an exaggeration, at the very least. Nevertheless it is very worrying. If a positive planning system—that is the wording in the draft NPPF, which we will see when we get it—is to be brought in, it will mean that the Government expect the planning system to encourage growth proactively to meet the needs of business. If that is predominantly what it says, then that is a very substantial shift and one that, at the very least, this House will want to scrutinise very closely and about which it might be very concerned. I beg to move.
My Lords, I have read these new clauses with some interest. I am not sure that they could sensibly form part of the Bill, but they provide a useful vehicle for debate. When will we get the national planning policy framework? It was foreshadowed in a very positive and, to my mind, very welcome Statement made by my right honourable friend the Planning Minister, Mr Greg Clark, on 15 June. It addresses many of the questions which the noble Lord, Lord Greaves, has been speaking about.
What attracts me is the presumption in favour of sustainable development, which is right, but the default position will be that an application should be accepted, subject to the important environmental safeguards that one would need to have for such important features as the green belt, national parks and so on. This is quite different from what has grown up over the years. It was already apparent when I was in charge of the planning system, which was several decades ago, when there almost seemed to be a presumption that it should not be allowed. If we can change the balance, that would be right.
We are facing a period of need for more jobs and more homes, which may well require development to go ahead. For too long we have been prisoners of the nimby phenomenon and people making enough fuss to stop something happening. I remember being told by one of my very senior officials, “Just watch it, the man who starts as the champion of new homes and eventually finds himself the owner of the last home in a new development, immediately signs up to become the secretary of the local preservation society”. That is nimbyism. I was also told of another phenomenon, note—not over there either. Of course, it is summed up in the well-known expression banana—build nothing anywhere near anybody. These are public attitudes which are deeply ingrained and, in the past, they have tended to colour the way in which the planning system works.
As I said, we need more jobs and we certainly need more homes. A planning policy that is worth the paper it is written on must have that very firmly in mind. I hope that, when we get the national planning policy framework, it will be made very clear. Having said that, I repeat the question: when will we get it? Will we have it in time for the Report stage of the Bill? It is rather like Hamlet without the Prince of Denmark; we do not yet know what will be in it. Like my noble friend Lord Greaves, I do not believe the press on such matters. They have not seen the draft but they think they have; they have seen something. I await the genuine document. Please may we have it fairly soon?
My Lords, I support the amendments in this group. I put my name to them but was too late to get on the Marshalled List. I support them not because they are necessarily the right amendments—as the noble Lord, Lord Jenkin, said, the wording could be different—but because I believe strongly in the principles of sustainable development. In the old days it was called “stewardship”. Probably the most important thing that we can do in our short stay on this planet is to leave it in as good a condition as it was when we arrived—or, one hopes, better.
The great thing about the principles of sustainable development is that they can cater for short-term needs such as today's economic recession, but also ensure that the best solutions will look after today's and tomorrow's needs of people, of the countryside and of the environment that surrounds us all. We must plan—as most farmers farm—as though we are going to live for ever.
We can be justifiably proud of the planning system in England. I say “England” because it is the fifth most densely populated country in the world, yet we still have some of the most sensational countryside in the world, including our national parks, our AONBs and our coast. Who has not revelled in the TV programme of that name? Even some of our ordinary, unremarked villages, dales and copses are an integral part of our historical culture. We must not damage them.
Bill Bryson once wrote a foreword to a booklet on the English countryside. I know that because I wrote a co-foreword to the booklet. Noble Lords can imagine which foreword was the most readable. In his, he said that one of the unique features of the British countryside was that it was almost certainly the most loved countryside on earth. I believe he is right. Therefore, politically this clause has huge support from the vast percentage of our population, including most business leaders. The clause is in no way anti-business and anti-development. It merely incorporates a different way of thinking about progress.
The other reason I support the principles behind the amendment is that it would give certainty to all sides involved in the planning system and would endure. I spoke at Second Reading, and will do so again in Committee, about the necessity for a framework of rules to underpin our planning system and make it effective so that everyone will know where they stand. There is no doubt that the existence of a clause such as this would be a central pillar of such a framework.
What would happen if a local development framework or a neighbourhood plan—or even a strategic impact assessment, if I have my way later—is not ready on time or is not renewed when it should be? The existence of a clause such as this could be an important safety net. Its principles could be a satisfactory guide for the planners of the day and it would provide a framework within which we would all understand the principles on which our planning system operates, in the absence of a detailed local context. Therefore, I urge the Government to accept this or some other similar proposal.
My Lords, I am very happy to support the amendment and to follow the noble Lord in much of what he said. Amendment 147FC is very important. I feel a bit like a sinner saved, because I remember the many arguments that I marshalled in relation to the 2008 Act about why it was very difficult to put such a clause in the Bill. I hold my hand up and say that it is absolutely right that we do so in this Bill and make it good.
It is very timely to start with a positive definition of the purpose of planning. Planning gets a bad press. It is misunderstood, and most of the time people come across the planning system because it stops them doing things—or they assume that it will. A positive definition stating that its purpose is to achieve sustainable development is very important now.
Perhaps the Minister will say that the amendment is not needed and ask what other purpose planning could have. However, it is because the purpose of planning is obscure that we need a definition. We need it precisely because of the limitations on the definition of sustainability that the Government offer in their presumption in favour of sustainable development. We need a consistent definition that does not retreat from the Brundtland definition, and I believe it is time that we had a legal definition in the Bill that reads across to other legislation.
The noble Lord, Lord Jenkin, has already referred to the pressures in the system. There is pressure on land, the greatest non-renewable resource we have, for housing, employment, green space, aggregates and all the things we need increasingly urgently for a growing and ageing population. We need to balance land for housing and all those other demands within a framework that is trustworthy and transparent and works. Like the noble Lord, Lord Cameron, I believe that in England we have a planning system that works. A statement that planning is there to sustain the needs of the community within environmental limits serving the well-being of society alongside a sustainable economy is extremely timely and welcome, but the amendment becomes crucial when you set it alongside the limitations of the definition set out in the presumption of sustainable development as published by CLG. When you read it and follow its logic, it destabilises the careful definition of sustainability offered by Brundtland.
This amendment lays a responsibility on our generation not to put at risk future generations in the way we use our resources. Anything that moves away from that balance is extremely regressive, out-of-date and out of tune with what most people want, and that includes the business community. My experience is that good business leaders know that economic growth and sustainability are not incompatible. Indeed, good planning plans for both because they are symbiotic. The argument that growth and sustainability are interdependent is no longer a minority interest or a minority argument. It is mainstream in what planning is trying to do and what the economic and business community is trying to do in terms of its own future. It does not make sense to invest in unsustainable development, and to collude with the notion that there might be a conflict between growth and sustainability is rather irresponsible at this point. If we move to dilute that, we move the clock back and deny credibility to those who do not believe that climate change is a reality, and we undermine effective planning.
However, I agree that the amendment is not perfect. Few amendments are. The text serves very well in terms of its principal definition. I am confident that the Minister is going to accept the amendment or, at least, that he will take it away for further consideration. I have to put on my hat as chair of English Heritage and declare an interest. I believe that the definition can be improved. I would like to see inserted a reference to sustainable development meeting the social, economic and cultural needs of the present. I believe that takes on board the entire well-being that is represented by our landscapes, our historic environment and all the things that make places work for people and make our country so special. I believe that definition of cultural will give depth to the purpose of planning, bring in the nature and wealth of our built environment and give it protection. I hope that Minister will be very pleased to accept the amendment when he replies.
My Lords, I am very pleased to support these amendments. They are some of the most important ones in the Bill because I get the impression that the Bill somehow dilutes the sustainability agenda and gives rather confusing messages, as we have heard. It is going to encourage more development, possibly in the green belt, if the Times article can be believed. Then we have the nimby’s charter which allows anybody to have a referendum if they want to stop big projects. At Second Reading, I said that if the Secretary of State wants to build his high-speed line to Birmingham, he will have 25 referendum votes against it all the way through the Chilterns. I do not know whether that is the way to build a sustainable railway.
The problem we have at the moment, which I hope these amendments could help dilute or even get rid of, is that over the years we seem to have built up a policy whereby we believe in sustainability unless it costs us more. Then we somehow find a way of saying, “We are going to have to do this even if it costs more” or “If it does not cost any more and is cheaper, it may use up a bit more CO2 but we cannot help it”. For example, we have got the 80 per cent carbon reduction target, which this Government have confirmed. But I suspect that if there are problems with nuclear power stations—I hope that there will not be any but if there are—windmills or something else, the dear old coal-fired power stations will be fired up as no Government will allow the lights to go out if they can pollute the atmosphere with a bit more CO2. The same would happen with transport.
I have just been involved in investigating with Thames Water the tunnel that will collect all the drainage from London and go from somewhere in Hammersmith underneath the river towards Beckton. I discovered that Thames Water is planning to remove all the spoil by road, which I calculated would be about 500 trucks a day from central London. That is about 10 times what Crossrail was criticised for when it was moving spoil from one of its stations. I was told, “This is all very fine. If you want us to be more sustainable and not cause quite so much damage to the residents of London, it will cost someone £70 million more”. I asked where the evidence was for this and was told that the regulator would not allow it. We are still in discussions but it is extraordinary that it can claim that this is a very sustainable solution. It might make the river cleaner, but we need to debate whether it is the right solution. The fallback situation was, “We will use road unless someone can pay us extra”. To some extent, that reflects the national policy statement, to which we will come in future amendments, which basically says that you should use river or railway transport rather than road if it is economically viable. Of course, the figures can be adjusted to suit whatever you want.
The important thing is that even for those big projects, the policies as set out in these amendments need to filter down, as other noble Lords have said, all the way through the planning system to even the smallest planning application and discussion. It seems to me that this is a good way of setting out the structure, about which we can debate many more things later. I join other noble Lords in asking the Minister when we will see this national planning policy framework. I would also ask—again, this will come up later—whether it will be statutory, voluntary or advisory.
On the basis that the House of Commons is required to approve and debate national policy statements, will the House of Commons and, I hope, the House of Lords, be asked to debate this one? There is quite a lot to talk about on this and a lot of questions to be answered. I join other noble Lords is asking this fundamental question. Do the Government accept the need for some comprehensive sustainability definition in the Bill?
My Lords, I should like to add a few comments to those made by the noble Lord, Lord Greaves, in moving his amendment. All those who have spoken are very conscious of the fact that planning in the future must surely be a balance between social, economic and environmental needs. Subsection (4) of Amendment 147FD in the name of the noble Lord, Lord Greaves, clearly defines that. However, I have a slight problem with what to include and not include in the list. It is always the same whenever there is a list. Certainly, I have no difficulty with,
“social, economic and environmental needs of the present without compromising the ability of future generations to meet their own needs”.
That is something to which I hope the Minister will, when he responds, say, “Yes, this is something that we feel is extremely key”. I have a slight difficulty as we go through paragraphs (a), (b), (c), (d) and (e) because it is quite difficult to strike a balance between them. I suspect that the noble Lord, Lord Greaves, might well feel, for example, that environmental limits should be given a higher priority than the economic side. I think that the two go together and you cannot define them separately. I have difficulty with paragraph (b). We would all like to see,
“ensuring a … healthy and just society”,
included but most of us know that the society we live in is not fair for all as it is. Therefore, I have concerns about putting that in the Bill.
Turning to paragraph (e), “using sound science responsibly”, I would much rather have seen something such as “using our resources better”. We have such wonderful new technologies available to us now. We can make better use of water and can use better means of energy-saving. In future, we shall see many more of those technologies coming on-stream.
I do not wish to be a killjoy on the amendment. I support the thrust behind it. However, as it stands, it raises certain questions. Lists have never been one of my great loves. One often puts things in that one should not, or leaves out things that ought to be included. However, I very much support the theme behind subsection (4), which I started by mentioning—social, economic and environmental needs.
My Lords, I have put my name to these amendments and am happy to support them. The noble Lord, Lord Greaves, has set out the case in his usual exemplary manner. My noble friend Lady Andrews said that it was right that we should have a positive definition, which this is. She referred to the need possibly to expand it to include cultural needs. We have the opportunity to debate that in relation to other amendments in the not too distant future.
The noble Baroness, Lady Byford, challenged the definition and the listing of some of the principles. However, this is not a new definition, but one that has been around, and internationally accepted, for some time. Those principles were enshrined in the 2005 sustainability principles that were set out by the previous Government and have, I believe, been accepted all round. My noble friend Lord Berkeley referred to a fear of what has been accepted to date being diluted. The noble Baroness may also have strayed into that territory. The noble Lord, Lord Cameron, said that there was no conflict between business and the environment. The definition and proposition are neither anti-business nor anti-development.
There are imperatives for having this definition in the Bill. The planning proposals in the Bill represent a major upheaval for the current system. Amid all the change, it is important to anchor a focus in the purpose of planning. There is concern among some that, despite the rhetoric and the expressed ambition to be the greenest Government ever, that ambition is being sidelined. With a new governance framework involving neighbourhood planning, the achievement of sustainable development must be at the heart of the local decision-making process.
This issue is brought into sharper focus because there are apparently other versions of the draft national planning policy framework. Like other noble Lords, including the noble Lord, Lord Jenkin, I ask when we shall see the official version, which will clearly help our deliberations through the myriad amendments on planning. There are concerns that the drafts vary from the previously adopted and accepted meaning enshrined in the 2005 UK sustainable development strategy. We have also seen, along the way, the demise of the Sustainable Development Commission on the basis that its funding will go towards mainstreaming sustainability.
We took it from earlier responses by the Minister, Lady Hanham, at Second Reading that we were in accord with the definition of sustainable development and the five principles set out in the amendment. I think it follows from that that we should be in accord with the “purpose of planning” definition, but perhaps the Minister will take this opportunity to reconfirm that on the record. Of course, we must await the final, official draft of the NPPF, but perhaps the Minister will also say whether he considers the current version of the NPPF to include an identical definition of sustainable development, the purpose of planning and the principles set down in this amendment. It is important for us to be clear whether our discussion with the Government—and a possible disagreement with the Government on this—is on the substance of the definition or the principles, or on the fact that it is in the Bill, in primary legislation.
These issues have been brought into focus by a number of matters which lead to concerns that attempts are under way to redefine sustainable development. For example, the draft presumption in favour of sustainable development—my noble friend Lady Andrews referred to this—has a definition that states:
“stimulating economic growth and tackling the deficit, maximising wellbeing and protecting our environment without negatively impacting on the ability of future generations to do the same”.
Such statements give rise to fears that overwhelming weight might be given to the need to support economic recovery and to incentivise development that will facilitate this.
Of course tackling the deficit is an issue of huge importance, although—this is probably not the occasion for the debate—we believe that the Government’s approach is dealing with it too far and too fast. However, economic growth is only one of many objectives that the planning system can and is meant to deliver. On sustainable development duties, as the noble Lord, Lord Greaves, said, there are existing duties under the Planning and Compulsory Purchase Act 2004 and the Planning Act 2008 on local planning authorities and the Secretary of State to prepare planning policy with the objective of contributing to the achievement of sustainable development. However, in order to properly achieve sustainable development, the statutory duty, as the noble Lord said, should be more positive and proactive. That is why we support the amendment in this form.
The noble Lord, Lord Jenkin, was not particularly enamoured of this form of amendment. He made reference to the default position of LDVs, where there is not a full suite of plans at local level in place. One issue that seems to be emerging is that, if the new NPPF is written in a high-level general way and is therefore not specific around special issues, and if LDVs are not in place, then the presumption and the default position could open up opportunities for development, which would not be the case if, in fact, that local development framework was in place. If I have misunderstood the noble Lord, I apologise, but I think that he almost equated sustainability with nimbyism. I do not believe that that is right.
As other noble Lords have said, this is an extremely important start to our deliberations on planning. It is fundamental, we believe, to get that definition clear, agreed and in the Bill, because that will help drive our deliberations on a whole raft of stuff, the tiers of planning, that flow from the Government’s effectively new system.
My Lords, the noble Lord, Lord McKenzie of Luton, contrasted two definitions of sustainability—theirs and ours, as it were. May I say to my noble friend how much I prefer ours, which is in plain, understandable English? One can understand what its implications are for any particular project, while the definition in these amendments is largely phooey.
My Lords, I will not enter into that controversy, but I will say that it is quite nostalgic to be discussing these issues. Indeed, my noble friend Lord Greaves and I have been arguing a case not entirely dissimilar from that of today in other Bills and in other situations—only the geography of the Chamber appears to have changed, whereas the arguments remain. However, in my contribution to this debate, I think that I can show that the argument has in many ways moved on, and I would like to think that the Government have also moved on. I have enjoyed listening to the debate because I am interested in the subject area and, as I am sure noble Lords will know, I share the concern that all developments should be sustainable. I also think that it is important that we try to make sure that a theme of sustainability runs through all this planning section of the Bill and, indeed, through the Bill as a whole.
The Government's commitment to sustainable development should not be in doubt. That point was made forcefully in the statement published in February by the Deputy Prime Minister and the Secretary of State for the Environment. We have recently indicated how we intend to introduce a presumption in favour of sustainable development in the forthcoming national planning policy framework. I agree with all noble Lords that it would make today’s debate so much easier if we were all clutching a copy of that freshly minted document, which would inform our debate. However, I can reassure noble Lords that the document will be published not only “shortly” but “very shortly”, in which case I feel that I can assure noble Lords that the document will be available before we discuss these matters on Report. The document will inform the debate, and I think that everyone senses that in the way that the arguments have gone.
On the subject of the national planning policy framework, the noble Lord, Lord Berkeley, asked whether the document would have statutory force and whether the House of Commons or House of Lords would have an opportunity to debate it. The national planning policy framework—which, as that is a difficult thing to say and we know what we mean, I think I will call the NPPF—will be an important material consideration in all planning decisions. The NPPF will flow throughout the whole planning system from top to bottom: plans will have to take it into account and individual decisions will need to be plan led. As has been said, the Minister for Planning has made a commitment that he will present the framework to Parliament. Obviously, it will be up to the usual channels to provide an opportunity for it to be debated.
As I say, the NPPF is an important document and we want that presumption in favour of sustainable development to be at the heart of the system. We have said that we see the three pillars of sustainability—namely, economic, social and environmental—as interconnected. The NPPF will be pro growth, but it wants that growth to be sustainable, and I am sure that all noble Lords would share that view. Therefore, we understand the genuine intentions driving these amendments, but perhaps I can explain why, in the Government’s opinion and in the context of this Bill, they might well set the bar too high.
For example, Amendment 147FC seems to expect any and every planning decision to be reached with the objective of furthering the achievement of sustainable development. However, we must bear in mind that planning decisions can require trade-offs. There must be freedom for decision-takers to make such choices according to the circumstances of the individual case. For example, what are the implications of applying the duty in Amendment 147FC to applications to carry out works to nationally important listed buildings? The noble Baroness, Lady Andrews, would understand the implications of a rigid sustainability test for that task.
Since the Minister raises that point, my argument would be that the conservation of historic buildings is a central expression of sustainability. Sustainability in terms of our historic environment serves a wider purpose and does not back up the case that the Minister would want to make.
The case that I was making, if I may repeat it, is that the materials used and the standards required may not necessarily be the most sustainable. One has that with listed-building provision already. There are limits to a rigid test of sustainability, which I was hoping to illustrate by using that example.
Of course, my Lords, it is a detail; it is an illustration. All noble Lords have said that they felt that the context of this debate was the influencing of all planning decisions. This planning section of the Bill deals with just those issues, when it comes to local decisions being made in the context of sustainability. That is why it is important to understand the implications of the detail of the amendment and why—without my arguing with the general principle—there may be deficiencies in it as it has been presented by my noble friend and supported by a number of noble Lords.
Amendment 147FD is formulated slightly differently but in essence applies the same set of expectations on plans, most—but in this case not all—decisions under the planning Acts, and policy or guidance issued by the Secretary of State relating to planning functions. The amendment, like Amendments 147FC and 147FE, risks pushing to and beyond the limits of planning. I have no difficulty with the five principles of sustainable development promoted by the previous Government, but they risk loading on planning more than it can deliver. Would all five have to be met by any development proposal? How would, for example, someone extending their home demonstrate that they are promoting good governance?
Amendment 147FE focuses on the planning regime for major infrastructure—the noble Lord, Lord Berkeley, referred to a project here in London. It proposes a number of changes to the existing legislation, including extending the sustainable development duty currently applicable to the preparation of national policy statements to all decisions on applications relating to major infrastructure. In this, it is consistent with Amendment 147FC and mirrors Amendment 147FD. It therefore has the same pitfalls.
For example, applying the sustainable development duty at the decision stage could introduce great uncertainty, because it would require the decision-maker to second-guess policy in the national policy statements, which will have been scrutinised and secured Parliamentary approval. By applying the sustainable development duty in the way proposed, the amendment could unintentionally undermine our efforts to deliver energy security.
I remind the Committee that we already have sustainable development duties applicable to the planning system. These are as follows. For major infrastructure, the duty applies to national policy statements for good reason. These national policy statements set out the policy framework for decisions on major infrastructure and integrate the Government’s objectives for infrastructure capacity and development with its wider economic, environmental and social policy objectives, including climate change goals and targets, in order to deliver sustainable development. We also have a planning duty on sustainable development in the Town and Country Planning Act system. The duty applies to those preparing plans, which in turn bears on planning decisions.
The noble Lord, Lord McKenzie, emphasised how important it was that we have a future debate on these subjects with the NPPF available to us. I am sure that it will inform such debates and will be greatly to our advantage. I have not seen any text on this document at present. However, we know that the current duties within the planning system work. They avoid the risks that these amendments pose to the Bill and I hope that my noble friend will feel free to withdraw the amendment.
My Lords, I have listened carefully to what the Minister had to say but, although I welcome the Government’s commitment to sustainable development, the longer he spoke the less I was convinced of the argument he was making.
I conducted a review of rural planning policy for the previous Government. The first chapter of the review was devoted to sustainable development because there are potential perverse consequences in the way in which it is interpreted by planners at the local level from time to time. Most typically they argue that the community is not sustainable because it lacks public transport and other facilities, or people have to travel into a town to do their shopping, and therefore no development should be allowed because it is unsustainable. This ignores the fact that no development will make the community less sustainable in the long term, and that change can improve the sustainability of a community even if it does not deliver perfection.
With his colleagues, the Minister has committed the Government to the principle that we should favour sustainable development—so much so that there will be a presumption in favour of such development in the absence of other policy. Yet the Minister argues now against these amendments on two grounds. The first argument is that the detail of the amendments is imperfect—and, indeed, most of the comments against have been around that. However, if we are to believe that we should incorporate policies that favour sustainable development as a default option, surely it is incumbent on us to have a clear idea—and, more importantly, that the Government have a clear idea—of what we mean by that. If the Government do not have a clear idea, the principle that we are in favour of sustainable development as a default option cannot possibly stand.
We may have our differences around this—I do not think it is that complex an issue—but if the Minister has doubts about these amendments, he and his government colleagues should come forward with what they believe is the right definition and establish it in the Bill so that we are clear what we are empowering to happen as the default option in planning.
The second argument against is that it will in due course be in the national planning policy framework. That is welcome. I am sure that it will elaborate the detail of it and, of course, those details over time will be able to shift within the framework. However, what is being proposed is not a mere detail but is central to the Bill. In the absence of policy, the Government want it as the default option that we will approve proposals that support sustainable development—yet they will not incorporate the fundamental answer of what that means into the Bill.
I am sympathetic to much of what the Bill is trying to do; I am a proponent of sustainable development. I have argued about the perverse consequences of the misapplication of this—the gold standard. The Minister referred to it in terms of heritage, but it can be reduced to absurdity whereby nothing is allowed because nothing ever meets perfection. It is precisely for those reasons that the Government in due course should come forward with their explanation and proposition in the Bill so that we understand what it is we are being asked to approve in this legislation.
My Lords, I completely agree with the noble Lord. I think that was a very eloquent exposition of the Government’s dilemma. The Minister addressed the amendment’s frailties in its language and definition, but perhaps the Government could be persuaded to agree in principle that there should be a definition of sustainability in the Bill, which we could debate. It could build on the NPPF definition of the presumption in favour of sustainability, which is not adequate, but it would be a good start for a debate. There is an opportunity now, which may not occur again, to have something which recognises—as so much else is recognised in climate change legislation, for example—that this is a very serious issue for the economic future of the country.
Can I just add to those comments? The noble Lord, Lord Taylor of Goss Moor, introduced some very interesting comments about how this might be taken forward, as did my noble friend Lady Andrews. The Minister mentioned the national policy statements. I welcome the fact that the national planning policy document is to be published very soon and that it might be debated in both Houses. What is the relationship between that document and the national policy statements, if and when and as they are developed? Furthermore, with any planning application that falls below the cut-off level for NPSs, the policy still has to take into account the relevant parts of the NPSs. Is that going to stay? What is the relationship between these two documents and the hierarchy? My noble friend suggested putting a basic definition of sustainability in the Bill. Maybe the Minister could put in the more detailed bits of these amendments in the NPPF and then we would see it all together.
I very much support what my noble friend Lord Taylor of Goss Moor said. It is terribly important for the neighbourhood planning parts of this Bill that sustainability should be able to be interpreted at that level. At the moment in Hampshire it is part of the local policy that there should be no development in the countryside. If that is allowed under the new system, it will completely wipe out all neighbourhood planning in Hampshire. The argument is that development should take place in towns, where it is more sustainable, but if one applied that nationwide we would choose the wettest, least attractive part of the country and put all development there. It must be possible to focus down on a neighbourhood and look at what is sustainable for that neighbourhood.
I am sorry if I coupled those words in the wrong way. I meant that it had to be both. It has to be the wettest because clearly we do not want to put a lot of houses where there is a water shortage. Having decided where it is wet enough, you then choose the least attractive place. I am sure that we can all have arguments about where it should be, but clearly it is not Kent or Norfolk.
Perhaps I can start with the whole business of neighbourhood planning, because in some ways this is a bottom-up Bill and neighbourhood planning is perhaps the first building block of a new way in which to look at the planning process. I agree that sustainability must be an integral part of neighbourhood planning—and, indeed, neighbourhood plans will need to be prepared in conformity with a strategic policy in local plans, which in turn need to be set with the objective of contributing to the objective of sustainability. That is already built into the Bill, as it stands.
Perhaps I might look at the concerns expressed by the noble Lord, Lord Berkeley, about the national infrastructure projects and their relationship with the NPPF. The national infrastructure projects, which derived from the Planning Act 2008, require decision-makers to take decisions in accordance with the relevant national policy statement. The NPPF is capable of being an important and relevant consideration in these decisions but this amendment conflicts with the intention of the 2008 Act. We are working closely with lead departments to ensure that NPSs work in concert with the NPPF, which is a national framework for the whole planning process.
I hope I can explain that the Bill is only part of the Government's presentation of policy on this issue. The NPPF will put sustainable development at its heart and the Bill provides the mechanisms for its delivery. I hope I have been able to reassure noble Lords that it would be much easier to do so when they have had a chance to see the NPPF. In the mean time, I have taken notice of the elements of this debate and the enthusiasm for a more precise definition in the Bill. We will no doubt return to this, not only in subsequent debates today but on Report.
My Lords, I thank everybody who has taken part in this interesting debate, not least my noble friend the Minister, who answered a lot of the points. He spoke with customary care in the words that he used and we will read them with interest, to try and work out if any sort of Kremlinology is to be found in them. We will probably find that there is not, but it is nevertheless worth trying. He said that this amendment conflicts with the Planning Act 2008. I do not think it conflicts with it; it is trying to amend it by shifting its balance and emphasis. That is not a conflict but trying to improve it. However, he is absolutely right that we will return to these debates before we finish with this Bill.
The noble Lord, Lord Jenkin, made some very interesting comments. He mentioned a default position that applications should be accepted. That always used to be the case. It was when the town and country planning system was introduced after the war, and it was until about 20 to 25 years ago—I am not sure exactly when it was changed—when Parliament made an overt decision that the system should become plan-based. It might have been a 1990 Act; I do not know. There is a difference because you start with the assumption either that an application is passed unless there are good reasons not to; or that the provisions in the local plan will prevail so that if an application is in accord with that plan it will be passed but, if it is not in accord with it, it will not—subject to other considerations.
I am not clear where the Government are going on this because, on the one hand, we have statements suggesting that what the noble Lord has said will be the new policy and, on the other, we hear Ministers say that the plan in future will be sovereign. That was said in the House of Commons, and by Ministers in briefings that we have had. We understand that it might perhaps be even more sovereign than it has been. You cannot have both those. This is one of the fundamental differences that we have to resolve. It is one of the fundamental discontinuities as regards what individual members of the Government are saying, and what some of the same people are saying at different times.
This is a new planning Bill; we should be under no illusions about that. Part 5 of the Bill is a planning Bill on its own and could have been presented to us as a planning Bill on its own. Personally, I wish it had been as we could have given it better consideration. It is turning the planning system upside down, or making very fundamental changes to it in exactly the same way that the Planning and Compulsory Purchase Act 2004 did. It will fundamentally change the way the planning system works from top to bottom. I am not saying that what it is proposing is not a good thing; I am saying that that is the situation. We have to ensure, if only to apply the workability criterion of the noble Baroness, Lady Andrews, that at least the thing will not cause chaos when it leaves here.
The same difficulty in understanding what is proposed applies to neighbourhood plans as opposed to the rather top-down, pro-growth agenda which was pushed by the Chancellor in his Budget speech and in documents issued after that. On the other hand, promises seem to be being made to people that, in future, neighbourhood planning really will be neighbourhood planning and decisions will be made at the very local level. I have heard the noble Lord, Lord Lucas, wax lyrical in these debates about how the new neighbourhood planning system will release growth. It may well do so but it will not do so everywhere. There is absolutely no doubt that in some places it will result—if the neighbourhood level is going to be predominant—in the nimbys winning, because if you have local democracy and make decisions at local level, some go one way, some go the other way, but they certainly do not go the way that you want. This all stems from the original Conservative document, Open Source Planning, which came out over a year ago. That was a very interesting document but it was based on the premise that everybody would have a local neighbourhood plan and the district plans—the local authority plans—would be a sort of jigsaw made up of each of the local plans stuck together. That was a bit idealistic as you have only to think of two adjoining places having completely different policies to realise that that does not work, but that is what the document said. My interpretation of what we have now is that the philosophy underlying Open Source Planning has gone through the mill of the civil servants, who have turned it into something a bit more practical—or is it a bit more practical? That is what we have to find out.
It is delightful to hear the noble Baroness, Lady Andrews, arguing the case that I was arguing when I was sitting where she is sitting. I am still arguing it over this side. It would be interesting to go back to those debates and see what the noble Lord, Lord Taylor—the Minister—said then. However, we understand how this works and Governments have to take a corporate view. If the noble Baroness is a repentant sinner, we should remember that there is more joy in heaven at one sinner who repents than there is with everybody else, so she can bask in that glory for a moment.
The noble Lord, Lord Berkeley, talked about HS2. That is a classic case. As I said when I was moving the amendment, this does not mean that every single decision has to have exactly the same balance. The important thing is that you have the framework that sets out the balance and you make the judgments on each individual decision—each project, planning application or plan at whatever level—in the light of that overall framework. Clearly, there are trade-offs and compromises—that is life. I passionately support HS2. However, on the basis of its effect on a small narrow strip of the Chilterns, you could say that it is environmentally damaging—how damaging you can argue about. If, on the other hand, you look at it from the point of view on the other side of the environmental dimension—climate change—you would probably agree that investing in new railways rather than new roads is a good thing. You have to balance those judgments, but that does not alter the fact that you need an overall framework that balances the different elements.
I accept what the noble Baroness, Lady Andrews, said about cultural factors. However, a scheme in Nelson involved building a new school as a regeneration project in a different and unique conservation area, which was an old industrial area with lots of old houses. We had a long battle with the noble Baroness—or at least with her organisation—and other heritage groups about how many of the derelict empty terraced houses we could knock down. I am very pleased to say that the issue has been resolved, planning permission for the new school was approved last week, and the scheme will go ahead. However, as to the compromises and trade-offs between the different viewpoints on the scheme, we were very irritated—a mild word to express how we felt—at the behaviour of the heritage organisations. Perhaps they were right and in the end we may get the best solution because it will be balanced and do what everyone wants it to do.
I have said enough. There should be a statutory framework for this matter. I am not suggesting that these amendments are absolutely perfect, but I nevertheless strongly believe that something within this general framework should be in the Bill; it must be the purpose of the planning system; and it must apply, if not to everything, then at the very least to all the plan-making activities within the planning system. I hope that when we reach Report we might have something that has been agreed with the Government and that we can all support—who knows? If that is the case, as with everything else, none of us will think it is perfect but we will accept it as a trade-off and compromise. I hope that the Government will look at this in that way. I beg leave to withdraw the amendment.
Amendment 147FC withdrawn.
Amendments 147FD to 147FF not moved.
147FFA: Before Clause 94, insert the following new Clause—
“National Planning Policy Framework
(1) The Secretary of State must issue, designate and update a National Planning Policy Framework, to establish policies to achieve sustainable development.
(2) Such policies should relate to mitigation of, and adaption to, climate change.
(3) Before designating a document as the National Planning Policy Framework for the purposes of this Act or before amending any such document, the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the document or the amendment to it.
(4) A document may be designated as the National Planning Policy Framework for the purposes of this Act only if consultation, publicity and parliamentary requirements set out by the Secretary of State, have been complied with.
(5) The requirements in subsection (4) above apply to any amendments to the National Planning Policy Framework.”
My Lords, this amendment relates to the national planning policy framework, which we have just discussed and will doubtless feature in each day of our considerations. The amendment requires the Secretary of State to,
“issue, designate and update a National Planning Policy Framework”
that must set out,
“policies to achieve sustainable development”
and focus on mitigation of climate change. Before designating a document as an NPPF, the amendment requires there to be an appraisal of sustainability and for the proposal to be the subject of consultation, dissemination and an appropriate parliamentary process. It is not, at this stage, specific about what that process might actually be.
I contend that the amendment goes very much with the grain of government and with what the Minister said earlier. The coalition agreement stated:
“We will publish and present to Parliament a simple and consolidated national planning … framework covering all forms of development and setting out national economic, environmental and social priorities”.
If the commitment can be enshrined in the coalition agreement, why can it not be in the Bill? This does not call for the NPPF itself to be part of the Bill, just the requirement to produce one. We could have asked for—and we may do so on Report—an obligation to review and update on a regular basis.
On 13 September 2010, the CLG Select Committee inquiry into the work of the department asked the Minister how the NPPF is to be produced. He said:
“We are committed to bringing together and simplifying a set of planning documents that has become like the tax code, it has grown over time and we want to step back and distil it to its essential principles. In so doing, and I do not want to pre-empt the announcement we will make, but I do not want that to be done in the way that these things have been done before, behind closed doors, drafted by people in secret and then just a puff of white smoke emerges and there it is. I want this to be collaborative. There are lots of people who have a great interest in the financial planning framework. Whether town planners, whether people in local government, whether environmental groups and I want them to participate in that re-drafting in a way that I do not think has been extended to them before. That is the direction that we are going, but obviously I need to make a formal announcement to the House in due course”.
He was asked:
“Will Parliament be able to contribute?”.
He said yes. When pressed again about whether it was the committee or Parliament, either or both, the Minister, Greg Clark, said, “Both”.
It is unfortunate that we have to discuss the issue without the benefit of the official draft, in circumstances where what purports to be an unofficial draft seems to be in wide circulation, already commented on by various organisations and the press. The Minister has told us when an official version will be available—very shortly, was the expression that I believe he used.
As we made clear previously, it is very difficult to debate some planning issues effectively without that. There has already been pre-consultation and a draft of the NPPF produced by the practitioners’ group, and there is now to be a full public consultation, so the Government are delivering on aspects of the promises that they made last September, but perhaps the Minister can confirm how they will complete that promise and what will be the role of Parliament, particularly the role of the House of Lords, as well as the House of Commons. The role of Parliament is crucial, given the fundamental significance of the NPPF, as the Minister himself outlined. It represents, according to Mr Clark, part of a radical overhaul of planning policy cutting out thousands of unnecessary central instructions.
A role for Parliament would be especially important if there is anything in some of the fears expressed by certain groups on the basis of the unofficial draft. They say, on the one hand, that the NPPF is written at a high level without much detail. It is therefore difficult to gauge compliance of local plans with the NPPF. Where many local planning authorities have yet to adopt local plans, the bulk of planning applications will be assessed against the NPPF. They characterise that as a potential planning free-for-all. It remains to be seen whether that is the case, but it remains imperative that Parliament has a say in the outcome. I beg to move.
My Lords, my Amendment 166VZC is grouped, and I of course support my noble friend Lord McKenzie's amendment. My amendment is designed to be a helpful contribution to Ministers. As we have not seen the NPPF, it is a suggestion of what it might contain.
I declare an interest as chairman of the Rail Freight Group. There is not much about rail freight in here, but there might be a bit. The key point is in subsection (2) of the amendment, which tries to set out in more detail how the activities and development of other parts of local authorities, regional authorities, the Government and other people could be made more sustainable if they took into account the cost of environmental issues such as transport. The obvious example is when, two years ago, a lot of law courts were closed in different parts of the country, which meant that people had to travel for long distances and sometimes even stay overnight or pay for taxis because there was no public transport. Of course, the assessment of the benefits of closing law courts did not include anything to do with transport, and one could make the same comment about the closure of hospitals. Therefore, the amendment is intended to try to link planning with transport and to look at the sustainable elements involved.
Transport routes are fundamental in the location of warehouses and distribution sites so as to reduce distances travelled and traffic congestion on busy roads. I have included something about former railway lines. I know that the Government are not yet interested in reopening former railway lines, and I can understand why in the present situation, but a lot of people will be looking at this. I know that it is planned to locate High Speed 2 on some disused railway lines, but there are many other lines in this country which could be used not for railways as such but for cycle ways and other transport routes to get people off congested roads. However, it is very difficult to reinstate corridors for those types of purposes if bits of the land are sold off. Reinstatement costs an enormous amount.
I mention in paragraph (d) under my proposed new Clause 2 in the amendment the need for travel to be minimised and, in paragraph (e), sustainable transport modes for the movement of people and freight. However, it is also useful to talk about, as I do in paragraph (f), public transport, pedestrians, cyclists and disabled people. I believe that in future all these things will have a much greater impact if we are to meet the famous 80 per cent reduction in carbon. That is the Government’s target and I think we all support it but achieving it is going to be pretty challenging. Lastly, paragraph (g) would remove the need to travel so far and would maximise sustainable modes of transport. I do not know whether those points will be in the final version of the NPPF but, if they are not, perhaps the Minister could consider making a few last-minute amendments and including them.
We have talked about the parliamentary requirements, and there is obviously a need for consultation.
Proposed new Clause 5 in the amendment makes yet another attempt at achieving sustainable development. I do not think that I need to go through it with your Lordships now because noble Lords will all have read the NPPF and we all have ideas about what it should contain. However, it certainly demonstrates to me the need to have something like this in the Bill and to have more detail somewhere in the NPPF, as I have tried to do in the amendment.
My Lords, there was considerable discussion in the debate on the previous group of amendments about the national planning policy framework, although there was no mention of it in any of the amendments in that group. We come to it for the first time with these amendments.
I agree with those noble Lords, including the noble Lord, Lord McKenzie, who said that it is unfortunate that we do not already have the NPPF—the document that is, as I understand it, in 50 or 60 pages going to replace 2,000 pages of PPSs, PPGs and other planning documents that stretch back over 50 years or more. Of course, it will have a very large impact on how the Bill works in practice. I hope that we will have it very shortly, as the Minister said, and debate it.
However, I do not believe that this is the right place to debate the NPPF or to go further and pre-empt it, as the amendment in the name of the noble Lord, Lord Berkeley, seeks to do here in particular, with four pages of text setting out suggested contents for the NPPF. Being an amendment of the noble Lord, Lord Berkeley, it concentrates on transport and is highly prescriptive in that field. It talks about giving priority to bicycles and pedestrians, installing electric charging points and so forth. I shall not say what I think about any of those details because I simply do not think that this is a suitable moment to debate them. However, what I most certainly do not agree with is a reference in the first amendment of the noble Lord, Lord McKenzie, to climate change policies. I do not believe that either the NPPF or this Bill should be used to give impetus to the Government’s renewable policies. I shall have more to say about that on a later group of amendments. I hope that the noble Lords who put their names to this amendment have said what they want to say and that they will be able to withdraw their amendments and not reintroduce it.
My Lords, we shall come, although not tonight, to clauses in the Bill dealing with national policy statements. Many noble Lords here are veterans of the debates about how national policy statements should or, in many cases, should not be dealt with. Perhaps it is not fair to say, “should not be dealt with”, but perhaps I should say, “should have been dealt with in a more extensive and iterative fashion”.
I use this opportunity to say to the Minister that I hope that by the time we get to Clause 114, on national policy statements, he may be in a better position to explain to the Committee how the national planning policy framework will be dealt with in procedural terms. I cannot gaze into a crystal ball, but I do not think it takes much imagination to guess that we shall debate the role of this House, as this House could make such a contribution to the planning policy framework and to the policy statements. I am sure we shall debate those things. As well as making that plea, I put down a marker for what I have said might be a more iterative and more measured process and certainly for the House to have an opportunity to make more of a contribution than it was able to do on the current arrangements under the Planning Act 2008.
My Lords, I would like to add a couple of points. Following on what my noble friend Lady Hamwee has just said, anyone who has taken part in the discussions on the national policy statements in this House probably realises that it has not been a very satisfactory process. When we talked about them under the 2008 Bill, there was a question about whether this House would be involved in discussing them at all. A campaign was led by the noble Lord, Lord Jenkin of Roding, for this House to have a role in scrutinising them. That was successful to a degree, but the powers that be restricted what was to happen to the absolute minimum. The level of scrutiny which national policy statements have had in this House has consisted of a session in the Moses Room, when there was a debate with a speakers list, and then the matter came back to the Chamber. In theory, amendments could be moved when it returned to the Chamber, but I cannot remember any. Apparently, there were some. Did we vote on any? The noble Lord will know better than me.
In the House, we had some very good debates and amendments that were debated. When the Government published their revised national policy statements, they took every single amendment and most of the comments that had been made and responded to them. Apart from the issue of approval, which of course is new in this Bill, and is confined to another place—the noble Lord, Lord Berkeley, has a lot of amendments down on that—I would have thought that the way in which the Government have handled the national policy statements has been exemplary.
I stand reprimanded by the noble Lord. All this excitement obviously took place in a period when I could not be in the House. I still think what I thought at the time—that the best way to scrutinise detailed documents such as this is to have a Select Committee-type scrutiny process. If that could be combined with the exciting dénouement debate in the House that the noble Lord spoke about, that would perhaps be the best solution.
This will be a very important, overriding and high-level document. I am starting to use American management jargon: next I shall start talking about deep-diving into the detail and that sort of rubbish, but never mind. One of the great things about these Committees is that we veer from talking about high-level things to debating how they will affect a particular group of allotments or whatever.
My second point is a question to the Government. What is the timetable—perhaps I have missed this—for the phasing out of planning policy statements and the phasing in of the NPPF? Local authorities are in some sort of limbo as regards planning policy statements and planning policy guidance. They still employ people to make sure that their local development documents are in accord with them, but they are not sure to what extent they are wasting their time, or whether it is useful work as guidance for what they are doing. At what stage will there be a changeover? Will the planning policy statement suddenly cease to have any validity when the new system comes in? When that happens, what will local planning authorities do with the work they are doing? Will they have to start again from scratch if they are half way through developing their core strategy in order to make sure that it accords with the new national policy planning framework, as opposed to all the documents that they have been working on until now? Many local planning authorities are in limbo. They are not sure what is going to happen and could do with advice on what to do.
My Lords, this has been a useful debate, which has reinforced our previous debate and put the NPPF at the heart of it. In its absence, we can but note its significance and importance in relation to the Bill. I will start by reassuring the noble Lord, Lord McKenzie, that the Government plan a full public consultation on the document—it will not be just for Parliament to debate the matter—and will follow established best practice for consultations. We have already sought a variety of consultations in formulating the NPPF, including with community groups.
Bearing in mind the interest of noble Lords in this matter, I will ask that as soon as it is published copies will be made available to all noble Lords who have participated in the debate. I appreciate that there may be an interval before we in the House are able to debate this. That is a matter for the House authorities, not for the Government. However, it is an important part of the discussion of this document.
My Lords, there is a great appetite to see the document. However, on the matter of timing, I note that the noble Lord said that the consultation will accord with best practice. Will that include taking account of the August holiday period, given that publication is likely to be just as that starts?
I assure my noble friend Lady Hamwee that this is at the heart of what we are trying to achieve.
The Government are not seeking to railway—I am looking at the noble Lord, Lord Berkeley, and I immediately think of railways—railroad this through. They want it to be a proper discussion document because it is going to be at the heart of the planning process. Indeed, community involvement is going to be vital in the planning system at the local level where plans are created and decisions are taken. Community engagement is embedded at the heart of the planning process through tools, such as the statement of community involvement, to ensure that local people are involved in the shaping of their area.
There is no need formally in legislation to forge a link between the framework and sustainable development because the latter has long been the basis for all planning policy, as I said in the previous debate. It will be a core principle of the new framework. The noble Lord, Lord McKenzie, asked about where plans are not up to date. The NPPF will be able to provide a clear basis for determining applications. It will be up to decision-makers to decide the weight to give to the plan and the NPPF in each case.
I understand the desire to put a presumption in favour of sustainable development on a statutory footing as it should be central to the way the reform of planning policy works, but in making it central to the NPPF, as we propose, we believe we can do that without creating conflicts with existing legislation, as this amendment would do. For example, we could not, as proposed here, require in law all individual proposals to be approved wherever possible and still have a plan-led system.
Turning to the proposals put forward by the noble Lord, Lord Berkeley, the transport planning policy has been set out within the national policy. This is the best place to spell out how the impact of new development should be considered through the planning system. Legally, decision-makers must have regard to national policy where it is material to their decision, and transport issues are one of the material considerations routinely taken into account. Importantly, policy is more flexible and more capable of responding swiftly to changes in circumstances than legislation. Therefore, I do not think it is appropriate to make changes to transport policy through legislative means, particularly when the Government are due to publish the NPPF, which will include transport policy. If changes are required to transport policy, they should be carefully considered as part of that consultation and, if appropriate, taken forward through the NPPF.
Moving to the next issue, the proposal that the NPPF should be able to trump all other plans where there is an inconsistency fundamentally changes the way the plan-led system is designed to operate. At local level, this is unnecessary and deeply centralising. Section 19(2) of the Planning and Compulsory Purchase Act 2004 means that local plans should be prepared having regard to national policy, which will include the new NPPF. The Planning Act 2008 requires decisions on major infrastructure projects to be taken in accordance with any relevant national policy statement. There is a national need for a new infrastructure, and it is essential for growth. That is why the Government are establishing what is needed and how planning decisions should be taken for those national-level schemes that will have impacts and benefits beyond the local area. Each infrastructure sector is different, which is why we are urgently pressing ahead with sector-specific national policy statements rather than a single national policy statement to cover all sectors.
Can the Minister confirm what has always been my understanding that the national policy statements will continue to exist and operate under the 2008 Act alongside the new national planning framework? It is not, as I understood the noble Lord, Lord Greaves, to suggest, that one is going to sweep away the other.
That is good news and what I understood myself. Will the Minister give any indication of when the missing national policy statements might see the light of day? They keep being delayed and delayed. Some are published in draft form but it would be nice to see them and eventually debate them.
Like the train, one might say that they will be along in due course, but I do not have the timetable to hand. I am left rather, as is the noble Lord, waiting on the platform. They are on their way. I think that the most urgent document we want to see is the NPPF. I am sure that is where we all stand on this issue.
I have a note here to say that we are working with the lead departments to ensure that the national policy statements and the NPPF work in concert. We see them as being in harmony with each other. I have a note which might be useful to my noble friend Lord Greaves. He asked for the timetable of phasing out PPSs. The current suite of policy and guidance will remain in place until the NPPF is finalised but we will notify the arrangements in that respect. I would imagine that the NPPF will influence planners immediately after it is published.
Perhaps I may say to my noble friend Lady Hamwee that the consultation period will continue way beyond the summer, as I implied in my opening statement.
This may be the only time we get a chance to discuss the NPPF. I understand that guidance on the NPPF is being prepared. It will be very important because the NPPF is a reduction of principle and it is vital that local authorities in particular understand exactly what they are meant to do. The production of guidance alongside the NPPF is critical. Will we be able to see the guidance as well when the NPPF is published and will there be an opportunity for the House to have a look at that at some point? That will be very important.
I cannot give an answer to the noble Baroness at this moment but I can assure her that when the copy of the NPPF is sent, I will accompany it with a letter giving the arrangements for the guidance to go with it. I hope that that will help the noble Baroness. In the mean time, I hope that this has been a useful debate. It has rather reinforced the debate we had earlier and I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, I am most grateful to the Minister for his reply and for the contributions from other noble Lords. I am not a veteran of past debates and discussions around planning and I am not sure yet whether that is a disadvantage or an advantage. Perhaps I should assess the matter at the end of proceedings.
The noble Lord, Lord Reay, is right. There is no point in debating the document if we do not have it—so the sooner we get it, the better. I would not agree with him on climate change but it looks as though that will be a subject for debate as our deliberations proceed. As the noble Lord, Lord Greaves, said, this is a very important document. I am a little unclear from the Minister whether he supports the principle that there should be in the Bill an obligation to produce an NPPF and some parliamentary process attached to that. I am not asking for the content of it but whether he supports the principle. I may have missed it when the Minister was responding, but I am not sure that he dealt with that point. I understand that, as a parliamentary process, a Select Committee might be a more productive route than a few days on the Floor of this House, although that can be good fun as well. I should be interested in the Minister’s view on that.
I apologise to my noble friend Lord Berkeley. I had not realised that his amendment had been grouped with this one. As the Minister said, it is, perhaps, more prescriptive. My understanding was that national policy statements sit alongside the NPPF, and I think that is what the Minister has confirmed. I am happy to withdraw the amendment but before I do so, can the Minister say what the problem is with having a requirement in the Bill to produce an NPPF? That requirement is not there. What is it that obliges a Government to keep it up to date?
The noble Lord is quite right: there is no reference to the NPPF in the Bill. The Government have no intention at this stage to include it in the Bill, but we will listen to any argument that the noble Lord puts forward and consider the matter. However, it is not the Government’s intention to produce an amendment to put a reference to the NPPF in the Bill.
I am answering the question directly. I think the noble Lord wants to know what the Government’s position is. The rationale behind it, I expect—I am only deducing this—is that the Government want flexibility in the mechanisms that they use in national policy frameworks in future and in any replacement device that they might consider necessary. Not enshrining the NPPF in primary legislation makes it easier to change the arrangements. None the less, there is determination at the moment to use the NPPF as the main device. I have some advice on this matter which may help. The law already requires a local planning authority, when making plans, to have regard to policies and guidance issued by the Secretary of State. As we know, the NPPF is a replacement for that guidance and advice. Therefore, this applies to the NPPF. The NPPF’s authority derives not from this Bill but from the Planning and Compulsory Purchase Act and the Town and Country Planning Act. In the absence of an NPPF, the Secretary of State would still be obliged to issue guidance under those Acts. That is where the NPPF fits into the equation.
My Lords, again, I am grateful to the Minister for that response. As I understand it, he is saying that local planning authorities must have regard to what the Secretary of State issues. The missing link is what requires the Secretary of State to produce the framework. This is an issue to which I should like to return. I beg leave to withdraw the amendment.
Amendment 147FFA withdrawn.
147FG: Clause 94, page 71, line 40, at end insert—
“(3A) Subsection (3) shall not apply to those policies in an approved regional strategy that have been specifically referred to as part of the policy content of a Local Development Framework submitted under section 20(1) of the Planning and Compulsory Purchase Act 2004 (independent examination) in advance of the coming into force of this section.
(3B) Subsection (3A) shall apply until whichever is the earlier of—
(a) at the end of the period of three years starting with the date on which regional strategies are revoked under subsection (3) above,(b) the day when in relation to a policy covered by subsection (3A), a new policy which expressly replaces it is adopted or approved.”
My Lords, Amendment 147FG relates to Clause 94 and the abolition of regional strategies. I fully accept that regional spatial strategies are to be abolished and the Government will not want to extend their life. However, there is a danger of a hiatus before the issues currently covered by the regional spatial strategies can be properly incorporated into new local development plans by the relevant local planning authorities.
Quite apart from the many cases where no local development framework has been completed, there are the situations where a local development framework has been properly finalised, but refers specifically to items in a regional spatial strategy which will now disappear, or where the local development framework is silent on an issue because it is addressed by a regional spatial strategy and those preparing their local development framework were encouraged to exclude matters already set out in a regional spatial strategy, particularly relating to environmental aspects of the plan. The local development framework has gone through its planning inquiry exercise with evidence in public and endorsement by the planning inspectorate. If it wishes to change its contents now to take on board those items which the abolition of the regional spatial strategy means are no longer in place, it has to go through a partial review, through the whole consultative process all over again. With cuts in staffing levels, not least in growth areas, through the loss of the previous planning and housing delivery grant for extra staff and IT, getting into a new local development plan exercise will be expensive and problematic.
My amendment to Clause 94, Amendment 147FG, would mean the retention of those items in regional spatial strategies which local development frameworks relied upon, but which will evaporate with the abolition of the old regional spatial strategies. This transitional measure would stay in place for up to three years, giving local authorities the chance to produce a new local development plan that can take into account the fact that the RSS no longer exists. I have resisted suggestions that I table an amendment that would retain regional spatial strategies until such time as all the new local development plans are prepared and approved. Indeed, it will be necessary for local development plans to embrace the new national planning policy framework’s content in due course and this will include the definition of sustainable development, which will thereby be incorporated into local development plans. However, all this is some months away. Nevertheless, I do not think that hanging on to the regional spatial strategy would be acceptable to the Government. Instead, I am hoping that the Minister likes this way of approaching the transitional problems that particularly face the 40 per cent of local authorities that have been efficient enough to produce their local development framework. The amendment would let them avoid having to go through the LDF process all over again simply because some words in the regional spatial strategies were not repeated in their own local development framework.
The Royal Town Planning Institute feels that this amendment would be of considerable help and I hope that the Government will look sympathetically at it in order to help local planning authorities get through this transitional phase to the new system. I beg to move.
My Lords, this is a very important amendment and it is supported by other organisations as well as the RTPI. I hope that the Government will take this in the spirit in which it is intended. I believe that this is an oversight, in fact, and one which, unless it is addressed will really make life difficult for, ironically, the very assiduous local authorities which completed their LDFs, as the noble Lord, Lord Best, says. I will not say that we have given up the case, because I believe that regional spatial strategies had a great deal to offer, but we are not revisiting that debate at all here. This is about a transitional situation, where a local authority has its LDF in place, but where it has preferred, to save itself time and resources and to be consistent, to use the content of the RSS as a way of indicating what its policies—on housing supply and distribution, on climate change—will be. It is now in a very difficult position, if there is this lacuna, because, obviously, with the RSS having gone, the content has been abandoned as well, or put into some strange sort of limbo.
It is very important that we do not waste those resources, such as the information and the data sets. More importantly, the local authority should not have to waste time and resources by revisiting those matters or by reiterating the process through a partial review. That would not make any sense. Therefore, it is extremely important that the Government look closely at this provision to see what can be done, which I suspect would not be too difficult to do. I think that the noble Lord, Lord Best, has a good amendment here.
My Lords, I, too, support the thrust of the amendment of the noble Lord, Lord Best. I am concerned that the change-over to the new system will simply result in more delay and more expense for local planning authorities that have struggled to produce their local development frameworks—or local plans, as we may now have to call them.
My Amendment 147H is slightly different. It seeks to tackle part of the same problem, but it looks at the issue from the point of view of the local planning authority rather than from that of the regional strategy. My amendment reads:
“The provisions of this section do not affect the validity of any local development documents or of any policies contained in any local development document whether or not any such policy was adopted in order to be in conformity with a regional strategy or structure plan”—
the old structure plans were incorporated pro tem into the regional strategies, although I do not know how much of them survive. The crucial thing is that, if a local planning authority is taking its core strategy, for example, to an inquiry for examination, the strategy should not be torn apart just because those aspects of it that have been adopted in order to be in conformity with the regional strategy—or regional spatial strategy—would no longer need to be so if the local authority was starting again from scratch. Although the local authority might be able to argue that a policy is good for this reason or that reason, the true reason that a policy has been included might be in order to achieve conformity with the regional strategy. The issue is as simple as that.
Under the old system, the local authority’s approach to the examination could be to say, “It is there because it has to be there,” and that would have been the end of the argument. However, the inspector might now say, “Yes, but we have a new system now, so are you sure that this applies to your area?”. As we know, the imposition of regional policies has not always been in accord with what was desirable in a particular area, such as was the case with the old housing targets. As the noble Baroness, Lady Andrews, will remember, in East Lancashire we fought for a long time with the Government to be allowed planning permission for new housing. Because the housing targets were so low and had all been achieved, we were not allowed to give housing permission for housing that we wanted. That was a total nonsense as a result of the planning system being too prescriptive and too top-down. We were in the opposite position to that of authorities in the south-east, which were arguing against being forced to build too many houses.
However, that has all gone now. I do not know how much the noble Baroness had to do with this, but when I asked a Question in your Lordships’ House, the Answer that I got from her colleague the noble Baroness, Lady Morgan, started a process. It then took a year before what Ministers were saying here and in the Commons filtered down to grass roots, but it actually changed what was happening, and I was very grateful for that. That is very good example of how the old system did not work very well.
My Lords, briefly, I support Amendment 147FG for the reasons that the noble Lord, Lord Best, has very fully described. Basically, the policies were two sides of the same coin and, if one set of strategies drops off the edge, that will give rise to the possible confusion and legal challenges that have been mentioned.
I also support the amendment of the noble Lord, Lord Greaves. If I understand what he said, his amendment is slightly different, in that it would provide that, where policies from the structure plan are still around, they would be saved. In a sense, that is unlike the situation where the policies do not exist at local level because they disappeared with the regional spatial strategy. I would certainly support the thrust of his amendment as well.
My Lords, I am grateful to noble Lords for raising this issue because it is important that the Government have an opportunity to explain their position on it. I am also grateful that noble Lords have not sought to revisit the fundamental decision.
We know that the difficulty with regional strategies is that they imposed policies and targets on local councils and communities. As my noble friend Lord Greaves said, this has created a certain antagonism and set people against development. As a result, the regional strategy process has been controversial and protracted, creating uncertainty for communities and investors. In reality, the process has not been effective. Regional strategies did not deliver the housing that the country needs, and housebuilding fell to the lowest peacetime level since 1923-24.
In proposing Amendment 147FG, the noble Lord, Lord Best, seeks to allow councils to retain regional strategy policies for a three-year transitional period, but the Government do not agree that there is a need for this sort of transitional arrangement. The coalition agreement clearly set out the Government’s intention to abolish regional strategies and to return democratic decision-making powers on housing and planning to local councils. The Government’s intention to abolish regional strategies has therefore been public knowledge for some time, so we do not consider a further period for transition to be necessary.
My Lords, this is not the point. We agree that regional spatial strategies should not be revisited; we are not challenging that point. The point is that there is a gap in the ability of local authorities to develop and implement the policies that they have already agreed, because the content was in the regional spatial strategy. What allowance will be made for those local authorities which might now have to go through a partial review and reinvent it all? Why is it so difficult simply to allow them to save those policies? I am sorry for having interrupted the Minister prematurely, but I just felt that he was not addressing the point that we had made.
I may not be addressing the immediate point of the debate; I was trying to put the Government’s position in the context of their wanting to set the drivers for local authorities to address this issue and set about these reviews as quickly as possible. We did not want to leave the regional spatial strategies in place as a backstop, because the drivers for change must come from local authorities undertaking the review themselves.
We recommend that any reviews be undertaken as quickly as possible. That will enable councils to move away from an inflexible, top-down approach, which I think the noble Baroness will admit was the effect of the regional strategies, and take a lead in planning to meet the aspirations of their local communities.
Councils are perfectly capable of addressing strategic issues locally, working with adjoining authorities—we will talk about the duty to co-operate when we meet again—and other bodies as needed. The duty to co-operate will help them to work together. We know that some councils are already forging ahead and developing strategic policies in their local plans.
Reviews should be proportionate, focusing on relevant key issues. Councils do not need to undertake wholesale reviews as a result of the change. Plans must be based on robust evidence and be deliverable, otherwise they will not have the confidence of communities or investors and may not pass the tests of soundness at independent examination. I reassure noble Lords that the same evidence that informed the preparation of regional strategies can be used to support local plan policies.
Amendment 147FH would ensure that policies in existing local plans which were originally drafted in conformity with saved structure plan policies, or regional strategies, were not undermined by the revocation of these policies. As with the Government’s intention to revoke regional strategies, the commitment to revoke the saved structure planning policy has been known for some time and, for the reasons I have already given, we do not think that the amendment is necessary. Councils will be free to incorporate elements of saved structure plans and revoked regional strategies into their local plans when they review them. It will be for them to decide how much of these policies they wish to retain for their areas.
Revoking regional strategies is an important part of our proposals—I think the Committee recognises that—to decentralise decisions on housing and planning to local councils and communities. It will make local plans drawn up in conformity with national policy the basis for local planning decisions and put greater power in the hands of local councils and communities. If councils intend to review their local plans once regional strategies are revoked, they should do so quickly and in a proportionate way. There is no necessity for transitional arrangements.
With these assurances, I hope the noble Lord is willing to withdraw the amendment.
The Minister referred to the inclusion in the coalition agreement of the abolition of the regional spatial strategies, and all noble Lords understand that. I am sure that the Government would not say that local authorities should work on the basis that regional change had happened as a result of an announcement, as distinct from within legislation. If I am right about that, can the Minister give the Committee any news about when the Government intend to bring what will be Section 94 into force? Its commencement might answer some of the points about transition. It strikes me that there is a relationship there.
My Lords, requiring local authorities to go through this process is completely inimical to the idea of localism. As I understand it, the Government’s policy is to reduce burdens on local authorities, but I do not know whether the problem that is being addressed is a political problem—we understand why the Government want to get rid of regional strategies—or a methodological problem; you cannot save these regional spatial strategies if you have abolished them. I do not whether the Government are wrestling with a practical problem or a political problem.
On the basis of the information that I have received, I know that in every previous attempt at moving from one planning system to another there have been transitional arrangements and a capacity to save plans. This has meant consistency and the saving of time and resources for local authorities. The noble Lord, Lord Best, and I are genuinely trying to help the Government in this situation and to help local authorities to avoid having to go through an elaborate double process.
My Lords, perhaps it would help if I reiterate what I said before. There is no conflict here. It is possible to inform the review on the evidence provided by the regional strategies and to form the new plans on that basis. Indeed, elements from the regional strategy can be included in them, as I have made clear. It is important to see this as an evolutionary change. We believe that the drivers to get local authorities to address this issue need to make it quite clear that local authorities are responsible for it.
The noble Baroness rather oversimplified what localism means in the sense that it would release the burden on local authorities. It will not; in many ways it will increase the responsibilities that local authorities will have in forming their own destiny and their own policies. It is an oversimplification to say that this Bill is about relieving the burdens; it is about delivering a much more community-led planning policy. That is why the Government are very keen to make sure that it comes into effect as quickly as possible.
I cannot answer the question asked by the noble Baroness, Lady Hamwee, unless it is on the piece of paper that I have just been given. It says that revoking the eight regional strategies will be by commencement order as soon as practical after Royal Assent.
The Minister said, about amending the local development frameworks or documents, that authorities should get on and do it quickly. Does he have any understanding of how long it actually takes to do these things, even for an efficient authority? Can he give us an estimate of the delay that that will take in a typical authority?
When I made my introduction to the Government’s position on this, I hope that I made it quite clear that we go back to May of last year for indications of what the Government would require of local authorities in this respect. I cannot believe that local authorities have been sitting there, waiting for this to happen. I believe that local authorities are sufficiently on top of the job to know what they are required to do to make their local plan that much more relevant to their community. I believe that they feel liberated because of that and I think that most of them will eventually set about that process. Indeed, many of them will already be well down the road.
My Lords, I must confess to being a bit disappointed. I clearly did not explain the position adequately. When I asked the people behind these proposals what they expected the Government to do about this, I was told that they thought the Government would be very pleased not necessarily to accept the wording of the amendment but to have a peg to hang something on to handle the transitional problem that faces local authorities. It faces in particular the good guys, who have already prepared their local development frameworks. Just for a partial review of the local development framework, they will have to go through the whole process of hearing evidence in public, getting the planning inspectorate back again and allowing all kinds of people to come and make their case. They may need that partial review just because the framework had referred to a regional spatial strategy that suddenly did not exist and could not be referred to any more, or because it was silent about a particular ingredient because the authority was encouraged by the DCLG not to put in something that the regional spatial strategy already had in it. Those are technical changes that will require a whole bureaucratic process to be restarted, when we could have a quite simple transitional arrangement.
I had rather hoped that the Government would say, “We will fix this, maybe not in the way that you suggested—but we absolutely understand that nobody wants to go through all that bureaucracy just for nothing, since it is a very expensive exercise. We will sort it”. I confess to being rather disappointed at this stage, but I beg leave to withdraw the amendment.
Amendment 147FG withdrawn.
Amendment 147FH not moved.
Clause 94 agreed.
Schedule 8 agreed.