Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

2nd reading
Tuesday 17th January 2023 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I declare my professional and personal interests in this matter as a chartered surveyor in the areas of planning, heritage and short-term lettings, and as a vice-president of the National Association of Local Councils. I am grateful for the briefings from NALC, the RICS and others. The speakers’ list for this Second Reading means that much of my thinking will go unsaid, for which noble Lords may be grateful. Nevertheless, this is a behemoth of a Bill. Although there is plenty on the broader aspirations of the Bill that I can support in principle, unfortunately time allows me to focus only on where the proposals appear to me to be defective.

I start with the proposals for combined county authorities, which it appears will be created by ministerial fiat without democratic input, with members of the authority having at best indirect local democratic accountability and the associate membership having none at all but potentially still with voting rights. I see local democracy being diminished by that.

On Clause 75 and long-term empty dwellings, a one-year trigger is not long enough to prevent unfairness to people with genuine good reason, such as executors dealing with a deceased person’s estate, properties undergoing renovation, or, for that matter, those properties which cannot be let because of poor EPC ratings or defective services—and all that assuming that there are no planning delays where consent is needed. In addition, the definition of periodically occupied dwellings in Clause 76 would very likely catch all sorts of unintended cases, and the proposal lacks proper evaluation of the problem.

On short-term lettings, I declare an interest. Under Part 12, I suspect that many would qualify as a business property. But even when so advised, building authorities frequently consider that they are under no obligation to request a review by the Valuation Office Agency, to which direct owner access is problematic. That is unreasonable and needs to be rectified. On registration, I am at least glad that the Secretary of State will consult first.

Despite the Government’s warm words about communities, there is little that fosters or promotes the role of parish, town and community councils, which was referred to by the noble Lord, Lord Stunell. There is nothing that deals with the community representation inequality in unparished areas, the absence of powers of general competence and the continued lack of resources for this sector. There is nothing that protects the social and financial investment in neighbourhood plans from being flouted by principal authorities or being further undermined by a street vote. Online meetings ought to be a general option, but they are precluded at the moment.

Turning to Chapter 3, on heritage assets, I declare that I am an owner of listed buildings. The new temporary stop notice proposals would be fine were it not for the complete lack of clarity about what works will be caught. Historically, many councils take the view that any alteration, minor or not, requires formal consent, but there is a fundamental unfairness in that approach, made worse by poor levels of resourcing and poor heritage competence. I could go on about unreasonable delays, unnecessary expense and impractical conditions, but I will move on.

On planning enforcement in Clause 107, I am curious as to the justification for extending the four-year period in relation to unauthorised works to match the 10 years for changes in use. The considerations are not the same. The four-year rule has been in place since 1947, and in this modern age we have far more surveillance facilities than ever. I question whether the change is of practical benefit, given council resources. We need more detail.

Part 10, on the proposed enforced lettings of vacant shops, seems to be an example of a poor grasp of the practicalities, the dangers of overriding commercial agreements, and the risks to local authorities and market sentiment. Shops are not kept empty for fun, and this measure displays little appreciation of the costs or consequences.

Noble Lords will expect me to comment on Clause 213 and the proposal to reserve the Secretary of State’s powers in relation to the Royal Institution of Chartered Surveyors. Noble Lords may well be aware that, long before the Bill was published, RICS had accepted the report of Alison Levitt KC into a purely internal matter. In actioning the vast majority of her recommendations, it then commissioned my noble friend Lord Bichard to review its governance and purposes. He reported last June; RICS accepted his recommendations, retained him as a senior independent governor and committed to five-yearly independent reviews henceforward. So what is the matter with that willing self-reformer? It is a politically neutral membership body constituted under a royal charter, with clear ethical, professional, technical and disciplinary codes, which operates globally and, above all, with independence. I suggest that “independence” here means freedom from interference of any sort, including political. Would the Minister agree that any such interference could of itself affect domestic and international perceptions of RICS and with it the reputation of this country as a safe jurisdiction for professionals?

Finally, given the assurances made by Lee Rowley MP in the other place, will the Minister agree to meet me and representatives of RICS, before Committee, so that we can understand the department’s grounds for this measure?

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Committee stage
Monday 27th February 2023 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I rise briefly in this debate to support Amendment 69 in the name of the noble Lord, Lord Shipley. When I was listening, I read it and I am actually quite surprised by what the Government are doing—the disapplication of the duty of allocate seats to political groups. It seems perverse to me that the Government would do this. We are going to bring in these county combined authorities, whereby we bring people together across large areas who were not engaged, were not involved—and we want people to participate in this. Where would you be if you were trying to join one of these county authorities and you thought, “Hang on here, I am from one political group and we control this council, but all the other councils are controlled by my political opponents. I can join here, but then I will be taken off all the committees.” Why would you do that? It just seems perverse. I would be really interested to see how the Government can justify this when the Minister responds.

I really do think that the Government need to go away and think about that. It seems only fair to me that, if you are going to bring a combined authority together and you have elected politicians in all those authorities that come together, if they are from different groups, they should have representation on the Executive. I cannot see why you would want to take them off. Surely, you would want to hear their views. They are from different parts. I know there are proposals for a combined authority covering Derbyshire and Nottinghamshire. I used to work up there, and that is a huge area. The thought that one group could be excluded from that because they were not of the same political group—the larger group there—is just perverse. I do not understand why the Government would suggest that and want to do that. I am really looking forward to the Minister’s response to justify this. I hope that, maybe, he may agree to take it back to the department and suggest that they have overstepped the mark and that it should be removed at Report.

[The Earl of Lytton (CB)]

My Lords, as this is the first time I have spoken at this stage of the Bill, I remind noble Lords of my various interests and activities. I am a chartered surveyor, a vice-president of the National Association of Local Councils, and a member of the Country Land and Business Association. Probably none of them really clashes with what I am about to say. However, I do have fundamental concerns about these CCAs. How is this extra tier going to be funded or how will it generate its own income, in whole or in part? Will they truly meet what the Minister referred to as the transparency and accountability test that he set in the previous group? Will those standards always be routed in democratic accountability and the norms and conduct to be expected thereby, or something else?

I relate to the point made by the noble Lord, Lord Shipley, about ever-greater centralism in the Bill generally. That is a disturbing trend, especially when this whole levelling-up Bill, if you like, was gazetted as something that was going be better for communities. I see the thing drawing away from everything I understand community to be, and recognised it as, when I was president of NALC. This seems to be moving in the opposite direction.

The lack of clarity and specificity, presented as a freedom of CCAs to organise and manage their own affairs to some extent, is another area which is not clear from the Bill. The real acid test is whether this will result in citizen confidence in what we are doing. It cannot be otherwise. This is not something we can do from the top down, saying, “Oh well, they’ll like it, won’t they?” This has to be rooted in confidence in communities and among the citizenry generally.

Specifically, on this clause, the associate members are a special area of what I see as potential democratic dilution. Voting or not, these associates will have position and influence in debate and the processes going on. Let us not get too hung up about precisely whether they will be voting, because they will obviously have a lot of important functions notwithstanding. But who might they be? One can think of all sorts of worthy individuals representing important sectors of the community, but what about a property developer? What about a telecoms or construction company executive, who might have a particular interest in being involved in a particular area, or an investor linked to a sovereign wealth fund? The list goes on. What about a pressure group? The real question is: do these pass the test of citizen credibility when looked at from that area, bearing in mind that this is a body that is going to add another tier to the process we have all become familiar with and, to some extent, used to?

Could the noble Earl give us some reassurance as to who these associates might be? There has to be some overarching principle that sits behind their appointment and the functions they are able to deal with. If not, we would be signing some sort of operational blank cheque to these bodies. I hope he will be able to provide me with an answer to that point, which concerns me very much.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, when I spoke earlier, I should have referred to my interest as a vice-president of the Local Government Association. I apologise to the Committee for that.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Committee stage
Monday 13th March 2023 Lords Chamber

There is huge merit in Amendment 70, albeit with the caveat that the noble Lord, Lord Foster, himself made on what actual voting percentages and so on should be. I do not underestimate the importance of those matters in democracy, but the principle seems absolute: the districts have to be at the table.

[The Earl of Lytton (CB)]

My Lords, I support Amendment 81, spoken to so eloquently by the noble Baroness, Lady Scott of Needham Market. In doing so, I draw attention to my vice-presidency of the National Association of Local Councils, which I had the privilege of serving as president for many years, and my current joint presidency of the West Sussex Association of Local Councils.

It is regrettable that, notwithstanding the status of neighbourhood plans as a material consideration in local planning structures, principal authorities often seem to be obliged to disregard them, despite having considerable agency in the production of these plans. I refer to the calling of referenda or, as sometimes seems equally likely, delaying of the calling, which I can only assume has sound reasons. It creates great problems, given that there is substantial commitment of time and no small amount of public money to the neighbourhood planning process.

As we move into other areas that will involve multiple local authorities, such as biodiversity net gain and water neutrality, I can see that it is perfectly legitimate for these to be dealt with at what you might call a superior level. But it remains absolutely essential that communities still have a voice, a view and a role in that particular decision-making format. If the Secretary of State’s comments mean anything when he refers to strengthening the role of communities, as I understood him to say some while back, it must be something other than lip service—something other than parishes and town councils being somehow left behind. When I say that neighbourhood plans are being disregarded, I think of the neighbouring parish to the parish in which I live, where precisely this has happened.

It is very important to understand the structure of town and parish councils, as alluded to by the noble Baroness, Lady Scott, with their knowledgeable, highly engaged and often very effective interventions in local planning processes through their structure of county and district associations as well as the individual parishes. They should not be underrated. They have access to resources you would not believe. I have come across parishes in which top planning consultants happen to be residents. These people are highly engaged, highly knowledgeable and should be listened to. Parishes have moved along massively in the past 20 or 30 years. They really are the only structure that represents the community at this level. When you think about it, there is no other authority that extends down to that level of where people really live and do things in their work/life balance. If people feel disregarded, as do many residents in my part of West Sussex, it bodes ill for engagement, cohesion and, ultimately, the efficacy of national policies. I would not want that to go unstated in the context of the Bill.

[Lord Shipley (LD)]

I rise to speak to Amendments 155 and 156 in my name. These are probing amendments because I think it is very important that the Government explain their intentions. Amendment 155 provides that non-constituent members of the combined authority are not able to vote, given their status, and Amendment 156 provides that associate members of a combined authority are not able to vote, given their status. On a previous day in Committee we addressed this issue, in part. However, the Government need to undertake some mature reflection about what is proposed here.

Giving a vote to somebody who is not a full member of a combined authority is unwise. My amendments provide that there should be no vote for anybody who is not a full member of the authority. The principle is that full members are voting members, and voting members are full members, but you cannot have full voting members when they are not full constituent members, as opposed to associate members, of the authority.

The voting structure between counties and districts as explained in the Bill would provide a route for resolving any impasse that might arise if votes were allocated on the basis of population. Of course, a county would have exactly 50% of the votes. If all the district councils voted against the county—one hopes it does not come to that—there would have to be some kind of system for a casting vote. The mayor would seem to be the way forward.

After reflecting on what we have been saying on previous days in Committee, to me it seems that district councils, which are responsible for planning and economic development matters, ought to be full members of a CCA. That seems to me to be the principle. It should not be at the discretion of the CCA, which does not have a district council member, to simply award a vote to that district council member when other district council members may not have a vote because, as the noble Earl, Lord Howe, said on the previous day in Committee, when giving a vote to one non-constituent member or to an associate member, it does not follow that other associate or non-constituent members would have a vote.

So this is a probing amendment. It is complicated; I understand that. When in due course we reach Report, I just hope that the Government will be prepared to examine the structure they have proposed here. I have come to the conclusion that they should permit district councils within a CCA area to become full members. At that point, those full members would have a right to a full vote under their own terms of membership. I hope very much that the Minister will be able to respond to that, so that we can get a better feel of what we need to do on Report to bring in further clarification on this matter.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Committee stage
Wednesday 15th March 2023 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I have added my name to Amendment 158. I declare an interest as a vice-president of the National Association of Local Councils; I am also the co-president of the West Sussex Association of Local Councils.

I remember clearly that we had a difficult meeting of the county association, in that the matters were contentious. It was dealt with online. I and my co-president went through the whole thing; all I can say is that it was entirely satisfactory. It was well organised from the word go and was well marshalled by the clerk of the association. The matter was carried off to everybody’s reasonable satisfaction; given that there were contentious matters, nobody complained.

I would just like to say that the world has changed. The world was changing beforehand; I was doing virtual meetings long before Covid came along. The fact that the technology was there and was sped up says a great deal about those who were responsible for getting things organised, particularly those in this House who organised things so that we could hold our proceedings virtually. It was enormously to the credit of those who seized the opportunity to do it.

However, if we are going to speed up Britain, one of the first things we will want to do is make sure that we make cost-efficient use of people’s time. The first bit of cost-efficiency is reducing road miles; we can start by decarbonising meetings. I am not very far from my local authority offices but I know that, by the time I have travelled five miles, found a parking space, probably paid for parking, crossed the road and gone into the council chamber—I am not a serving councillor; I just use that as an example—it will have taken me a good half an hour, with another half an hour on the way back, thank you very much. If you want busy people to devote their time and energy, you really have to make efficient use of their time; otherwise, they disconnect.

The other important thing here is inclusivity; other noble Lords and noble Baronesses have mentioned this. We are dealing with people who may be infirm or have mobility difficulties. This may involve young people in households with schedules that do not match; they may work away so it is hard for them to get back in time with normal commuting. Of course, you also have parents who are looking after young people and cannot get away. They cannot detach themselves from their household, never mind the infirm or those with other issues.

On the grounds of cost-efficiency and inclusivity, these amendments are very powerful. I thank the noble Baroness, Lady McIntosh, for introducing this group and the noble Lord, Lord Lansley, for taking us through the history of where this issue was. I say again: things have moved on. We need to look at a modern, efficient way of working. This amendment does not say that you would have to have virtual meetings; it gives local choice on the matter. How come a parliamentary Select Committee can operate virtually if it decides that that is convenient, as I think is still the case, but a parish council—or a planning committee, for that matter—somehow cannot? This is inconsistent and makes no sense, so I very much support these amendments. I hope that the Minister, the noble Earl, Lord Howe, will consider them carefully and reflect on them; I know that he is an enormously fair-minded man when it comes to these things.

[Baroness Pinnock (LD)]

This issue is part of a threesome that we have debated this evening: local democracy; fiscal and electoral decisions; and, now, how we hold meetings. How is it that Westminster can dictate how local councils should conduct themselves? That is the question I want to ask. I know that they deal with potholes; actually, I have a plan for potholes. Can we have migration of potholes? Do noble Lords think that would help? It seems to me that these amendments have a lot of merit; I will say why.

The first issue is travel. The noble Earl, Lord Lytton, raised this but only in relation to going a short distance. In their wisdom, the Government have created two new unitary authorities, which start their life in April. North Yorkshire is one. If you live in Selby or are elected to represent Selby, in one part of North Yorkshire, you now have to travel 56 miles to get to a council meeting in Northallerton. That is a 112-mile round trip to get to a meeting. You have to ask yourself: is that an efficient use of anybody’s time, and does it contribute to our net-zero ambitions?

Then there is Somerset, which Members of the Committee may believe is a smaller county, but if you live at one end, in Frome, and the county hall is in Taunton, at the other end of the county, that too is 56 miles and a 112-mile round trip. That is not cost effective or efficient in anybody’s life. If you live in Yorkshire, especially North Yorkshire, and you have to go across the dales or the moors in winter to attend a meeting, you know that sometimes it is simply not possible. That is one reason.

I hope the Government will take up the suggestion by the noble Lord, Lord Lansley, of bringing forward a government amendment, either shortly or at the next stage, to deal with this. As the noble Lord said, it is about efficiency. Virtual meetings lower costs and enable more people to get involved. If we are interested in local democracy, as I am, the more people who can get involved and engaged in decision-making, the better.

My final point, well made by my noble friend Lady Scott of Needham Market, is about the engagement and involvement of people who are otherwise excluded from being councillors because of either caring responsibilities or lack of transport. If you do not have a car in North Yorkshire, I do not know how you get to Northallerton. Maybe the noble Baroness, Lady McIntosh, can tell us, but I think it might take a couple of days.

For all those reasons, it is really important that if we want to reinvigorate our local democracy—which is essential if we are to narrow inequalities, which is at the heart of the levelling-up process—we need more people to be engaged. If we want more people to be engaged and involved, we have to enable it by letting councils decide for themselves whether they want virtual meetings. I fully support the principle behind all these amendments.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Committee stage
Wednesday 15th March 2023 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, my name is added to some of the amendments in this group, and I would like to speak very briefly to some of them. I thank the noble Baroness, Lady Scott of Needham Market, for having introduced her amendment so eloquently.

I recognise several of these from the time when I had the privilege of being the president of the National Association of Local Councils, and of the then combined Sussex Association of Local Councils. I know just how disruptive these conflicts can be. They can be between the chairman and councillors, between other councillors, or councillors and a clerk, or it can be something that a councillor is doing externally to the work of the parish. These things do need to be dealt with, and if the monitoring officer is not in a position to call order, these things have a habit of festering. I know just how disruptive they can be to the entire process, so I support that one very much.

I support also Amendment 160 on the dependants’ carer’s allowance, and in particular the review of neighbourhood governance. The noble Baroness, Lady Scott, referred to neighbourhoods and neighbourhood planning, and I think it is a matter of vital consequence, particularly as there seems to be a certain frequency of neighbourhood plans not being respected by the principal authorities. If we do not have something that neighbourhoods feel they can really aspire to and can be made to stick, what is the motivation for them to get engaged in the first place? Are we delivering something that is really talking about communities and supporting communities in what they do and their aspirations, or is it some sort of fig leaf? I hope it is not, and I think there should be this review so that we can see where things are going. I certainly agree with the power to pay grants to parish councils. This is something that goes back a long way—several years.

I did not put my name down to one other amendment that I should have—that was Amendment 164—because the general power of competence for parish councils certainly goes back into the mists of time and was a live issue during my period as president of NALC. Again, this goes back to the question of whether parish councils can demonstrate to their councillors, for all the time and effort that they give voluntarily, and the fact that they are spending public money, that they are going to be able to drive forward their proposals within their area of competence. This is not to say they should be in conflict in any way with principal authorities, or anything like that, but, within their remit, why can they not have the general power of competence? I can see no good reason not to have it. For those reasons, I support these amendments. The only one I have not mentioned is Amendment 163, on:

“Financial assistance to church or other religious bodies”,


because I really felt I did not have the competence to make any comment on that.

[Lord Blunkett (Lab)]

My Lords, before I speak to the amendments tabled by the noble Baroness, Lady Scott, could I make an appeal to the usual channels that, given that there is a major problem this evening in terms of transport, we are mindful of that in terms of how long we sit? Only in this House—certainly not in the House of Commons—could we be here with the difficulties that are experienced outside and, while I realise we have got to try and make progress on Committee, I appeal for the exercise of a degree of common sense.

In speaking to the amendments to which I have put my name, I want to make a broader point. When I was leader of the city of Sheffield, with its population of 560,000, I was not always mindful of the needs and the importance of the parish and town councils that lay to the north of the city and which had previously been in what was then the old West Riding—that is, Bradfield, Ecclesfield and the town council in Stocksbridge. It struck me much later, as a declared communitarian, that this was a big mistake. The more that we devolve and ensure that we make decisions and delegate decisions as close to people as possible, the more we will ensure that we protect and reinforce our democracy. Town and parish councils are the building blocks on which the broader decisions are taken by county and metropolitan authorities and, here in London, by the boroughs, the GLA and the mayor.

As we move to greater devolution, which was debated in the previous business this evening, we must take into account that, while elected mayors and mayoral combined authorities are the way forward in terms of infrastructure, investment and devolvement of powers from central government, this will not succeed unless people feel an affinity and are engaged with their community and neighbourhood in the cities and, in rural areas—of which I have had experience in the last 20 years—with their parish and town council.

These amendments are not just technical amendments relating to the powers that should exist with parish and town councils. They are about the reinforcement of democratic representation by local people and the investment in community facilities, including religious facilities and institutions where it is possible to define sensibly what that investment is for. I imagine that the Government will want to reflect on this. It could be in heritage. It could be, as has been described by the noble Baroness, Lady Scott of Needham Market, the community facility that in so many parishes and small towns across the country exists only within the local church. I did apologise to the annual conference of parish and town clerks for having been a bit centralist in the past, so I might as well put that on record tonight. A sinner who comes to understand is worth three of those who have not understood the mistakes that they have made—so there we are.

There is a very real issue here that the Government could deal with very simply and easily and, as has been described, where there are contradictory pieces of legislation—Section 137 was mentioned—we could set the record straight. We have moved on a lot since the Redcliffe-Maud Royal Commission’s proposals and the 1972 and 2003 Acts. Life has moved on. There is a greater consensus now about devolution and about subsidiarity—I never could say that word without losing my teeth. We have an opportunity on the levelling-up Bill, very simply and easily and without a great deal of fuss, to put this right on Report.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Committee stage
Monday 20th March 2023 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I will get the guilt off my shoulders through your Lordships’ provision of the confessional: I declare an interest as co-owner of a second home in the West Country and of two short-term let properties in the same area. All, like the house I live in, which is in another part of the country, are legacies of estates that have been broken up and whittled down. Both areas have important family historical and indeed, in some cases, national historical associations.

Having declared that, I ought also to declare to the noble Lord, Lord Foster of Bath, who mentioned the Built Environment Committee, that I was, until the latter part of January, a member of that committee, and very privileged to have been so under the chairmanship of the noble Lord, Lord Moylan, who I am pleased to see in his place, and before him, the noble Baroness, Lady Neville-Rolfe. So I am familiar with the matters that were brought before us. However, I shall leave a lot of that to one side because there has been a bit of disaggregation in the groupings here. We have group 10 coming up, in which aspects of this will recur, and I find that quite difficult to deal with: I shall try to avoid getting up then and saying the same thing all over again and boring your Lordships.

While I have involvement with both normal assured shorthold tenancy properties and short-term buy to let, I certainly do not have anything to do with keeping property deliberately empty: that would be complete anathema to me, and I say so as somebody with professional training: I am a chartered surveyor and I know that all that happens with empty properties is that they deteriorate. They are much better occupied and lived in or used in some way.

I agree with the general premise that residential properties should not be deliberately kept empty for no good reason. I know that in some areas—the City of Westminster is one—there was a thought that foreign investors were buying up high-end residential accommodation and keeping it empty under the premise that perhaps it was less valuable if it had been previously occupied. It takes all sorts, but that is a particular situation. I support the noble Baroness, Lady Hayman of Ullock, in her Amendment 166 because there is a great deal of speculation about how many empty properties there are and where they are. They are not always in the places where people want or need housing and have to live and work. So, first and foremost, there is a distribution problem, along with a numbers problem. We need to sort that out, and there needs to be better data on that.

I would go further and suggest that the reasons why a property might be empty need to be understood before we set about making dramatic changes, either to the amount that is levied or to planning, although I take the point made by the noble Lord, Lord Foster, that something probably needs to be done in some of the areas that the noble Lord, Lord Shipley, referred to—the hotspots. They are not actually everywhere; they are not in every town and city; they are in defined places. Even those who particularly object to the idea of second homes and holiday homes altogether on principle recognise—and the data seems to show—that these are in quite specific areas. They are not necessarily in holiday locations at the seaside; they can be in the middle of cities and in parts of Greater London. We need to identify that.

We should not underestimate the inventiveness of those faced with a surcharge, any more than we should fail to consider the equity of a surcharge where there is a genuine reason the property is empty. The noble Baroness, Lady Hayman, referred to that and I use the example of the Ds: death, disrepair, dispute, debt, decarbonisation and, of course, redevelopment. Sorry, “redevelopment” is not a D, but noble Lords will get my drift.

Another aspect is that if there are to be additional charges, is that for the purpose of rectifying some particular, identifiable ill or mischief that is occurring, or is it just another tax? If it is just another tax and it is going into some jolly old pot, I am not particularly keen on that. There needs to be some degree of hypothecation. If there is a demonstrable case—for instance, that empty properties affect affordability in a locality or are adversely affecting incomers who might be economically active—the tax yield generated should perhaps be devoted to that or allied purposes and not put in some general pot. Presumably the case needs to be made.

I agree that ultimately, subject to some sort of national framework and means of analysis, the decision should be for the local community to put in place—and not necessarily be dictated from on high. The authorities, having made the case, must accept that the principle stood behind that is binding on them; otherwise, we risk a rather unedifying and opaque state of affairs, where the power is invoked for one reason but implemented for some entirely different objective altogether, and I would not be keen on that. We do not need a knee-jerk reaction to all that. There needs to be a consistent methodology for assessing the nature of empty second properties or short-term letting, and the detrimental effect these are having.

The noble Lord, Lord Foster, gave a graphic account of the issue, which I know from—

[Lord Foster of Bath (LD)]

Before the noble Earl moves on to another point I raised, could I ask, through him, for the Minister to perhaps confirm that even in the current legislation as proposed, it will be possible for councils to add a premium on the council tax for empty properties? It would be for the council to determine how that money is used; for example, my own local council has already a debate on this issue and proposed that the vast majority of additional money raised will go towards the building of more affordable homes in the area—to address the problem that is now being created because of the empty properties and short-term lets.

[The Earl of Lytton (CB)]

I thank the noble Lord for his intervention, because that is exactly the point I am making about having a degree of hypothecation. In other words, it should not just go into the general purposes fund. I hope the Minister will comment on that, because there is a question of trust and transparency in this. If these things are to be robust, they will need that.

From my observations, I know that what the noble Lord, Lord Foster of Bath, said about the instances and the impact in some of these hotspot areas is true. However, we need a bit more data to get the visible, empirical facts. The noble Lord, Lord Blunkett, referred to that, and I entirely agree with him. We also need to identify the likely economic outcomes of certain actions. Letting platforms were referred to; we need an analysis of how they operate for some bits of businesses but not others, because they are doing lettings direct or whatever it may be, to get some idea of how that is functioning.

There is a bit of incoherence here. For a while, conversions into residential accommodation in rural areas were often subject to the condition that they could not be occupied full-time. They had to be occupied, effectively, as holiday accommodation. Usually, they could be occupied only for something like 11 months of the year continuously, because local authorities did not want to give consent for new, independent dwellings in the countryside; there was an objective not to add to them, which I understand.

When I attended a meeting on second homes at Exmoor National Park, it was asked why there was a reduced council tax assessment for people with second homes. It transpired that only by having the bait of self-declaration could they identify how many second homes they had in the area, so that is how they did it. I say incoherence, because one really feels that the world has gone mad in some of these situations.

There is a good deal of misinformation about what is perceived to be the vast profitability of short-term lettings. When I had the privilege of being on the Built Environment Committee, I ran a little exercise, which established what I knew: that I would be better off in headline income letting full-time on an assured shorthold tenancy. However, that would probably be not to a local person but to some writer, artist or someone who wanted a nice location. The real reason behind this is that, if you are dealing with an old stone cottage which requires constant maintenance and a lot of refitting—never mind that you may have energy issues and things breaking down; things go wrong in old cottages more than they do in new ones—you are constantly in and out. The only way you can keep control of that is short-term letting, because you can take a week out and get in there and fix the boiler and all the other things that have fallen apart. It is really not for the faint-hearted.

When you compare the weekly headline rents for short-term holiday lettings with those of an ordinary assured shorthold tenancy, you are not looking at like for like. You are not dealing with fully serviced accommodation, where all the linen and services are paid for, and where somebody just walks in and all they have to do is buy their own food and go, with all the cleaning and everything else being done in-between. All that costs money. One of the greatest litmus tests of health and well-being in these rural areas is whether you can get a cleaner or someone to fix your windows. That is the real test of what is happening in the economy. With that, I will sit down and wait for group 10.

[Lord Moylan (Con)]

My Lords, it is a pleasure to follow the noble Earl, Lord Lytton. I will speak briefly and narrowly to the point made earlier by the noble Lord, Lord Foster, in which he argued for a national registration scheme rather than one which, as the noble Earl said, the Built Environment Committee said should be available locally and at local option. The noble Lord’s reason was that having a national registration scheme would make it easier for the Government to gather large amounts of data. That is a very weak reason for what would be an astonishing intrusion into privacy and the rights of property.

I believe the noble Lord, Lord Blunkett, said that a national scheme was preferable because it could be implemented more quickly than one implemented by a local authority.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Committee stage
Wednesday 22nd March 2023 Lords Chamber

[Lord Best (CB)]

My Lords, I support Amendments 441, 443, 444 and 446 on the theme of short-term lettings, tabled by the noble Lord, Lord Moylan, the esteemed chair of your Lordships’ Built Environment Committee, on which I am honoured to serve. I also support the amendments from the noble Lord, Lord Foster of Bath, on data sharing and safety.

I share the worries relayed very forcefully in submissions to our Built Environment Committee over the loss of long-term rented homes because of landlords switching to short-term lettings—propelled not least, it seems, by a tax and regulatory regime that favours the latter. As the noble Lord, Lord Moylan, has said, our debate last Monday covered a lot of the issues that have been debated in our committee and are now the subject of these probing amendments. Noble Lords gave much support on Monday to earlier amendments that advocated a registration or licensing scheme—the two could look very similar. The Built Environment Committee favoured local discretion in introducing a national scheme locally, since some places have virtually no short-term lettings. It would be very bureaucratic to have a scheme applied there. The Government are also committed, as well as to a registration scheme, to taking a regulatory arrangement forward, and I hope that we can hear news from the Minister of a timetable in this regard.

In addition, there was support on Monday for the proposition from the noble Lord, Lord Young of Cookham, and the noble Earl, Lord Devon, endorsed by the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Foster of Bath, for new use classes, which would enable planning powers to be used to control numbers of short-term lets in each local authority. The Government are consulting on that proposition, which personally I would favour; it deserves attention, alongside some tweaks to remove perceived incentives in the tax and regulatory frameworks, which currently appear to encourage landlords to end longer-term lets and switch to Airbnb-style short-term rentals.

I add to the debate one extra ingredient: the international dimension. In this digital age, the Airbnb phenomenon for accommodation, like Uber for transport and Amazon for retail, is ubiquitous and has caused concern in sectors in most other advanced economies. Many different regulations have been applied in other countries, particularly in tourist hotspots. A report from the Property Research Trust last year, Regulating Short-Term Rentals: Platform-based Property Rentals in European Cities, describes numerous efforts to face this challenge. Amsterdam has a strict permit system, with fines of about £20,000 for failure to comply. Barcelona has banned all short-term rentals, even in private homes. In Ireland, those areas of the country designated as rent-pressure zones have tough restrictions. In parts of the United States, such as San Francisco and Boston, only properties with the host living there during the stay are allowed to be operated as short-term lets. This international perspective demonstrates that we are not alone in facing this problem. We have a greater problem of scarcity of rented housing than most of our neighbours, which suggests that an effort to get to grips with the downside of short-term lets may be overdue here.

I have one final point. Amendment 444 reflects the Built Environment Committee’s firmly held view that new arrangements should not deter any home owners from letting spare rooms on a short-term basis. The current tax-free position, allowing up to £7,500 per annum, encourages the use of underutilised assets and brings extra income that can help with rising mortgage costs. The amendment emphasises the value of continuing that favourable tax regime for owner-occupiers in underoccupied homes.

I hope that the Government will be bold in following the lead of many other countries. We need to address the pain and disruption being caused in particular locations by the growth of short-term lets that replace badly needed longer-term rented homes. I support the amendments.

[The Earl of Lytton (CB)]

My Lords, I too support these amendments, particularly the lead amendment in this group, moved by the noble Lord, Lord Foster of Bath, about the gathering of better data. I will try not to repeat what I said last time, other than that I have some skin in the game here in the sense that I jointly own properties that are let on assured shorthold tenancies, as well as short-term holiday let properties.

This is a multifaceted issue. Second homes may, at other times, be part-time holiday lets. Holiday lets may be for leisure trips one minute and for business purposes another, and they may alter from season to season. They may be for a couple of days at one point, or a couple of weeks or three months at another point. It is very difficult to make a one-size-fits-all assumption when you are dealing with short-term lets, holiday lets or even assured shorthold tenancies.

The platforms are also equally variable: it could be booking.com—a very common one—Airbnb, an owner’s own website, word of mouth, a card in the window of the local convenience store, or a repeat booking. They are all means of people getting in contact. I know this for a fact, because the only one that does not affect the properties that I am involved with is Airbnb as we do not use that platform, but I know lots of people who do. In respect of what the noble Lord, Lord Best, said, the thing about a platform such as Airbnb is its slickness and convenience for users—both lessors and prospective occupiers. That has really made it a benchmark worldwide phenomenon and has driven its operation and popularity as much as any wish to shift from one to the other.

I contacted a local estate agent down in the West Country—not one I use but I knew somebody in the place—and asked them what was happening with short-term lets as against assured shorthold tenancies, for example. They deal with a lot of such tenancies; they are one of the main agents in that area. I was told that, while there is considerable demand for assured shorthold tenancies—often 20 or 30 applicants for each—there were very few cases of an AST being terminated for the purpose of moving the property to a short-term letting. There was nearly always some other reason for ending the AST: it was a pot of money that the owner wanted to put into some other investment, such as extending another house or helping a child with a house purchase in another part of the country.

I do not know, therefore, how frequent this supposed transfer is. Organisations such as Shelter say that they have lots of people coming along saying that they have been kicked out because the owner wanted to do an Airbnb-type letting, but I do not know whether that is an essentially urban phenomenon—it may be—or more general. I just do not think that we have the data. That goes back to the point that the noble Lord, Lord Foster, made: we need better data.

I would worry about attempts to jump to conclusions about what we do here. I follow the noble Lord, Lord Moylan, the chairman of the wonderful committee of which I am a former member, but I worry about attempts to jump to conclusions, particularly because we have not had the results of the Government’s own thinking on this, and particularly when applying these user types to a range of properties that equally has a very considerable breadth—from a shepherd’s hut at one end through to a static caravan and to a permanent dwelling. Some may be suitable only for seasonal use: I think of the very large caravan parks that—“decorate” is the wrong word—“appear” in places such as the Pembrokeshire Coast National Park. I cannot say that I regard them as beautiful or a benefit to the environment, but they clearly fulfil a seasonal requirement.

There are some settlements—some seaside places and holiday hotspots—that are built on tourism. That is what they are there for, almost, and the fact that they empty themselves for parts of the year is not a particularly modern phenomenon. I remember when as children we used to go on holiday to a part of Cornwall on an annual basis, and just about every other house was advertising bed and breakfast. Those bed and breakfasts may have morphed into Airbnb, or a short-term let on some other platform. Noble Lords have mentioned that there are clearly problems associated with an imbalance of property uses, but as the noble Lord, Lord Moylan, confirmed—I raised this point on Monday —these are not consistent, geographically or by type. They tend to be associated with hotspots of one sort or another. We need to understand the dynamic.

The noble Baroness, Lady Hayman of Ullock, picked up on the point I made that we need to flesh out a great deal more what is happening here. If we do not know the purposes and drivers behind what is happening in any given instance then we are not going to get near to creating viable policies for the purpose. Let us make no mistake: this phenomenon is undoubtedly causing problems in certain areas. We had evidence of that in the Built Environment Select Committee when I was privileged to serve on it. What is required here is a degree of localised assessment, but based on consistent, nationally accepted data-gathering principles and analysis, so that we get a proper basis for dealing with this, and can look at and compare like with like and not be comparing apples with pears.

I entirely endorse Amendments 445B and 447, tabled by the noble Lord, Lord Foster, because I know for a fact how very important safety is within a property, particularly where there is short-term turnover of occupancy and people are not particularly familiar with the property. It is absolutely important that they are safe, and that things such as batteries in smoke detectors are checked annually and that combustion appliances have proper tests and are serviced. They should be safe and safety checked at regular intervals.

The noble Lord, Lord Foster, referred to the business of trying to get at the data on this through council tax records. He is absolutely right that this is a pretty deficient way of dealing with it. I am going to tell a tale out of school here. My wife has written on numerous occasions to the billing authority in relation to a property that has been used for holiday letting for many years, saying, “Look, this is being used pretty much year-round as a holiday unit. Should it continue to be in council tax?” To which answer there came none, and why would there? Why would any clever finance officer of a local authority decide that he was going to forgo council tax—which he collects and keeps in his kitty, thank you very much—and be the collecting agency for business rates for central government, to be redistributed according to whatever the normal formula is? The noble Lord, Lord Foster, mentioned one area where the thing is skewed; that is a second area where there is a perverse incentive not to get things in the right slot.

It gets worse. Under the “check, challenge, appeal” process that business rates operators have to deal with when dealing with the Valuation Office Agency, someone has to formally claim the property for the purposes of being its agent before they can even get the process in train to change the assessment. That is not a sensible way of doing it either. We are completely at sea on this and really need to sort it out.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Committee stage
Monday 27th March 2023 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support all the amendments in the group and will speak briefly in favour of Amendments 188 and 241, on reducing health inequalities and improving well-being. These excellent amendments pick up the theme of Amendment 28, ably spoken to by the noble Baroness, Lady Willis of Summertown, and to which I added my name. All of these amendments emphasise the importance of walkable neighbourhoods and safe walking and cycling routes in nature to improve health and well-being, which is one of the themes of this debate.

I declare an interest as a member of the South Downs National Park Authority, which is collaborating with local health providers and volunteers to encourage not only disadvantaged groups but individuals with specific health challenges to make better use of the downs.

There is an increasing body of evidence to show that access to nature and green spaces has a positive impact on health and well-being outcomes. It can help to address a range of mental health issues, such as depression, anxiety and loneliness. The Government themselves have accepted the health benefits of access to nature in pursuing the idea of social prescribing pilots, which also have the benefit of cutting back on expensive and often ineffective drug prescriptions. The NHS has supported social prescribing being rolled out on a local basis, but this can work only if there are the facilities and infrastructure to expand access to nature and walking therapies. These amendments would enable joined-up government policies, in a way that is all too often lacking. That would require local planning authorities to have special regard to the desirability of 20-minute neighbourhoods and access to nature.

This is not just an issue of health outcomes; it is also fundamental for inequalities. In her earlier contribution, the noble Baroness, Lady Willis, quoted a Public Health England report which says that

“the most affluent 20% of wards in England have five times the amount of parks or general green space compared with the most deprived 10% of wards”.

We know that those living in the poorest and most nature-depleted areas also suffer the impact of premature death and illness from air pollution.

There is an urgent need to rescue abandoned and neglected community areas to recreate green space and plant more trees. There is also a need to create green pathways and networks that can lead out to larger areas of green parks and waterways. We should encourage communities’ rights to reclaim unused and derelict land for microparks and growing spaces to feed their neighbourhoods. This should be built into the planning system in the way that these amendments require, and I very much hope that the Minister will feel able to support them. If the Government do not feel able to provide that support today, I hope that the noble Lords, Lord Crisp and Lord Young, will return to this on Report.

[The Earl of Lytton (CB)]

My Lords, I feel compelled to say, “Hear, hear”, every time a noble Lord gets up to speak on this. As a chartered surveyor, I am, in effect, a witness of evidence to the fact here, having spent a very large part of my career looking at and advising on older buildings, defective modern buildings and everything in between. I support all the amendments in this group, which are at the heart of what we know needs to be delivered by way of appropriate housing standards. I commend the noble Lord, Lord Crisp, for his untiring efforts on the healthy homes standard; he deserves all of our appreciation for that.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Committee stage
Tuesday 18th April 2023 Lords Chamber

[Lord Bradley (Lab)]

My Lords, I will speak to my Amendment 219A, which has been attached, rather inelegantly, to this group. I fully support the amendment on housing for older people so eloquently moved by the noble Lord, Lord Best. I declare my interests in the register, particularly as chair of council at the University of Salford.

My amendment is straightforward, but the issue is important. However, I will be brief. The amendment seeks to add a requirement that, in the development of local plans, the housing needs of students are taken into account by fully consulting local higher education providers and housing and planning authorities in that process.

We are all aware that there is a significant undersupply of student accommodation across the country—this has been widely reported in the media throughout this academic year. It is a particularly acute problem in our cities, including Manchester, where I live—but there are also reports from Durham, Bristol, Glasgow, Brighton, Nottingham, London and many more. The student accommodation charity, Unipol, reports that UK student housing is reaching a “crisis point” as bad as in the 1970s. Just before Christmas, Property Reporter said that the student rental market is reaching “breaking point”. Furthermore, purpose-built student accommodation specialists Cushman & Wakefield report that new-build schemes are failing to keep pace with demand, at the same time as supply is being lost from the private rented sector, with many landlords switching from student accommodation to rental for professionals because of a more compelling business case, lower management requirements and more consistent demand.

As a consequence, we know that students are forced into accommodation they cannot afford; are forced to live far away from the university they are attending, with consequential higher travel costs; or are choosing unsuitable, or even unsafe, accommodation. This has a detrimental impact on the health and well-being of students, as well as significantly undermining the overall student experience. The situation has clearly been exacerbated by the current cost of living crisis.

The Government have made their position clear. In response to a Written Question in the other place, Robert Halfon, Minister of State for Education, said:

“Neither the Department for Education nor the Department for Levelling up, Housing and Communities have made … an assessment”


of student housing. He went on:

“It is for local areas, through their Local Plans, and in response to local needs and concerns, to determine the level of student accommodation required in their area. Universities and private accommodation providers are autonomous. The department plays no direct role in the provision of student residential accommodation, whether the accommodation is managed by universities or private sector organisations.”


That is absolutely clear, and we must therefore consider local solutions to the problem.

If we look across the country, we see examples of good practice, such as in Nottingham, where the city’s student living strategy explicitly involves collaboration between the universities and the local council to ensure that Nottingham realises the many socioeconomic benefits that students bring, without putting pressure on the local housing stock. But such collaborations can be more difficult in places such as Greater Manchester, where you have many higher education providers and 10 district planning and housing authorities trying to co-ordinate the demand and supply of accommodation of many thousands of students.

The student union in Salford, ably led by its president, Festus Robert, and working closely with student unions across Greater Manchester, have been in discussions with the Mayor of Greater Manchester to try to address this problem. However, this complication could be overcome through this amendment. It will introduce a statutory requirement at the local level, with the development of local plans, to ensure the collaboration of all interested parties—principally, universities and local authorities—to take into account the housing needs of the students when they are developing their local plans.

This important issue must be tackled, and I hope that my amendment will ensure that it is. I also hope that the agnosticism of certain noble Lords will be overcome by my argument. It clearly chimes with the purpose of the Bill and, more broadly, with the devolution agenda. In that spirit, I hope that the Government will support it today.

[The Earl of Lytton (CB)]

My Lords, I will speak to this group of amendments, doing so as a property professional. For very many years, the development process, housebuilding and the construction process have not been far from my daily life—at any rate until a few years ago, when I ceased to do that sort of thing on a day in, day out basis throughout the week.

I will start with the point raised by the noble Lord, Lord Lansley, in his superb explanation of the matter. I will throw some light on that, because, whether you have targets or whether you make an allocation at local level, none of these of themselves build a single unit of residential accommodation. There is a stage in between that is occupied by a commercial cohort of developers and housebuilders. I have worked for a few—although not recently—so I have no intrinsic bias against developers and housebuilders. They are, after all, the delivery system whereby the government targets will be met and, ultimately, one assumes, the affordability and availability of housing for those who need it and wish to occupy it will be delivered. However, they control the build-out rate—the more so if they control large strategic sites.

So far as I have a current interest, it is one that occupies an area within a local authority within which I reside and involves sites that are not many miles from where I live. To give one example, there is a site 6.5 miles from where I live, next to a major town, with consent for 2,700 homes. The consent was granted some years ago. Material commencement within the normal three-year period was made to construct the access. So far, the school—which I am told is fully occupied —and about two dozen houses have been built, but not much else. So, although it may fall short of what I might call the Letwin definition of land banking, it is an expandable pipeline of balance sheet assets that is not about delivery as such, but rather about managing profit and income streams.

It is very easy to make that material start and preserve your consent more or less in perpetuity. There has been some recent case law where that has wobbled a bit, but I will not go into that.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Committee stage
Thursday 20th April 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I guess I should rise at this point to follow with pleasure the noble Baroness, Lady Randerson, who made a point that I was going to make. I note that in Scotland, they are going for 2025. This is a case where England urgently needs to catch up. I will primarily speak to Amendment 482. It is very simple:

“for “30” substitute “20”.

This is a “20 is plenty” amendment. I am going chiefly to speak to that, but I note that this is a very neat and fit group of amendments.

We express Green support for Amendment 240. We obviously need to get active transport joined up to make preparation to make sure that it happens. Also, we support Amendment 486 from the noble Baronesses, Lady Pinnock and Lady Randerson, on disability access in railway stations. Of course, we broadly agree with electric vehicle charging points. However, on the interaction between these two issues, we have to make sure that where vehicle charging points are installed on roads, they do not make the pavements less accessible, particularly for people with disabilities, with strollers and other issues. The space should be taken from the road and cars and not from pedestrians.

Returning to my Amendment 482, this would make the default general speed limit for restricted roads 20 miles per hour. Among the many organisations recommending this is TRL, formerly the Government’s Transport Research Laboratory. Going from the local to the international, there was of course the Stockholm Declaration, adopted by the UN General Assembly in 2020, which recommends 20 miles per hour speed limits where people walk, live and play. That is the global standard that the world is heading towards, and we really need to catch up on this. I can see much nodding around your Lordships’ House. I am sure many noble Lords know that pedestrians are seven times more likely to die if they are hit by a vehicle travelling at 30 miles per hour compared with 20 miles per hour. If they are aged 60 or over, they are 10 times more likely to die when hit by a vehicle at 30 rather than 20.

Noble Lords might say this is the levelling-up Bill rather than general provision, but to draw on just one of many reports that reflect on this issue, Fair Society, Healthy Lives: the Marmot Review says that targeting 20 miles per hour zones

“in deprived residential areas would … lead to reductions in health inequalities”.

However, there is, of course a problem. The Marmot report was looking within the current legal framework for travel, but it is extremely expensive to bring in local areas of 20 miles per hour speed limits. There needs to be local signage and individual traffic regulation orders, and then presumably, if there is to be some hope of compliance, there needs to be an education campaign. All of those things cost money, and councils in some of the poorest areas of the country will find it most difficult to find those funds.

If we think about some of the other impacts, as well as road safety, 20 miles per hour speed limits where people live, work and shop reduce air pollution and noise pollution. These are things that particularly tend to be problems in the most deprived areas. The wonderful 20’s Plenty for Us campaign that has been working on this for so long, and increasingly effectively, notes that there is a 30% reduction in fuel use with “20’s plenty”, so it saves people money as well—something of particular interest to the most deprived areas of the country.

This is a very simple measure, by which we could catch up with other nations on these islands and really make an improvement to people’s lives, health and well-being. I have focused on the practical health impacts, but the reason this group of amendments fits together so well is that, if you want to encourage walking and cycling, then ensuring that the vehicles on the road travel more slowly is a great way to open up the entire road network to cyclists and walkers. Of course, it could also build communities: the reduction in noise pollution gives neighbours more of a chance to chat over the garden fence and build those communities that we desperately need.

[The Earl of Lytton (CB)]

My Lords, my name is attached to Amendment 470 in this group, and it is a particular pleasure to follow the noble Lord, Lord Berkeley, on this. I would like to say a few words about the question of footpath access that he addressed initially. It seems to me—and it was amply spoken to by the noble Lord, Lord Young of Cookham—that this is part of the essential infrastructure that enables people to have what used to be, and I hope still is, known as multi-modal travel opportunities. In other words, one has at least some sort of menu of options, and one is not just obliged to be in a motor vehicle. This goes to the heart of what we do about making sure that developments are both related to existing settlements, where these facilities are available, and do not become detached from that unless there is some particular reason—and then only when this infrastructure is put in. So I am very much in favour of that.

--- Later in debate ---

[Baroness Hayman of Ullock (Lab)]

My Lords, Amendment 243 is in the name of my noble friend Lady Taylor of Stevenage. Amendments 244 and 246 in this group are both also in her name. I shall briefly speak to them and make some comments on some of the other amendments in this group.

My noble friend’s Amendment 243 asks the Secretary of State to

“publish a report of a review of Local Heritage Lists and the results of the 2018 review of the non-statutory guidance on Assets of Community Value”.

Amendment 246 also refers to assets of community value—ACVs—asking for draft legislation to be published to reform the processes.

Amendment 244, which is on a slightly separate issue, is about decision-making on temporary stop notices. The amendment says that, when making a decision on the correct recipient of a temporary stop notice, the authority should have regard to the tenancy status of the occupier and their level of responsibility for any works on the property. It is pretty straightforward as to why we have laid this amendment, so I shall be brief. We believe it is really important to guard against a situation where the wrong person may be held accountable for works on a property for which they actually have no responsibility whatever. The Local Government Association was very clear that we should make this point during the debate on the Bill. We believe that other factors should be taken into account before any notice is issued, because we really need to make sure that the correct person—the person liable—is the person that has been identified. It would be very helpful if the Minister could provide some information on how the Government can ensure, in future, that this is what happens, so that we do not end up with people with no responsibility suddenly having a lot of problems with sorting out works on the property in which they are living but for which they do not have responsibility.

We have laid the amendments on the assets of community value because they are very important. We believe that communities should play a key role in both the preservation and the delivery of local assets that sit outside of local authority control. We know that the Localism Act 2011 contains important powers for local communities to be able to do just this, but the problem is that there are issues around how it works. Under current rules, buildings or pieces of land which are, or have been, used to

“further the social wellbeing or social interests of the local community and could do so in the future”

can be nominated to be classified as an ACV by community groups or councils. But if an ACV goes up for sale, a local group that can make a decision as to whether it wants to bid for this is given only six months to gauge whether it is able to bid for it—and it is only during that six-month period that the owner is unable to sell it. After that six-month grace period elapses, they can sell assets of community value to anybody they want to. A report compiled by the Levelling Up, Housing and Communities Committee in Parliament suggested that the six-month grace period was too short and that it would sideline groups in more disadvantaged communities from being able to make bids. We believe that this needs to be changed.

The Labour Party has proposed extending the time frame to 12 months. We believe that local people from every community—not just those who are wealthy and have the resources to put their bids together very quickly—should have the opportunity to take control of, possibly, pubs, historic buildings or, perhaps, football clubs that come up for sale and would otherwise just fall into disrepair. We also believe that they should have first refusal on valuable assets when they come up for sale, including the right to buy them without competition. They should also have the right to force a sale of land or buildings that have been left to fall into a state of significant disrepair. If these processes were reformed to allow and encourage every community to take advantage of it, it would do so much more for the large number of communities that are currently threatened with losing community assets but do not have the ability to put together bids to take them under community control. I urge the Minister to look carefully at how this could be improved for the benefit of all communities.

I would like to make a few comments on Amendment 245, in the name of the noble Earl, Lord Lytton, about the results of the Historic England pilot on compensation rights. This comes under Clause 98 of the Bill, which seeks to remove compensation when a local authority has wrongly served a building preservation notice which, when it was served, prevented any additional work from progressing. We have been talking to the CLA about this, and it disagrees that this is the right way forward, as not only are there significant property rights implications but it also removes an important check on local authorities that wrongly serve building preservation notices. This can cause huge disruption and costs for the owners. We believe that compensation is key to the protection of individuals’ rights. Moreover, the many compensation provisions across the planning system are a vital part of its fairness. If mistakes happen and people suffer loss then, surely, they should be compensated. I shall not talk any further on this because I am sure that the noble Earl will go into great detail, but we appreciate his amendment. It is an important area that needs to be looked at.

My noble friend Lady Andrews has also put down some important amendments on the demolition of buildings, development rights, reduction of carbon emissions and the importance of local communities’ abilities to shape local places. Currently, most buildings can be demolished without planning permission if they are not listed and not in a conservation area. These permitted development rights for demolition have already been removed for buildings such as pubs and theatres, but there is no requirement for the buildings to be run down or beyond repair for this right to apply. We have had some very helpful briefings from the Victorian Society about its concerns on these issues, and we consider that my noble friend’s amendments are very important. I hope that the Minister can support them. I beg to move.

[The Earl of Lytton (CB)]

My Lords, I will speak to Amendment 245—a probing amendment—in my name and that of my noble friend Lord Devon. Unfortunately, my noble friend cannot be here today due to other pressing matters. I must first declare my ownership of two listed buildings and the occupation of a third. I have also acted professionally as a chartered surveyor who has surveyed many listed and unlisted buildings and structures where works were proposed. I am very grateful for the support and input of the CLA, of which I am a member, and of Historic Houses and the Listed Property Owners Club. I am particularly grateful for, as it were, an introduction by the noble Baroness, Lady Hayman of Ullock. It was rather unexpected, because I did not think that it would necessarily be a matter that her party would relate to in those terms.

I acknowledge the importance to the nation of protecting its heritage. When the listing of buildings first came about in, I think, the 1950s, it carried with it an obligation to seek consent for works that affected the character of a listed building. It was not originally the case that effects on character meant that every alteration required consent. However, over the years, because the citations for listing and the descriptions of the matters of importance were, to put it bluntly, minimalist, that is how it has come to be operated. It has now almost become the norm for common periodic maintenance and repair to be caught by a demand for formal consent—things which, for any other unlisted building or structure, can be done without any formality.

--- Later in debate ---

The noble Earl mentioned Historic Houses. I am meeting its director general, Ben Cowell, next week, so I will be happy to discuss the matter more with him. He also mentioned the Listed Property Owners Club which, by definition, covers properties which are already listed and therefore have the protections that come with that. The Government are confident that the removal of compensation will encourage local planning authorities to make greater effective use of the building preservation notice process, thus helping to better protect our nation’s most important historic buildings from potentially harmful alterations or extensions, or demolition.

[The Earl of Lytton (CB)]

Could the Minister explain why he considers it appropriate for authorities to have this power but, to visit direct—and it must be direct—loss in order to be compensable, he thinks it is not appropriate that the exercise of powers should be accompanied by compensation? What other areas where the compensation code might be deemed to apply does he think are in some way disposable? I remind him of the principles that I referred to right at the end of discussing human rights, on the questions of the reasonable enjoyment of one’s property, not being dispossessed of it by the state other than for an overriding reason, and then only on the provision of proper compensation, determined by an independent adjudicator if necessary. Does he depart from those particular principles?

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to the noble Earl for his questions. If it is helpful, I am very happy to speak to him in advance of my meeting with Ben Cowell next week, so that I can have a fruitful discussion with him and with Historic Houses on this point.

He asked about the Secretary of State’s declaration on the Bill. That is self-evident: the Secretary of State has found it compatible with human rights laws. But I will leave it to colleagues at the Secretary of State’s department to speak further on that. With the offer to meet the noble Earl ahead of my meeting, I hope that he will be happy with the point that I have outlined about wanting to remove what we see as a hindrance to these notices being served.

Amendments 312G and 312H, tabled by the noble Baroness, Lady Andrews, would require the Secretary of State to remove permitted development rights for the demolition of buildings. These amendments aim to reduce demolition and consequently carbon emissions, to increase communities’ ability to shape local places and to protect non-designated heritage assets. I completely agree with the remarks she made about the value of historic buildings and our historic environment to communities and the importance of preserving them for generations to come. I pay tribute to the work she has done over many years on this at English Heritage, the National Lottery Heritage Fund and in many other ways.

Permitted development rights are a national grant of planning permission that allow certain building works and changes of use to take place. There is a long-standing permitted development right which permits the demolition of buildings, subject to certain limitations and conditions, as she outlined in her speech. Her Amendment 312G seeks to remove this permitted development right for all but the smallest buildings. Her Amendment 312H seeks to remove the right for locally listed heritage assets only. These amendments would mean that works to demolish affected buildings would require the submission of a planning application.

I want to make it clear to noble Lords that the Government are committed to ensuring that planning permission contributes to our work to mitigate and adapt to climate change. National planning policy is clear that the planning system should support our transition to a low-carbon future, including helping to encourage the reuse of existing resources and the conversion of existing buildings where appropriate. The National Model Design Code encourages sustainable construction focused on reducing embodied energy, embedding circular economy principles to reduce waste, designing for disassembly and exploring the remodelling and reusing of buildings where possible rather than rebuilding. I know that our heritage bodies—not just our arm’s-length bodies such as Historic England but right across the sector—are doing sincere and fruitful work to make sure that we have the skills, not just now but in generations to come, to carry out the works to effect that.

I also want to stress that the Government recognise the need to protect historic buildings and other assets valued by their local communities. The heritage designation regime in England protects buildings of special architectural and historic interest, but we understand there are many other buildings and assets that local people cherish. Planning practice guidance encourages local planning authorities to prepare local lists of non-designated heritage assets. I mentioned earlier the £1.5 million we have given to support local planning authorities and their residents to develop new and updated local heritage lists, with the intention that the lessons learned from that work will be shared later this year.

Local planning authorities have the power, where they consider it necessary, to remove specific permitted development rights to protect a local amenity or the well-being of an area by making an article for direction. Powers to amend permitted development rights already exist in primary legislation. There are also tools within the existing planning system that can be used to manage demolition more responsively, such as the National Planning Policy Framework and local design codes. So, while we appreciate the importance of reducing carbon emissions, supporting local democracy and of course protecting heritage assets, we do not believe that these amendments are necessary to achieve those aims. I want to assure the noble Baroness that we will of course continue to keep permitted development rights under review and look at them with a heritage lens as well.

I understand the point raised by my noble friend Lord Carrington of Fulham about the protections available to more recent buildings. While the tastes of individual Ministers are rightly irrelevant in the process, I share his admiration for the work of Giles Gilbert Scott. I live close to what was King’s College Hospital in Denmark Hill and is now the home of the Salvation Army. I had the pleasure of speaking on 8 September last year—a date which sadly sticks in the mind—to a conference organised by the think tank Create Streets on diverse modernities, where I was able to talk about his other buildings, such as the university library and the memorial court at Clare College in Cambridge.

I said on that occasion that the Government recognise that the eligible age for protection by statutory listing needs to continue rolling forward. In the past, recent buildings have not been a focus for listing, but I am glad to say that that is no longer the case. One-third of the buildings listed by recent Secretaries of State have been 20th century buildings. I think one of the most recent examples is the headquarters of Channel 4 on Horseferry Road, which dates from the 1990s.

The listing regime is not prejudiced. As per the Secretary State’s principles for selection, planning and development are not taken into account when listing a building—it is done purely on historic and architectural merit. The older a building is and the fewer surviving examples there are of its kind, the more likely it is to have special interest. From 1850 to 1945, because of the greatly increased number of building erected and the much larger number of buildings that were constructed and have survived, progressively greater selection is therefore necessary. Careful selection is of course required for buildings from the period after the Second World War.

I am very grateful to my noble friend for speaking to Amendment 247B tabled by our noble friend Lord Cormack. As my noble friend Lord Carrington said, the noble Lord sends his apologies for not being able to be here in your Lordships’ House today. Noble Lords will know he is the last person who would wish to express discourtesy to your Lordships’ House. He has given me permission to share that it is only because he is collecting his wife from hospital following an operation that he is unable to be here today. I am sure noble Lords will understand and want to join me in wishing Lady Cormack a swift recuperation.

I am grateful to him for his amendment, which highlights the importance of lists of locally important heritage assets. I have been able to speak to my noble friend about his amendment and some of the points that lie behind it. As Minister for Heritage, I am, on behalf of the Secretary of State, responsible for the statutory designation system that lists buildings of architectural and historic importance, and protects monuments of national importance. Local listing is a non-statutory means by which local planning authorities can, if they wish, identify heritage assets that are of local importance but do not meet the criteria for national designation and statutory protection as a listed building or a scheduled monument, and then take account of these assets during the planning process. In recent years, the Department for Levelling Up, Housing and Communities has provided financial support to selected local planning authorities wishing to develop a local list with the assistance of Historic England.

Local lists are discretionary; some local planning authorities compile local lists and some do not. Under the terms of local listing, it is up to those authorities which heritage assets they include in local lists. I am not, at present, convinced that, given this discretionary nature, we should be legislating for local lists to include all statues and monuments in an area. While many statues and monuments are very clearly cherished by the local community and should be included on local lists, there will be instances where it would be inappropriate to include certain statues and monuments—for instance, a sculpture in somebody’s private garden. Local planning authorities, following consultation with their communities, are best placed to decide what should be included on a local list.

Our national designation system already ensures statutory protection of our most significant heritage assets, including statues and monuments. The national listing process already protects those that meet the criteria of special architectural or historic interest. We have recently increased the protections for non-designated statues and monuments in public places that are more than 10 years old, whether they are locally listed or not. Their removal now needs explicit planning permission, and we have made it clear in national planning policy that decisions on statues and monuments should have regard to our policy of retaining and explaining these important historical assets.

My noble friend raised the question of the definition of “alteration”, pointing to some examples, including the statue of the Earl of Beaconsfield, Benjamin Disraeli. As it is the day after Primrose Day, and the birthday of my noble friend Lord Lexden—the Conservative Party’s official historian—I must echo my noble friend’s comments about Disraeli and the amusement he might find in some of the treatment of statues of him today. But the point my noble friend makes is an interesting one, which I am happy to discuss with him and my noble friend Lord Cormack. As he is not here for me to ask him not to move his amendment, I offer, on the record, to discuss this with him and any other noble Lords. I beg all noble Lords whose amendments I have addressed not to move their amendments and beg the noble Baroness to withdraw her amendment at this juncture.

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Tabled by

[The Earl of Lytton]

245: Clause 98, page 108, line 19, at end insert—
“(3) Subsections (1) and (2) shall only take effect following an order made by the Secretary of State.(4) The Secretary of State may only make the order in subsection (3) once a public consultation on the case for the change, drawing on the results of the Historic England indemnity pilot, has been completed.”Member’s explanatory statement
This amendment ensures that the results of the Historic England pilot are taken into account and that there is public debate and scrutiny before compensation rights are removed.

[The Earl of Lytton (CB)]

My Lords, I will not move this amendment, but I look forward to meeting with the Minister about this, and I may well return to it at a later stage in the Bill.

Amendment 245 not moved.

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I am not saying that was the right policy or the wrong policy, but it was one that should not have been made by the stroke of a pen in secondary legislation— unamendable—and that could not be properly debated, and on which local thoughts and views could be taken more properly into consideration. If the Government are to push on with Clause 101, I hope they will think about ways whereby some of the powers can be constrained, in light of the way we have seen the envelope of the power being pushed very greatly in the past.

[The Earl of Lytton (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Hodgson of Astley Abbotts. My concern is to do with not the specific examples referred to, but that we seem to be in a situation where we are asked to confer an unconstrained power in relation to an undefined objective. The undefined objective is “national importance”, and I have not been able to find a definition of what that might be. I suppose you would say that I might ask from these Benches: is the national importance clearly distinguishable from the political aspirations of the Government of the day? Is it something different? I would want to know because I would not want to confer a power without having a very clear sense of purpose.

We turn to the matter of “urgency”—not emergency, I stress, but urgency. We need to understand what that amounts to. It may be irksome to Governments of the day—the more centralist and command economy-type the thinking, the more irksome it becomes—to go through hoops to do with projects that involve Crown land. But it is the price of democracy, and the price of the maintenance of the rule of law and the continuation of what might be regarded as the rules-based system. That demands a degree of consistent approach. Without having some definitions in the Bill, it is difficult to see how there could be any consistent approach here, as opposed to one based on whim.

Some of the examples that the noble Baroness, Lady Hayman, produced in her excellent introduction made it look like Government gaming the system, and that worries me very greatly because it is not just the Government that may be here today, but one tomorrow or in future years, and perhaps—who knows?—one that is more extreme of right or left; I say not which. I get back to the rules-based system. Are we in that environment or are we getting into the area where anything goes?

I mention the following because I do not want it to be used as the lever by the Minister when he comes to reply. Wrapped up in the middle of page 123 of the Bill, in new Section 293B(11), is the provision for matters of national security and public disclosure that would be

“contrary to the national interest”.

I get that, and I do not have any principled objection to it, subject to adequate definitions and safeguards. I want to know how “national importance” and “national interest” interface for a start.

Going over the page in the Bill, page 124 states, in new Section 293C(3), that:

“A development order may make provision as to the consultation”—


“may”, but does not have to. That cannot be an entirely optional extra at the whim of whichever Secretary of State happens to be in power at the time. Still on page 124, new subsection (8) states:

“The following provisions do not apply for the purposes of determining an application … sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act”.


Section 66(1) is in relation to the desirability of conserving and protecting listed buildings, and Section 72(1) is effectively the same but for conservation areas. But when the Bill says:

“The following provisions do not apply”,


they clearly do not apply to anybody, not even the Secretary of State. The Secretary of State is, in other measures, asking the general citizenry to comply with precisely the same burdens that they decide, on a whim, that they are going to relieve themselves of. I am behind the noble Baroness, Lady Hayman, because this is just not good enough.

[Lord Berkeley (Lab)]

My Lords, I rise briefly to support my noble friend Lady Hayman, who performed an excellent destruction of this clause. Other noble Lords have said much the same thing. I have one question for the Minister, because this is all about the Crown, but I cannot see any definition in the clause of who “the Crown” is. There are other definitions in other parts of the Bill, which include the Duchy of Cornwall, which I shall come on to in the next amendment, the Duchy of Lancaster, and the Crown Estate. It makes me think that what we are really trying to do is to go back to a time when we had “the Crown” in the shape of Henry VIII, who could do more or less what he wanted. This seems a very good start to the Government’s plan to give Henry VIII, in the shape of whoever is in charge at the time, carte blanche to do what they want.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Committee stage
Monday 24th April 2023 Lords Chamber

The present arrangements are far from suitable for dealing with changing circumstances. For example, if something else came along quite unexpectedly, like Covid-19 did, we could again see massive changes taking place in a very short space of time, when we have not even coped with the knock-on effects from the last change. I hope the Government are going to be reasonable this time around. This is a reasonable amendment that should not be lightly dismissed or ignored in the way that it has been previously.

[The Earl of Lytton (CB)]

My Lords, the noble Lord, Lord Brooke of Alverthorpe, raises a matter which concerns me. I congratulate the noble Baroness, Lady Pickering, on this amendment. I am not, and never have been, a member of the licensing committee, but I am bound to admit that I have enjoyed many of the venues that are facilitated by the licensing process.

My example is a little different, because this is not just a matter of licensing. It concerns the 24/7 use of an urban industrial area not very far from one of London’s major international airports—hence it is 24/7. It is an older industrial estate that had been subject to periodic, sporadic, upgrades of buildings. However, the local authority, in its infinite wisdom, gave consent for a piece of land on the edge of this industrial area, which I think had previously been residential back gardens, to be used for a residential development. This triggered a change of policy within the local authority, such that every time somebody wanted to do anything on the industrial estate—change a roller shutter door, have a better loading canopy or something like that—an hours of work restriction would be imposed, so preventing it being used 24/7. I challenged a local elected member on this, who was unaware of what his council had done and what the implications were.

I accept that that is a different situation from what one might call the shared space of a town centre, but I think it is relevant that we have—sorry to use the awful phrase—joined-up policies in relation to all these things, unless we want situations happening on our high streets such as those to which the noble Lord, Lord Brooke of Alverthorpe, referred to. Later on, we will get to what happens with vacant properties in high streets when—when—we get to the group that is currently number 28 on the Marshalled List before your Lordships. My Amendment 426 in that group is on this issue.

One other issue is what we might call the administrative framework aspect of all this. I think of circumstances to do with the way in which local government or contractors organise such things as waste collection from premises in urban centres; refuse collectors can turn up in the small hours of the morning and cause disruption. I wonder whether we are not sometimes making a rod for our own backs by not thinking ahead about how we organise these things. Some are displaced by concepts such as core time servicing and other such matters relating to our town centres. There tend to be rather individual, single-issue decisions, without looking forwards, backwards or sideways.

I offer a word of caution to the noble Baroness, Lady McIntosh of Pickering, on the wording “can be integrated” in the amendment. The phrase “can be integrated” does not necessarily mean that a new development will be integrated. I interpret “can” as facilitative, “will” as something more demonstrative. If the administrative rollout is subject to all manner of change going forward, without a statement of principles and constant monitoring of the unfolding process, we may end up with decisions made on a “moment in time” principle rather than having the dynamic under constant review and consideration.

There is obviously a resource implication here but, unless we do this, as the noble Lord, Lord Brooke of Alverthorpe, says—given what has happened in just the last few years and post Covid, with the changes in demand, journeys to work and work-life balance—we will not be anywhere near ahead of the curve in getting this right. Other than that, I strongly support the principle of this amendment; I think it a really worthwhile amendment for consideration by your Lordships.

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Moved by

[The Earl of Lytton]

274: After Clause 106, insert the following new Clause—
“Building Safety Remediation Scheme(1) Planning permission must not be granted to any developer or associate responsible for the construction or sale of units in a building with a building safety risk until the Secretary of State has established a Building Safety Remediation Scheme. (2) Schedule (Building Safety Remediation Scheme) makes further provision for the establishment of a Building Safety Remediation Scheme.(3) This section comes into force six months after Royal Assent.(4) “Associate” has the meaning given in section 121 of the Building Safety Act 2022.”Member's explanatory statement
This clause inserts a new Schedule to implement a building safety remediation scheme to ensure that buildings with building safety risks are put right without costs to leaseholders.

[The Earl of Lytton (CB)]

My Lords, in moving Amendment 274, I will speak also to Amendment 318 in my name and that of the right reverend Prelate the Bishop of Chelmsford. In doing so, I draw your Lordships’ attention to my professional interests.

I have two other amendments in this group: Amendments 320 and 325. They are on a related issue but, given the detail that I need to provide in relation to Amendments 274 and 318, I will do no more than signify my firm support for them and leave the heavy lifting on them to my co-signatory, the noble Lord, Lord Young of Cookham; I thank him very much for agreeing to do that.

While I am talking about the other amendments in this group, let me say that I agree that Amendment 504GJD in the name of the noble Baroness, Lady Hayman of Ullock, is certainly worthy of consideration in terms of providing better passive fire safety measures.

I turn to Amendments 274 and 318. I express my thanks to the Bill team for their engagement; to campaign groups across the country for maintaining awareness of the issues; and to the members of the policy team who have supported me. There are too many of them to name but they know who they are and I am very grateful to them. Most of all, I am grateful to the more than 200 individuals and leaseholder residents’ groups who have written to me over the past four weeks both to support me and to tell me about the tragedies and individual concerns that have beset their lives. It is particularly to give them a voice that I raise this issue today.

Amendments 274 and 318 concern, I believe, matters of great social and economic importance. Despite the Government’s measures in the Building Safety Act 2022, far too many leaseholders remain adversely and significantly affected by serious defects in the original construction of the buildings that they occupy or own. Although the BSA was a significant first step in solving the building safety crisis, it leaves significant numbers of leaseholders without adequate protection from, variously, cladding and non-cladding costs, and much of it is based on extra-statutory commitments of one sort or another. So we have a situation where enfranchised leaseholders and buy-to-let owners with more than three properties are excluded, while residents living in buildings below 11 metres in height receive no protection from non-cladding costs at all.

Correspondents tell me that the Government’s remediation scheme is not working for them and that there is confusion about the process, qualifying interests and building height calculation, with gridlock until all the complex arrangements are in place. The most frequent comment is that owners are still locked into unsaleable properties with waking watch and massive insurance costs, as well as high remediation bills in prospect without any early or firm date for resolution. I now learn that many conveyancers may even be reluctant to take on work involving buildings over 11 metres high because of the complexity and professional risks that face them.

I welcome the announcement that many of the country’s largest developers have committed to remediating buildings that they were responsible for, but I am concerned that their contractual obligations are limited to life-critical fire safety defects, rather than the wider definitions in the Building Safety Act. Furthermore, the developer contract apparently covers only around 10% to 15% of buildings that require remediation and appears to absolve developers of responsibility for those waking watch and other consequential costs.

Statutory liability for remediation itself is placed on landlords but without consideration of whether they have the resources to deal with this issue and are able to cover the costs. The DLUHC impact assessment admits that it has no cost estimates when it states:

“For buildings above 11 metres that have historical non-cladding fire safety defects, there is no reliable data”—


not even estimates—

“on the prevalence, or extent, of these costs”.

However, an Association of Residential Managing Agents survey suggests that the non-cladding remediation costs in buildings above 18 metres are, on average, £25,671 per flat and, in buildings below 18 metres, £38,184 per flat. There appears to be no data on the sub-11-metre block remediation issues. We do not know how many we are dealing with. By my reckoning, more than 200,000 individual flats are significantly affected in England alone. Others have arrived at higher totals. So my first question for the Minister is: will she be kind enough to tell us what figure her department is working to?

Some landlords have the resources to meet these remediation obligations but it is not universal. Several large groups are in fact thinly capitalised or have significant indebtedness. For example, the three groups that comprise what is known as the Long Harbour fund appear to have relatively modest net assets, while the Consensus Business Group has significant borrowings from insurer Rothesay Life. They are unlikely to have the free cash to fund remediation works as well as servicing their bondholders and lenders if the incidence of defects and the average remediation costs, to which I have referred, are totted up.

As noble Lords will know, freeholds are typically valued by capitalising the sum of the net ground rents. In value terms, however, they are small by comparison with the collective of leaseholds. High remediation liabilities may make them worse than valueless. So if landlords’ interests are negative and they become insolvent—bear in mind that some of them are dealt with through special purpose vehicles—these freeholds, with their negative value, are likely to be disclaimed by liquidators and escheat to the Crown, with all the delays and uncertainty that that entails. I foresee a legal limbo with unsaleable flats; although this would be unprecedented at scale, it is far from improbable, yet nobody in DLUHC admits to having done the calculations to assess the impact.

My fear is that the Government’s approach creates new credit risks for lenders, particularly in relation to buy-to-let portfolios. If excluded leaseholders are unable to pay their share of the remediation costs, schemes of remediation risk simply being stalled. In such circumstances, leases could be forfeited, widening out their lender security unless extra capital is given. Such a forfeiture would providentially give landlords a windfall gain. Historically, few leases have been forfeited because rebalancing the mortgage has been the preferred course of action. However, it is one thing to have a debt of a few thousand pounds on a service charge in arrears; it is another thing to have the much more costly and complicated scenario of remediation costs, which may run into tens of thousands of pounds. I do not believe that historical forfeiture data gives an accurate picture of the new scenario going forward. Credit risk and mortgage interest recalibration are likely to have impacts on the wider financial system and, in turn, effects on other derivatives and insurance policies. I believe that this is something that has some way yet to unravel.

This is not only about the free market; it is about the social sector as well. Many shared equity owners have told me that, although they have a minority equity stake, they are being made responsible for a 100% share of the remediation applicable to their unit of occupation. That seems grossly unfair. Amendments 274 and 318 would avoid all this and provide for an alternative, comprehensive solution to the building safety crisis that protects all leaseholders from past and future issues.

Amendment 274 would mandate the Government to establish a building safety remediation scheme—BSRS. Amendment 318 would create a new schedule setting out guidance for its key features, all intended to dovetail with the principles of the existing building safety fund. The intention is to protect all leaseholders—indeed, all owners of buildings of whatever height and tenure—from the costs of remediating buildings that are unsafe in their construction and the interim safety measures in circumstances where they are entirely innocent of the causes of these defects.

Where a building constructed since 1992 did not comply with the regulations in force at the time, strict joint and several liability for remediation of all material building safety defects would be placed on a developer and principal contractor. If neither is able to pay, or if a building met the regulations that were in force at the time of construction but is now seen as unsafe, which can happen, remediation funding would come from a much wider levy on the construction industry and materials providers as a whole, rather than just developers, as is currently proposed by the Government. Once a significant effect is established, there is no need for property owners to apportion blame; the industry can sort that matter out for itself.

Remediation will be carried out to standards under the BSA to avoid concerns about remediators effectively policing themselves and, worse, using their own selected approved inspectors. These may be the same firms that previously signed off things that they should not have.

Noble Lords will excuse me for not explaining Amendment 318 line by line given its length, but I seek brevity. Anyone wanting further detail can go to a resource at tinyurl.com/earloflytton. The approach has been scrutinised by a leading construction counsel, a planning KC, parliamentary counsel and other legal minds, as well as by building control, construction and fire safety practitioners. I am extremely grateful to them all for their input. It has attracted support from Ted Baillieu, former state premier of Victoria, Australia, and co-chair of the Australian cladding task force. This matter is attracting international interest around where we go with these sorts of defects. It has also attracted the interest and support of other organisations, including the Association of Mortgage Intermediaries, ARMA, the British Property Federation, the Intermediary Mortgage Lenders Association, NAEA Propertymark, the National Residential Landlords Association, and many others.

Developers should have been the first stop in the Government’s waterfall principle that we discussed just over a year ago. The BSRS bolts on to the existing government commitment, gives leaseholders and lenders more certainty of remediation, and puts them in a greater degree of control. However, it does not just deal with the present crisis. It covers similar situations in the future, and will, I believe, make short-cutting in building standards unworthwhile going forward. We all know that the race to the bottom on quality must cease. The BSRS provides a necessary layer of protection, especially as the Building Safety Act specifically excludes enfranchised leaseholders and commonhold unit owners from all its protections.

The Government do not have the money to solve the problem and are, at present, as I see it, unprepared to place the responsibility on the construction industry that has created this situation over decades of marking its own homework. I believe that the proposals I am advancing would deal with this. Echoing what one commentator said to me last week, if we do not get this right then the taxpayer could end up meeting the entire cost and we will go on building homes badly. We cannot allow that to happen.

All that apart, this is a fundamental matter of justice and equity. It is about protecting the innocent and vulnerable from the cost of failures by profitable enterprises—businesses that would be held liable for their actions in any other mercantile circumstances that one might conceive of. Indeed, the most basic function of government should be the protection of the citizen and society. Meanwhile, my mailbox continues to be filled with tales of individual tragedy, lives on hold, unsellable property, finances in disarray, fear of imminent bankruptcy, careers and retirements wrecked, mental health threatened, weddings shelved, the starting of families put off, forced evacuations—25 blocks is the tally since 2017—and much more misery besides. This crisis is not over until everyone is protected. I beg to move.

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[The Earl of Lytton (CB)]

My Lords, this has been an extremely interesting debate. I thank all noble Lords for their contributions on this group of amendments.

I thank the noble Lord, Lord Young, for covering all the technical bits that brevity forced me to omit; I am grateful to him for that. The right reverend Prelate the Bishop of Guildford gave an outstanding and thought-provoking commentary on, among other things, corporate motivation and where that should sit in the rules-based order.

The noble Baroness, Lady Fox, asked me some specific questions. I will give it a go in terms of giving her a brief response, but if she wants more information then I ask her to let me know because I may need to write to her. She asked me about the potential damage to the construction industry. My belief is that the construction industry should be able to build its way out of the liability—admittedly, probably at a lower profit margin, but that should be a viable option for it, so I do not see this as being a total loss. One of her later points was about market damage. The best estimate at the moment is that about 10% of the blocks are affected, which effectively means that 90% of them are built to good standards and do not present a problem. The risk is that if we do not deal with those forthrightly, and if the Government’s programme is not continually ahead of expectation, the rotten apples will end up infecting a much wider cohort than would otherwise be the case.

The noble Baroness also picked me up on the demonisation of the term “polluter pays”. I hope that I avoided using that term in referring to the building safety remediation scheme, but I know that outside it has attracted that moniker. That is of course a reflection on the environmental liability; coming further forward in time from that strict liability, we have a more direct example. It is of health and safety, particularly on construction sites. The strict liability that was imposed under that regime substantially improved the rate of death and injury in construction. I believe the same focus that this liability would generate is applicable here, bearing in mind that we are talking about vulnerable people in their own homes and that they are asleep and unconscious for maybe 25% to 30% of the time. They really need to know that that is their safe haven and not to feel threatened in it by issues of safety or finance, such as not being able to transact their property.

I thank the noble Baronesses, Lady Hayman of Ullock and Lady Pinnock, for their support. The noble Baroness, Lady Pinnock, has been an absolutely doughty supporter of the principle throughout. I pay tribute to that, as I do to my noble friend Lord Cromwell for his contribution. I am most grateful.

I thank the Minister for her response but I am disappointed. The fact of the matter is that a very large number of flats are excluded. There is no prospect of any early protection from costs that their owners are not responsible for. Litigation against freeholders is all very well, provided that the freeholders were those who were responsible for the problem in the first place. But if they are not, because they just happen to be from a pension fund that picked it up along the way, no doubt relying on the same sign-off and building warranties as all the occupiers, then I have to say that this looks like the Government plucking at low-hanging fruit for the purposes of PR and marketing. I am sorry, but I do not buy the principle that letting others off the hook should necessitate going after people who may themselves be, beyond peradventure, innocent.

The Minister also referred to the comment made just over a year ago saying that the amendment I moved then, of which I hope this one can be regarded as a new and upgraded version, was not cost effective because it would require a building-by-building assessment. But you do not establish anything unless somebody goes and looks at the building on an individual basis; I know that as a surveyor. I have looked at hundreds of buildings in my professional life and that is where it starts. The Government’s own approval to any sub 11-metre matters is described as being on a case-by-case basis, so what is the difference?

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[Baroness Taylor of Stevenage (Lab)]

My Lords, I shall also speak to Amendments 277, 280 to 281B and 282 in the name of my noble friend Lady Hayman and in mine. I shall also make some comments in relation to Amendments 276, 278 and 279, in the name of the noble Earl, Lord Lytton, and Amendment 281C in the name of the noble and learned Lord, Lord Hope of Craighead.

The increasingly acrimonious circumstances in which planning is often discussed, debated and granted has significantly increased the burden of enforcement. This is combined with a contraction of local authority planning teams due to reductions in local authority funding, which is putting increasing burdens on the planning process, as we have already debated today in Committee. Our amendments are in recognition of that and to ensure that timescales, fines and practices are developed in a way that is proportionate to the current circumstances.

As one brief example, most local councillors will be familiar with their weekly planning list having a number of certificate of lawfulness applications—they are a particular bugbear of mine. These mean that the applicant has not applied for the appropriate permissions in advance and, having now built out their development, is only now seeking the approval of the planning authority. There is little if any appropriate sanction for this behaviour, which seems grossly unfair to all those who take the necessary steps to submit their applications properly in advance of building.

It is fair to say that such developers face the risk of the planning authority turning down their retrospective application, and there have been notable examples of authorities requiring buildings and/or alterations to be taken down. However, with the powers of enforcement diminished, both in this respect and for straightforward breaches of planning, simply by the lack of resources to deal with enforcement, the danger is that we continue to see from the worst offenders a cavalier approach taken to the planning process.

Amendments 275 and 277 in the name of my noble friend Lady Hayman of Ullock are designed to draw attention to the fact that it may be necessary to foreshorten the extended time limits for the enforcement of planning controls where there is a significant impact on the environment. We appreciate that the 10-year window is necessary for raising issues relating to planning enforcement, but it will be important that all involved in development understand that, if enforcement relates to an issue where substantial harm is being caused to the environment, planning officers will expect these to be dealt with more quickly. We hope this amendment will give them the power to do so. The amendment aims to prevent a delayed response from developers, not to limit the amount of time planning controls can be exercised over environmental matters. This should be 10 years, as for all other matters.

We have discussed previously in Committee the need for rapid digitisation of the planning process, where that has not already been done. Amendment 280 is a probing amendment to ensure that this is the case for the enforcement aspects of planning as well.

As in other parts of the Bill, we believe that new burdens may be imposed on local authorities in relation to enforcement. Amendment 281 in my name is to flag up again that there will be a need for an overall assessment of all parts of the Bill to understand the likely financial impact on local authorities. We have received previous assurances from the Minister on new burdens funding. It would be good to know that relevant professional and representative bodies will be consulted on this important issue as quickly as possible after the Bill passes into law, so that no undue financial burdens are placed on already hard-pressed local authorities.

As we have discussed in previous clauses, the financial burden of planning does not fall proportionately on the developer, which is true of enforcement too. Amendment 281A in the name of my noble friend Lady Hayman of Ullock is included to ensure that we do not inadvertently create an enforcement fine regime where it is more cost effective for the developer to breach planning rules and guidelines because the cost of non-compliance is less than the profit they are likely to make from any breach.

My Amendment 281B seeks to introduce a very important provision that would prevent developers applying for an exemption to the provisions in a planning application to deliver affordable housing in a development. We are all very familiar with the long wrangles that planning authorities are having over viability. Our concern is that, if this exemption from enforcement clause were to apply to the delivery of agreed affordable housing, it would simply be another get-out clause in the armoury for developers, with their significant legal firepower, to avoid providing much-needed affordable housing.

Clause 116 is concerned with ensuring that the planning process works as efficiently as possible and makes best use of digital technology. My Amendment 282 seeks to set the purpose of this in the Bill, so there can be no doubt that it is the intention to avoid delays wherever possible.

Amendment 276 is in the names of the noble Earls, Lord Lytton and Lord Devon. Just as our amendments recognise the importance of a shorter enforcement period for environmental issues, it recognises the importance of changes of use to a dwelling house. We agree that, where enforcement relates to somebody’s home, a shorter time period than 10 years would be preferable.

Amendment 278, in the names of the noble Earls, Lord Lytton and Lord Devon, recommends consultation with affected parties on extending the time limits for planning enforcement from four years to 10 years. We would always support such steps, as professional bodies and local government representative bodies can be essential consultees in ensuring that all consequences are understood from the outset and that any unintended consequences can be predicted and mitigated.

On Amendment 279, in the names of the noble Earls, Lord Lytton and Lord Devon, we will be interested to hear the Minister’s response on whether it is the intention for the provisions of the Bill to be retrospectively applied to developments which, under current legislation, have reached the time limit for enforcement. Is the legislation to apply only to enforcement for developments started after the commencement of the Act? Will there be a transition period, or will it automatically apply to all developments that have reached the current four-year limit?

Amendment 281C in the name of the noble and learned Lord, Lord Hope of Craighead, seeks to insert in the Bill the explanation of the purpose of Clause 113, as is contained in the Explanatory Notes. We have had a number of examples during our examination of this Bill where the absence of these explanatory clauses could potentially cause ambiguity in their interpretation. Therefore, we support this sensible move to insert the explanatory clause in the Bill. I beg to move my amendment.

[The Earl of Lytton (CB)]

My Lords, probing Amendment 276, and Amendments 278 in 279, are in my name and that of the noble Earl, Lord Devon, who is regrettably unable to be with us today. Apart from declaring an interest as a property owner, I must also explain that I have in the past been threatened with enforcement proceedings—so guilty as charged, or perhaps not guilty as charged. I am very grateful to a number of planning practitioners who explained some of the finer points of all this to me.

These amendments relate to Clause 107 and refer to what is known as the four-year rule. The current position is that, if works to a property have been undertaken more than four years previously, the owner is immune from enforcement action by the local authority. The equivalent period for changes of use, which of course may be harder to spot, is 10 years. A minimum of 10 years unchallenged enjoyment of both works and change of use is required before a lawful use certificate can be claimed. If you like, the entitlement at that stage becomes absolute.

I should add that, for works or changes of use to a listed building or, I think, for one in a conservation area, time does not run against the enforcing authority, and so protection of heritage is not an issue. Furthermore, works of development that are done secretively or by concealment are, I believe, also not protected by the four-year rule. So the building of a house within the confines of an agricultural barn, as happened in one rather infamous case, would not escape.

The system has operated for many years, quite successfully as far as I know. In the most recent review of the arrangements, the four-year cut off remained unamended. My own sense is that, if works have not been spotted after four years, it is quite unlikely that they will be spotted more readily in years five to 10. Indeed, one might conclude that, if it is that unobtrusive, it should scarcely be a planning concern anyway. It is more likely that it will crop up to ensnare an unwary owner who makes a subsequent application and some historic non-compliance is spotted at that stage.

The four-year rule also recognises that planning is complex, with many pitfalls for the unwary, and that it is not necessary or desirable to micromanage planning uses of land and buildings. For instance, erection of deer fencing, construction of ponds and the placing of certain structures on land may in some cases require consent but in others they do not. A movable item nearly always does not trigger a planning issue but leaving it in the same place for too long does.

Many households think that a permitted development right absolves them of the need for any consent at all. I believe it is government policy to reduce burdens on householders. Furthermore, where a local planning authority has issued what is known as an Article 4 direction, removing permitted development rights for certain types of development, owners may not be aware of this or be made aware, even in a purchase situation. As in one instance which occurred in my professional career, a shopkeeper might find that they are subject to enforcement procedures for displaying an internally illuminated sign fixed to the interior of their shop window glass, but not if it is a foot or two further back. The rules are opaque, convoluted and may be interpreted differentially per authority. As I see it, the four-year rule served to prevent this becoming a more serious issue.

But Clause 107 would remove this protection. I know of no justification for doing this, nor any public consultation that underpins that decision to include it in the Bill. I think that most householders, and possibly quite a few lenders, would view this with concern. But the removal would have, in my opinion, a somewhat more sinister side-effect. I know of instances whereby an annoyed builder has set out to shop a property owner who did not award him a contract of works, or shopped the successful contractor—or a neighbour averring to the authorities that works in non-compliance are taking place, either because of neighbourly detestation or, as in one case known to me, because the neighbour took umbrage about the builders’ vehicle parking and plant-unloading arrangements in the street outside their home. So to leave the door open for an additional six years to this sort of risk of a snooper’s charter is socially, economically and administratively undesirable.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Committee stage
Monday 22nd May 2023 Lords Chamber

[Lord Thurlow (CB)]

My Lords, I am grateful to the noble and learned Lord, Lord Etherton, for identifying what I believe to be an unintended consequence in connection with the proposed forced auctions of high street property. I am pleased to add my name in support of Amendment 418.

Following many years of practice as a chartered surveyor, specifically in the commercial property market, I am well aware that one of the most difficult challenges that landlords of vacant property can face is that of the unauthorised or illegal occupation of their premises. Securing legal and legitimate possession from an occupier who refuses to leave is expensive and time-consuming and can easily—and unfairly—add to the long list of bad landlord stories.

If that unauthorised occupation involves residential property, the problems of cost and delay can increase significantly. I appreciate that the clause we are referring to does not refer to residential occupation, but commercial shops are frequently let to sole traders who use an upper floor storage space informally as residential accommodation. It is outside the terms of the lease, but it may remain a fact, so it is worth pointing out that residential occupation comes into this amendment.

Amendment 418 is designed to protect a landlord from enforcement by the local authority of the auction process when they are already doing their very best to secure vacant possession. They are trying to get rid of an unauthorised occupier. Without this possession, it becomes impossible to let the property. Who would conceive of signing a lease for a shop as a tenant with an illegal trader already in place? Surely it is wrong to penalise the landlord who is keen to let their property but is unable to do so. While legal action is under way, that landlord receives no rent and is probably paying interest on a commercial mortgage. They are likely in breach of their rental income covenants with the bank, so may be verging on defaulting on that loan, and are likely employing costly solicitors to pursue legal action for recovery of their property. Yet, by this Bill, they could be accused of keeping a property vacant.

The clock should not start on the period defined as “lying vacant” until the property is vacant and is in the landlord’s gift to be let to a tenant. I do not believe that it is the Government’s intention to auction off commercial premises that are the subject of legal action to recover possession, so I ask the Minister to ensure that, while legal proceedings are under way to secure possession, the landlord does not inadvertently fall into the trap of effective confiscation by the authorities.

This amendment is not a matter of policy or principle. It does not dispute the intention of Clause 178. It is simply a practical matter that, unamended, will lead to confusion and conflict between vested interests, which, I am sure, is unintended.

[The Earl of Lytton (CB)]

My Lords, I rise to speak to Amendment 426 in my name. I start by declaring an erstwhile interest as a former property manager of retail premises. It had a high street address, but the main shopping area had ceased to be in the high street some 30 years prior so, when we talk about high streets, it requires a little care in what one is actually referring to.

I pay tribute to the British Property Federation, which the noble Baroness, Lady Hayman of Ullock, mentioned in her excellent and substantial introduction to this group of amendments, but I must stress that these views are mine and not those of the BPF.

I observe that 27 clauses and a schedule is a lot of stuff to have in a Bill of this sort for something that I am advised is a really quite narrow application. However, I am looking in the direction of the noble Baroness, Lady Thornhill, because I suspect that she may have other views on this matter that she will doubtless enlighten us on.

The Government seek to attract overseas inward investment at scale, and UK real estate is one of those attractive asset classes across the world which has a great deal of further potential. I am told by the chief executive of Savills that commercial property investment in the UK runs at about £60 billion annually, about £30 billion of which comes from overseas, so this is a matter of considerable moment. However, we risk serial policy interventions, with a potential adding of burdens, increasing uncertainty and raised investor risk, which threaten to undermine this success story. Commercial rent collection moratoriums were one such thing. While I recognise that they were essential in the circumstances, they did not help.

High streets and retail properties are particularly challenged by the burdens from business rates referred to by the noble Baroness, Lady Hayman, and from floor space oversupply, loss of important anchor tenants, major shifts in shopping habits and general changes in work/life balance. Many properties in regions with the highest vacancies suffer from historic business rates levels, with instances of rates liability being in excess of 100% of the rent. That makes tenancies as unattractive as private sector investment and must be addressed.

Any measure that threatens investment should be looked at critically. As far as the retail investment sector is aware, according to the information that I have from the BPF, there is little pressure across the country to introduce these auctions, and the Government admit that they will be relevant in only a minority of cases to deal with empty properties. I appreciate that if a property is creating a particular problem, it must be dealt with, but given what we are being asked to put into this Bill, I wonder whether we are not using a very large sledgehammer to crack a small nut. The BPF tells me that the likely costs of each high street rental auction to a local authority alone would exceed £6,000. At a time when strained local authority finance is prevalent, this is unlikely to make them a priority. That figure, if correct, is just the local authority’s cost—never mind the other costs for the other parties.

The Bill proposes a scheme which I find complex, with exacting compliance criteria and where decisions of local authorities in their own cause appear to be incontestable, such as a refusal of consent under Clause 184(1). Appeals under Clause 187 would be to the county court, which has its own problems of delay and cost, and may not stop there. Therefore, a potential liability to pay compensation assessed by the First-tier Tribunal on top of that makes this look like quite a chancy operation. None the less, if Ministers wish to press ahead with this measure, the Bill should better distinguish between those property owners seeking a tenant but who have been unable to find one, having used all reasonable endeavours, and those who are just being plain unco-operative, where I can see that there is a perfectly good explanation. I pay tribute to the points made by the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Thurlow, in that respect.

Schedule 16, which sets out the grounds on which landlords might have to appeal against a local authority’s final letting notice, should therefore be amended to include a new Clause 8, as set out in my amendment. It provides a facility for the landlord to demonstrate reasonable attempts to market the property at or below what might be described as a reasonable market rent for at least a nine-month period. That is to provide a safeguard against any capricious approach to the matter. We know that there are difficulties on the high street, and in dealing with certain types of shop premises—their shape, their configuration, their position in the high street, and other things that are going on at any given time, possibly to do with planning policy.

--- Later in debate ---

[The Earl of Lytton (CB)]

My Lords, it is a privilege to be a co-sponsor of this proposal, so ably introduced by the noble Baroness, Lady Hayter of Kentish Town, and spoken to by the noble Earl, Lord Caithness. The noble Baroness has far greater knowledge of regulation, which goes back a long time. Especially on the regulations of bodies, that surpasses anything that I could do.

I am a fellow of the Royal Institution of Chartered Surveyors; I have been a member for 48 years and was at one time chair of one of its expert panels. I am also an RICS-registered valuer. Although I am semi-retired, I still pay a subscription to the RICS. I am governed by its rules and its requirements for continuous professional development, and so on. I must make it absolutely clear that the views I express are my own and are not to be taken as any statement by the RICS on its policy, or as its acquiescence in any way with the conclusions that I draw. Although I have spoken at length with the RICS, my views are essentially my own.

I will give your Lordships a few facts. The RICS has a membership of 130,000, 20% of whom are foreign-based. It has international and national status. It sets standards of technical compliance in areas of valuation, measurement, physical assessment and methodology of appraisals in many areas. It does that within a framework of ethical and competence standards, backed by disciplinary powers over its own membership. Other bodies and sectors have frequently and voluntarily adopted the standards that it sets. It has members who survey the ocean floor and others who auction fine art; such is its range and scope.

--- Later in debate ---

My fourth question to the Minister is: what assessment has been made of the alternative option of introducing emergency legislation, should some unlikely conjunction of events require it, rather than taking a provenly risky route of bringing forward a statutory instrument as proposed in the Government’s Amendment 504GK? I could spend time pointing out just how foolish this proposition is, but I have posed four questions and, without clear and positive answers by the Minister today, these matters will certainly have to return on Report. This is too important an issue to leave lying as a set of amendments on the 14th day of Committee consideration, shoved into the Bill without detailed consideration and, in my opinion, detailed reconsideration.

[The Earl of Lytton (CB)]

My Lords, it was with concern that I read the Delegated Powers and Regulatory Reform Committee’s 31st report in relation to the very matter that the noble Lord, Lord Stunell, with his usual precision and excellence, has outlined: namely, the question of the building safety regulator.

It cannot be very often that a committee comes up with statements such as:

“We consider that the Supplementary Memorandum provides wholly inadequate justification for giving the Secretary of State such a broad Henry VIII power to—”


and the third bullet point under that is,

“determine what functions the regulator will have”.

It could have added “and modify them at will”, because that is in fact what the situation is. It goes on to say,

“we consider that Amendment 467D contains an inappropriate delegation of power that should not form part of the Bill”.

It could not be clearer.

The noble Lord, Lord Stunell, set about providing a whole series of logical and technical explanations to this. However, there is another explanation, and this is my take on the back story of what is really going on here. Throughout the process, post the Grenfell tragedy, the Government have sought to manage risk and control what might otherwise be seen as unacceptable political and economic fallout. Ever since their own consolidated advice note of January 2020, admitting in so many words that many of the issues found at Grenfell Tower could affect other buildings of any height, they have sought to delimit the ongoing and subsequent damage that that caused.

This spawned a reference to the department’s technical advisers and a resultant independent expert’s statement of July 2021. That sought to identify and justify that buildings under 11 metres were of an inherently lower risk. This in turn triggered an approach to RICS to amend its EWS1 scheme and its advice to mortgage valuers. We know the outcome of that was greeted with significant ministerial disapproval.

Clause 213, on at least one level—I am not going back over all that—could be seen as an attempt to silence or modify the views of independent professionals to align with the Secretary of State’s thinking or to cancel concepts of commercial risk assessment. Amendment 467D, for its part, could be interpreted as seeking to make sure that risk assessment and remediation via the building safety regulator is toned down. This would at least fit with differing standards under the Government’s pledged remediation contract, of which we have heard a great deal in recent months, and a fair interpretation of the Building Safety Act 2022 standards.

I leave it to your Lordships to consider whether these are, as I suspect, connected in some discrete or perhaps not so discrete policy aimed at managing risk and potentially seeking to outrun market sentiment. All I say is that Governments will never succeed in outrunning market sentiment; to suppose that that might happen is tantamount to saying that you can walk on water. From that point of view, I do not get it.

I remind the Committee, first, that low-rise does not equate to acceptably low-risk. The independent expert’s statement came 11 months after a disastrous fire at four-storey Richmond House in the London Borough of Merton, which was apparently not seen as fit to mention. Secondly, whatever the various machinations, blame-shifting, smoke and mirrors or other activities, it is government policy that has resulted in hundreds of thousands of home owners, many of whom have written to me, being unable to mortgage or sell their properties and facing enormous recurring charges for insurance and other measures. If the Financial Times is to be believed, leasehold flats are now falling seriously out of favour in the marketplace. This is just when increasing densities, and indeed more housebuilding and better use of scarce urban sites, are called for. It is a matter of government policy that we should build more homes.

The genie is out of the bottle and is not going back in. Around 15 months ago, I said in the context of the Building Safety Bill, as it was then, that the Government needed to get ahead of the curve in dealing with this. They have not done so; they are labouring in the wake of events. This is not good enough. It makes the building safety regulator substantially the sole control of the department, as opposed to being an independent body like the Health and Safety Executive. I just add that it was changing the health and safety regime a few years ago that radically changed injuries and fatalities on construction sites. Therefore, it has form and a track record. This approach to the building safety regulator is totally unacceptable, as far as I am concerned.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Report stage
Tuesday 18th July 2023 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I add a brief footnote to what the noble Lord, Lord Best, said in speaking to Amendment 71, to which I have added my name, and to what my noble friend Lord Lansley has said about Amendment 311. I endorse what the noble Lord, Lord Best, and my noble friend said about the willingness of Ministers to listen to us throughout the process. The government amendments respond to the concern that we all expressed in Committee about the potential loss of affordable homes.

I shall pick up the point made by the noble Lord, Lord Best, about the so-called viability loophole. What has been happening is that well-resourced developers, half way through a scheme, have turned to the local authority and said, “It’s no longer viable—and, by the way, we cannot build the affordable homes which were due to be built right towards the end of the scheme”. That left the local planning authority with the nuclear option of pulling the plug on the whole scheme or allowing it to go ahead and at least getting the open market houses. At the time, Shelter did some research, which showed that the use of viability assessments in 11 local authorities across England contributed to 79% fewer affordable houses being built in urban areas than would have built if the original agreement had been adhered to. Following that controversy, the Government introduced guidance and tightened up the rules in 2018; the new rules limited the use of viability assessments to reduce affordable housing to exceptional circumstances, such as a recession or similar economic changes. That was a step in the right direction.

My concern, which was echoed by the noble Lord, Lord Best, is that government Amendment 76 seems to go back on the 2018 changes and revert to the position that generated all the criticism about viability. I note in passing that the technical consultation criticised the current Section 106 agreements by saying that the

“planning obligations are uncertain and opaque … they are subject to negotiation (and can be subject to subsequent renegotiation), can create uncertainty for communities over the level of infrastructure and affordable housing that will be delivered”.

Is that not exactly what Amendment 76 does in referring to a development being economically unviable? It seems that what the Government are doing is virtually guaranteeing that no development will ever lose money, while the developer benefits from any gains above expectation. The levelling up Select Committee’s report expressed the same doubts last week.

I want to say a final word on Amendment 311, to which my noble friend Lord Lansley spoke. On 17 March, the Government published their technical consultation. It ran to 91 pages and asked 45 questions; it is not an easy read. The consultation ended on 9 June and the document said:

“Following the closure of this consultation, the government will assess responses. In doing so, a response will be issued that summarises the themes that emerged, before issuing a final consultation on the draft regulations after the Levelling Up and Regeneration Bill achieves Royal Assent”.


This means that we are debating Schedule 12 in a vacuum because we do not know what its structure will be. I am afraid that this is a feature of too much in this Bill.

When it published its report, Reforms to National Planning Policy, the Select Committee in another place picked up the same point. It also said that we are going to have real issues if we run the infrastructure levy and Section 106 in tandem, leading to arguments and complications. I was not wholly reassured by what the Minister in the other place said in response to the Select Committee’s query:

“If they say that it is too complicated and ask to change things, we will consider that”.


I am not sure that that is a great step forward.

So, on both issues—viability and the absence of the structure of Section 12—I hope that my noble friend the Minister will be able to provide the House with some reassurances.

[The Earl of Lytton (CB)]

My Lords, I will intervene briefly. I declare an interest as a chartered surveyor with some involvement in the development process.

I want to speak to the factor that links Amendments 71 and 94 and follows on from what the noble Lord, Lord Young of Cookham, has just said. I have been in the past a technical operator of the dark arts of development appraisal. I would be much less charitable than the noble Lord, Lord Stunell, in my comments about exactly what goes on here; for instance, how land values under option agreements are arrived at and how, with a click of a mouse on a proprietary development appraisal computer package, the matter can then adapt to a viability test for the local authority’s community infrastructure levy or Section 106 contribution purposes. Noble Lords would be astounded at the way in which a yield change here and a cost base there, as well as the adaption of a timeframe or the alteration of a contingency allowance—I mention just a few means—can be used to alter significantly the entire outcome and colouration of what is claimed on the back of it. Further, all this is done by using the same primary data inputs and, unsurprisingly, there are two factors that developers will never reveal to you if they can get away with it. One is the land value that they paid, coloured as it is by all sorts of associated costs before it gets as far as a planning consent; the second is their construction costs, which are entirely opaque.

Alongside all this and of much longer standing is what I describe as the commoditisation of residential property, which started in the 1990s. It has since financed ever more of the items society wishes to have, in terms of affordable housing, infrastructure, schools et cetera. But that policy has created a consistent and ever more bankable asset within an enhanced lending sector. This results in the very unfortunate situation of driving up house prices and creating a model that is less than satisfactory. Core to this is the issue raised by the noble Lord, Lord Stunell—transparency. Without it, none of this will be demonstrable to anybody, at any time.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Report stage
Monday 4th September 2023 Lords Chamber

[Lord Lansley (Con)]

My Lords, I put on record my interest as chairman of the Cambridgeshire Development Forum, which of course involves me in a wide range of planning and development-related issues.

I want to say a couple of things at the outset. First, I say a big thank you to my Front Bench colleagues for the time and energy that they and officials have given to discussing many of these amendments. I know they have worked hard, including through the recess, for us to try to reach agreements about some of these things: even if we do not, I want to say how much I appreciate the effort they are putting into it. The other thing I want to mention is that all my amendments, even if I might end up disagreeing with my noble friends on the Front Bench, are intended to make the Bill work better and in the spirit of how it is constructed.

That brings me to this first group of amendments, all in my name. In Committee, we had a very interesting discussion about what constitutes an “up-to-date” local plan. Why is this important? It is important because when we reach that part of the Bill and we have a plan-led system, we need to know whether the plan has full effect. Almost by definition, an up-to-date local plan has full effect and an out-of-date local plan has no effect, some effect or a differing weight. An emerging plan also has weight attached to it, but we also do not know precisely how much weight is to be attached. The Government’s answer to this, of course, is terribly simple and was a very compelling reply to the amendments in Committee. It said that an up-to-date plan is a plan that has been adopted within five years of the preceding plan. That is a cliff edge, they said, and a cliff edge does not do: we need something that is more subtle than that and acknowledges that there are plans that go out of date, but they are not much out of date and they are relevant, and we have emerging plans to which weight should be given.

So, we have constructed a set of amendments that inserts the words “up-to-date” in front of “plan”, because if you have a plan-led system and you just say “local plans” and do not refine what you mean by that, it is rather deficient—and we are intending to have a plan-led system. The Government’s arguments are based, in substance, around the proposition that local authorities need to have up-to-date local plans; otherwise, the system will not work effectively. In so far as they do not, the Bill has, as we shall come on to in the next group, the question of national development management policies which, to a large extent, step in in the determination of planning applications in circumstances where a plan is no longer up to date. So, there are undoubted pressures on local authorities to have a local plan that is up to date, but this is not easy.

Although we have a significant slowdown in the number of local plans being progressed by local authorities—not least because of the uncertainties associated with the revision of the National Planning Policy Framework and the uncertainties, frankly, associated with the passage of this legislation, which is not helping the situation—none the less when the Bill goes through and the NPPF is published we need to give greater certainty, and I think statutory weight behind the expression “an up-to-date local plan” gives certainty.

However, it does not solve the problem of a plan being out of date or there being an emerging plan in relation to the existing one. That is why the most important amendment I have suggested in this group is Amendment 187, which gives the Secretary of State a power in regulations to say what constitutes an up-to-date local plan—enabling that term to be defined—and to specify what weight should be attached to plans that are no longer up to date and to emerging plans. I anticipate that my noble friend may reply, perfectly sensibly, that we can do all that in guidance; my point is that we are creating statute and therefore want to give statutory weight to local plans as such and to up-to-date local plans, and to give a statutory framework for the processes by which Ministers determine how up-to-date plans, out-of-date plans and emerging plans are to be considered in relation to the process of determining applications.

When we come on to national development management policies, the interaction between the regulations saying how much weight should be attached to emerging and out-of-date plans and the Government’s specific provisions in the national development management policies is an important one, which would be assisted by placing all these things into regulations—to which Parliament can have regard, which is, frankly, not an insignificant consideration. As we have encountered a number of times in the planning considerations in this Bill, where the National Planning Policy Framework and guidance to local planning authorities are concerned, Parliament plays, in effect, no role.

We have a chance now to say that we want a role—that we want to see the regulations and, in exceptional circumstances, to dispute them. The key thing is that Parliament should at least have a chance to see and debate them, and to give statutory weight and legislative backing to the meaning of local plans as they appear at the heart of the plan-making process. I beg to move.

[The Earl of Lytton (CB)]

My Lords, as this is the first time I have spoken at this stage of the Bill, I draw your Lordships’ attention to my professional and property interests.

I strongly support what the noble Lord, Lord Lansley, has put forward, for reasons which tangentially affect me to some extent where I live, down in Sussex, where no one could quite work out whether a duly made neighbourhood plan was still extant in the absence of a current local plan. This seems to be one of those things where unforeseen consequences have come about. As the noble Lord, Lord Lansley, has mentioned, making local plans and keeping them up to date is certainly not an unonerous burden; it is a process of constant churn in which at a certain date it becomes law, if you like, and at another date it suddenly drops off the cliff edge, as he referred to it, but the neighbourhood plans do not necessarily coincide with that same cycle.

It is even more of a problem for communities to make their local plans, because they do not have the same sorts of resources. A lot of it is done by voluntary hard work and endeavour. Yet in areas where a neighbourhood plan is still extant but the local plan has gone out of date, the whole thing is left in limbo. I absolutely buy the point that we need greater certainty and that some parliamentary scrutiny of this process is needed, at least to be able to consider a regulation.

Whether it is right that the Secretary of State should have quite such extensive and untrammelled powers to do this is probably a matter that the two sides of the House will never quite agree on. I think there is a valid point about how far one takes that. However, this degree of uncertainty is highly corrosive and is very damaging to confidence in the local plan and to coherence and trust in the process at neighbourhood and local plan level. I warmly support and thank the noble Lord for raising this very important group of amendments.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Report stage
Wednesday 6th September 2023 Lords Chamber

[Lord Redesdale (LD)]

My Lords, I will speak to three amendments in my name—Amendments 261, 262 and 263. These are probing amendments, on which I hope the Minister can give some clarification, as this is very much a Pepper v Hart moment, where ambiguity over wording in the Bill could cause some problems.

Historic environment record services are vital not only in not protecting our historic environment records but for developers, because an understanding, at an early stage, of issues around the historic environment reduces the cost of development.

Amendment 261 is a probing amendment to establish whether the Government’s interpretation of “maintain” adequately covers existing provision of HER services, which are shared between multiple authorities or outsourced to third parties. We have heard concerns from various HER services that they would need to change the way they currently deliver services as a result of this clause. We are confident that that is not the Government’s intention. An example is that Greater London’s HER is maintained by Historic England on behalf of all London boroughs; the Government would need to confirm that this service model is acceptable in order to reduce the risk that the Bill destabilises otherwise good provision. We would like the Government to confirm that their intent is for all models of service provision, including those where HER services are shared with other authorities or bought in from third parties, to be deemed to meet their obligations to “maintain” an HER.

Amendment 262 makes provision for a dispute resolution procedure should disagreement arise over competing interests from authorities. This is particularly important at the moment because, while HER services have to be supplied, local authorities are making cuts wherever they can. This could lead to confusion around the definition of a responsible authority. Dispute resolution may therefore be needed to resolve, for example, city council X cutting funds to its HER service and making the argument that county council Y is the responsible authority and should pick up the shortfall. Such situations may occur in the future if there is a shortage of money. We would like the Minister to confirm that the Government intend to set out, in guidance, processes to deal with any situation that may arise between authorities—for example, competing claims over which is the responsible authority.

Amendment 263 expands the definition of “relevant authorities” to include district councils, where no other authority provides an HER service. At present, there are at least seven lower-tier authorities—for example, Oxford City Council, Colchester City Council and City of Lincoln Council. Under the current definition of “relevant authority”, the county authority would appear to be subject to the responsibilities in this clause, despite not currently or historically delivering services in these areas. This could cause a breakdown in existing provisions or lead to disputes over who should deliver or pay for these services. I hope the Minister will confirm that the Bill’s intention is to include lower-tier authorities within the definition of “relevant authority”.

[The Earl of Lytton (CB)]

My Lords, I thank the Minister for his Amendments 202A and 202B, which were partly a response to my comments in Committee. I am particularly grateful that he and his team have listened to the concerns that I expressed, not least those made by the CLA and the Historic Houses Association. I pay tribute to those two organisations for their quiet persistence. I certainly appreciated the opportunity to discuss this with the Minister and his officials.

I declare that I am a member of the CLA and was once a member of its heritage working group. I also own several listed buildings. I am glad to say that I have never been in receipt of a building preservation notice, which is the subject of these amendments, but I have had long professional involvement with heritage matters. I am particularly grateful for the support of colleagues in this House and others outside.

Clause 99 removes one of the few safeguards available to property owners faced with a building preservation notice, where the issue of the notice has been found to be ill-founded and, as a result, the owner suffers loss. It is easy to see how works in course of execution, whether groundworks internally or works to the roof, could be critically compromised, and the building with it, by the immediate and complete cessation of works that a building preservation notice demands, potentially for many months. If the notice is not well-founded, the owner can suffer serious and gratuitous loss.

Here I observe that local authorities often do not have in-house heritage expertise. It is often subcontracted to external contractors, who may provide so many days a month. That underlines why these amendments are so important, as the local authority would have to go to Historic England or to the commission to make sure that it was taking the correct approach.

Were it not for the fact that, to date, the existing listing of buildings under Historic England and DCMS oversight and the operation of the building preservation notice regime have functioned pretty well and achieved a good deal of confidence, this situation would be of significant concern. I am particularly glad that the Minister has made it clear that this should be in the Bill as a further safeguard. But the safeguards, such as they are, will now rest extremely heavily on this procedure, because the one other safeguard that would normally be present—compensation for a misconceived notice—is no longer there.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Report stage
Wednesday 13th September 2023 Lords Chamber

[Lord Carrington (CB)]

My Lords, I declare my interests in landownership as set out in the register.

Somewhat reluctantly, I am retabling the amendment from Committee stage, despite the very helpful response that I received from the Minister. Amendment 246, which I propose with the support of my noble friend Lord Lytton and the noble Earl, Lord Caithness, involves the Secretary of State establishing a statutory duty of care setting out the obligations of the acquiring authority in a compulsory purchase situation. That would strengthen the obligation of the acquirer to consider, and possibly reduce, the impact of a compulsory purchase proposal on the claimant, their property and their business. The intention is to safeguard owners against the excesses of the acquiring authorities, many of which are large companies or government bodies.

The Minister, in her response, pointed to the guidance that is already in place for acquiring authorities to treat claimants with respect by undertaking early negotiations to identify what measures can be taken to mitigate the proposed schemes’ impact on land- owners. However, although the guidance is there, it really needs strengthening due to the lack of resources at acquiring authority level to understand fully and implement that guidance. A duty of care resulting from a statutory instrument will give a greater level of protection to those under threat of compulsory purchase and ensure that the acquiring authority considers it as a matter of first priority.

I cannot emphasize enough the appalling experience that greets the property owner affected by compulsory purchase. Some lose their whole property, while many others lose only a proportion, but the whole property suffers from the impacts of construction, which may go on for many years or decades, with the owner having to maintain a viable business throughout that time.

The acquirers’ responsibility is to compensate the land or business owner for their loss, but this is nearly always paid after the land has been taken, in some cases many years thereafter. This delay only adds to the loss. Anyone who has been affected by HS2, which includes me, knows exactly what I mean.

Property owners who are affected by compulsory purchase feel that their interests are often ignored by acquirers keen to deliver the scheme together with any environmental mitigation but with little consideration for the person or business that occupies that land. The statutory duty of care to consider and mitigate the impact on landowners and businesses impacted by the scheme, on top of government guidance on compulsory purchase, would rebalance the interests of delivering the scheme and reduce the impact. It would not delay or prevent schemes and could assist them by avoiding legal battles on interpretation of the guidance. It would also ensure that impacts on property owners and businesses are considered as a key part of the scheme, rather than being an afterthought considered only when compensation is due sometime later.

I hope the Minister will accept that this is a constructive amendment, designed to take much of the aggravation out of compulsory purchase while enabling sensible schemes to progress with greater consideration of the interests and livelihood of the owner. I beg to move.

[The Earl of Lytton (CB)]

My Lords, I support the noble Lord, Lord Carrington, and am a signatory to this amendment. I commend him for his succinct explanation. I also have land interests and some professional familiarity with compulsory purchase.

I have very little to add, but I simply say that the use of CPO powers, and the number of bodies exercising them directly or indirectly, is expanding. It risks subsuming the interests of the individual owner from whom rights are being compulsorily wrested. Some acquiring bodies have overriding commercial objectives, possibly only indirectly aimed at the promotion of public best interest, and I think we should be aware of that. Moreover, many of the safeguards built into the processes when they were used by what I will call the traditional acquiring authorities—for instance, government agencies, local government and so on—seem no longer to be entirely honoured in spirit. That is very important, particularly as we have an expanded use of CPO powers.

The amendment is thus a natural, logical and necessary safeguard for owners who are subject to these powers. They would, inter alia, deal with the evils of entry and taking of land without concurrent payment of compensation. That arrangement leaves a claimant on the back foot in negotiations, prejudiced financially and reorganising their affairs. Failure to adhere to the principles behind this amendment suggests a material erosion of the protocols that are familiar to us under the Human Rights Act—for the reasonable enjoyment of a citizen’s property not to be deprived without due process and for the rules-based system. That is why I support this amendment.

[Lord Stunell (LD)]

My Lords, on this side we are sympathetic to the intent of the amendment from the noble Lord, Lord Carrington, although somewhat doubtful about the mechanism he has proposed. I think we all want people who are subject to compulsory purchase orders to be treated in a humane and certainly human rights-compliant way. We do not want to return to the days of Crichel Down and everything that emerged from that.

Nevertheless, I think the noble Lord, Lord Carrington, made it clear that he saw the fundamental problem being one of resources and a search for a less mechanistic way of enforcing compulsory purchase regulations. I would be interested to hear the Minister respond and, I hope, confirm that purchasing authorities will be given support to make sure that they take that process through speedily, particularly the payment of compensation, and in a timely fashion.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Report stage
Monday 18th September 2023 Lords Chamber

Moved by

[The Earl of Lytton]

260A: After Schedule 20, insert the following new Schedule—
“SCHEDULEBUILDING SAFETY REMEDIATION SCHEMEDuty to establish the scheme
1 (1) The Secretary of State must establish, or make arrangements for the establishment of, a Building Safety Remediation Scheme (“the BSRS”).(2) The purpose of the BSRS must be to ensure that residential blocks of flats with building safety risks are made safe, mortgageable and insurable—(a) in accordance with the building safety remediation principle,(b) speedily, efficiently, effectively and proportionately,(c) without cost to leaseholders or occupiers, and(d) so far as reasonably practicable without recourse to lengthy and expensive legal proceedings.(3) For the purposes of this Schedule “building safety remediation principle” is the principle that—(a) so far as reasonably practicable, remediation costs for relevant buildings with building safety risks arising from defective construction or additional building work should be met by the developer, the principal contractor or both, and(b) where that is not reasonably practicable, or where building safety risks do not arise from defective construction or additional building work, costs should be met by the building industry.Scope of the scheme
2 The BSRS must be framed so as to apply to relevant buildings which—(a) were constructed, or subject to additional building work, on or after 1 June 1992, and(b) present building safety risks.Operation of the scheme
3 (1) The BSRS must provide for persons (including freeholders and leaseholders) to apply—(a) for a building to be recognised as a relevant building, and(b) for a relevant building to be recognised as eligible for grants in respect of the cost of remediation works.(2) The BSRS must provide—(a) for the appointment of persons (“BSRS adjudicators”) with appropriate expertise to determine, on behalf of the Secretary of State, applications under sub-paragraph (1)(a) and (b), and(b) for BSRS adjudicators to be required to exercise operational independence in making determinations under the scheme.(3) For the purposes of sub-paragraph (2), the BSRS may provide for appointments to be made by the Secretary of State or by one or more persons designated for that purpose by the Secretary of State under the scheme.(4) The BSRS must provide that determinations of BSRS adjudicators in respect of building eligibility for the scheme under paragraph 4 are final (but nothing in this sub-paragraph prevents the exercise by the High Court of its judicial review jurisdiction).Scheme supplementary regulations
4 (1) The Secretary of State must make regulations (“scheme supplementary regulations”) in respect of the BSRS.(2) Scheme supplementary regulations, in particular—(a) may make provision for determining what is to be, or not to be, treated as a relevant building for the purposes of the scheme;(b) may make provision for determining the date on which buildings were constructed or subject to additional building work; (c) may make provision for determining who is entitled to make an application under the scheme in respect of a relevant building;(d) may specify criteria to be applied by BSRS adjudicators in determining whether a relevant building presents building safety risks as a result of defective construction (and the criteria may, in particular, make provision wholly or partly by reference to building regulations or other enactments in force at the time of construction or by reference to specified classes of document);(e) may make provision permitting or requiring BSRS adjudicators to conduct tests, and requiring owners and occupiers of relevant buildings to cooperate with BSRS adjudicators in conducting tests;(f) may make provision permitting BSRS adjudicators to require local authorities or other specified classes of person to provide information or documents, and requiring persons to comply with any requirements imposed;(g) may make provision about the timing of applications and determinations;(h) may make provision about evidence to be adduced in support of an application;(i) may require or permit BSRS adjudicators to operate a rebuttable presumption of defective construction where specified classes of fact have been proved (for which purpose the regulations may make provision similar to, or applying with or without modification, any enactment);(j) may make provision about the making, processing and determination of applications under the scheme;(k) may make provision about the giving of notice to developers and others;(l) may make provision about the payment of awards;(m) may make provision about monitoring expenditure on remediation works;(n) may set a threshold for the estimated or quoted cost of remediation works below which an application for recognition cannot be made;(o) may make provision for determining, having regard in particular to the need for proportionality, the nature and extent of remediation costs which may be funded by the scheme (for which purpose “remediation costs” means any class of expenditure related to building safety risks, including, in particular, repair costs, the costs of interim mitigation or safety measures and reimbursement of or compensation for increases in insurance premiums);(p) may make provision for account to be taken of grants provided in respect of remediation works by any other scheme established by enactment or by a public authority;(q) may make provision for financial assistance provided by any other scheme established by enactment or by a public authority to be repaid out of grants under the remediation scheme;(r) may permit or require the amalgamation of multiple applications in respect of one relevant building, or of applications on behalf of the residents of one or more relevant buildings;(s) may permit or require representative applications on behalf of the residents of one or more relevant buildings;(t) may make provision about the qualifications, appointment, remuneration and conduct of BSRS adjudicators, and the regulations may, in particular—(i) provide for adjudicators to be remunerated from BSRS funds; (ii) provide for indemnities in respect of decisions taken by adjudicators (for which purpose the regulations may apply an enactment (with or without modification));(u) must include provision requiring the maintenance and publication of records of applications and determinations under the BSRS;(v) must confer a right to appeal to the First-tier Tribunal in respect of determinations as to whether a building safety risk arose from defective construction or additional building work.Scheme funding regulations
5 (1) The Secretary of State must make regulations about the funding of the BSRS and of grants made under it (“scheme funding regulations”).(2) Scheme funding regulations must aim to apply the building safety remediation principle so far as practicable.(3) For that purpose, scheme funding regulations must aim to ensure that a grant awarded under the BSRS is funded—(a) so far as possible where building safety risks arise from defective construction or additional building work, by the developer or principal contractor of the building in respect of which the grant is awarded, and(b) failing that (whether by reason of the dissolution of a developer or principal contractor, insolvency or otherwise), or where building safety risks do not arise from defective construction or additional building work, by money paid into a fund maintained through a levy on the building industry in general, or specified parts of the building industry.(4) For the purposes of achieving the objective in sub-paragraph (3)(a)—(a) the reference to the developer of a building includes a reference to any person who arranged for its construction or additional building work and for the sale of units in the building;(b) the reference to the principal contractor is a reference to the person who was responsible to the developer for the construction of a building or undertaking additional building work;(c) scheme funding regulations must permit a BSRS adjudicator to provide for an award under the scheme to be paid by one or more persons specified by the adjudicator (and awards may, in particular, provide for joint and several liability);(d) scheme funding regulations must confer a right to appeal to the First-tier Tribunal;(e) scheme funding regulations may include provision permitting a BSRS adjudicator to permit or require an award for payment by a specified person to be satisfied wholly or partly by a person connected to that person (within the meaning of the regulations, for which purpose the regulations may apply, with or without modification, section 121 of the Building Safety Act 2022 and any enactment relating to joint ventures);(f) scheme funding regulations may include provision about enforcement of liability to satisfy awards, which may, in particular—(i) provide for collection of awards as a statutory debt,(ii) include provision for interest or penalties,(iii) provide for liability to make payments pending appeal or review, and(iv) create criminal offences in connection with evasion.(5) For the purposes of achieving the objective in sub-paragraph (3)(b), scheme funding regulations— (a) must establish one or more levies to be paid by specified businesses or classes of business;(b) must make provision for determining liability to pay the levy;(c) may confer functions on BSRS adjudicators or other specified persons (which may include the Secretary of State) in respect of determination of liability to pay the levy;(d) must confer on a person determined to be liable to pay the levy the right to appeal to the First-tier Tribunal;(e) may provide for different amounts of levy to be paid by different classes of person;(f) may provide for the levy to be paid by way of one-off payments, periodic payments or both;(g) may include provision about enforcement of liability to pay the levy (which may, in particular, provide for collection of the levy as a statutory debt, include provision for interest or penalties and create criminal offences in connection with evasion);(h) must include provision about the administration of the levy by the Secretary of State, including provision as to the maintenance and publication of estimates, accounts and other records;(i) may include supplemental provision about the levy.(6) In making regulations under sub-paragraph (5), and in particular in assessing the proportionality and other fairness of any levy imposed by regulations under sub-paragraph (5), the Secretary of State must—(a) have regard to any other levy or similar imposition that appears to have a similar purpose as a levy under the scheme funding regulations, and(b) must consult persons appearing to him or her to represent the interests of persons affected by other relevant levies and impositions.(7) Scheme funding regulations may include provision about—(a) application of awards, levies and grants, including provision for holding (or return) of surplus funds;(b) the nature and extent of obligations imposed by awards (which may, in particular, provide for payments in money or services or money’s worth);(c) processes and procedures to be applied in determining applications for grants and questions of liability to awards (which may, in particular, include provision for determination wholly, partly, absolutely or contingently by arbitration, mediation or any other kind of process or procedure the Secretary of State thinks appropriate);(d) terms and conditions of awards, levies and grants;(e) appraisals, appeals and enforcement.Apportionment
6 (1) Scheme funding regulations may make provision about apportionment of liability for defective construction.(2) In particular, scheme funding regulations may provide that where a person is required to pay an award under the BSRS, that person may bring proceedings to recover a contribution from one or more persons who share responsibility for the defects in respect of which the award is made.(3) Provision made by virtue of this paragraph may—(a) confer jurisdiction on the First-tier Tribunal or on any other specified court or tribunal;(b) apply (with or without modifications) any enactment about third- party liability.Interim payments
7 (1) The Secretary of State may make interim grants to persons whom the Secretary of State believes are likely to be entitled to benefit from the remediation scheme.(2) Interim grants may be made on such terms and conditions (including as to repayment) as the Secretary of State may specify.(3) Scheme supplementary regulations—(a) may include provision for account to be taken of interim grants under this paragraph, and(b) may include other provision about interim grants under this paragraph (including provision about applications for grants, eligibility for grants and determination of applications for grants).Interpretation
8 For the purposes of this Schedule—“building safety risk” has the meaning given in section 120(5) of the Building Safety Act 2022;“building industry” has the meaning given in section 127(7) of the Building Safety Act 2022;“construction” includes any kind of building work (whether part of the original construction of a building or not) including works of improvement, repair and extension;“class” includes description;“defective construction or other building work” means construction or additional building work that—(a) contravened building regulations or other enactments in force at the time of the construction or additional building work, or(b) satisfies any other criteria specified in the BSRS or in scheme supplementary regulations;“BSRS funding regulations” has the meaning given by paragraph 5;“BSRS scheme” has the meaning given by paragraph 1;“BSRS adjudicator” has the meaning given by paragraph 3;“grant” includes loans and any other form of financial assistance (for which purpose a reference to payment includes a reference to the provision of assistance);“building safety remediation principle” has the meaning given by paragraph 1;“remediation costs” has the meaning given by paragraph 4;“relevant building” means a self-contained building, or self-contained part of a building that contains at least two dwellings;“scheme supplementary regulations” has the meaning given by paragraph 4.Consultation
9 Before making the scheme, the scheme supplementary regulations and the scheme funding regulations, the Secretary of State must consult—(a) persons appearing to represent the interests of freeholders, leaseholders or occupiers of blocks of flats with building safety risks,(b) persons appearing to represent the interests of the construction industry and related industries, and(c) such other persons as the Secretary of State thinks appropriate.Regulations
10 (1) Scheme supplementary regulations and scheme funding regulations—(a) may make provision that applies generally or only for specified purposes, (b) may make different provision for different purposes,(c) may confer functions (including discretionary functions) on specified persons or classes of person, and may provide for the Secretary of State to appoint persons to exercise functions under the regulations or the remediation scheme (whether or not on behalf of the Secretary of State), and(d) may include supplemental, consequential or transitional provision.(2) Scheme funding regulations may not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament.(3) Scheme supplementary regulations are subject to annulment in pursuance of a resolution of either House of Parliament.”Member's explanatory statement
This new Schedule would implement a building safety remediation scheme to ensure that buildings with building safety risks are put right without costs to leaseholders.

[The Earl of Lytton (CB)]

My Lords, I rise to move Amendment 260A in my name and to speak to Amendments 282J and 315B, which are linked to it. I first express my gratitude to the noble Baroness, Lady Scott of Bybrook, for her willingness to engage, and I wish her a speedy recovery and restoration to full health. However, I note with regret that a 35 or 40-minute slot is insufficient to cover the ground and that, given that the premise of my amendment has never been accepted, discussion of much of the detail has not been possible.

I make it clear from the outset that I may wish to test the opinion of the House but, before deciding that, I particularly wish to consider and gauge the views of noble Lords on a matter that I believe to be of fundamental importance to the purposes of good government, justice, equality under the law and economic stability. I refer to a crib sheet, if I may call it that, which I submitted to the department. I hope that it reached the attention of the noble Earl, should he be responding to this. I apologise for the fact that it was not sent earlier, as I had intended, which is something to do with the stability of the electrical grid in my part of West Sussex during most of yesterday.

I outlined in Committee the aims of these amendments, which have had the benefit of expert scrutiny by parliamentary counsel and construction councils, construction administrators, conveyancers, academics, property professionals and trade associations. There has been support from all these quarters. I am therefore satisfied that the amendments are technically competent, complementary to the measures already in the Building Safety Act 2022 and capable of implementation. In short, they aim to make the development and construction sector responsible for defects in buildings arising from poor building practices and to prevent the burden falling on innocent leaseholders in their homes or being funded by the taxpayer.

I remind your Lordships of the basics of Amendment 260A; I will not go into detail. First, it is aimed at simplifying establishing initial liability without a lengthy legal process. This asks the question of whether there was a significant critical defect in the original construction and, if so, who was responsible for the works, and their route to compliance. Secondly, it aims to reduce the contested areas to one largely of quantum, via an adjudication process and the First-tier Tribunal. Thirdly, it aims thereby to cut costs and risk barriers to leaseholders in getting redress directly or indirectly. Finally, it provides a backstop levy where the defects are not a result of construction failure, or else where the developer or contractor no longer exists. The intention is that this should be wide and shallow, and encompass materials, manufacturers, warranty providers, approved inspectors, specifiers and so on, as well as contractors.

My amendments mean that DLUHC would have to do things differently, but I weigh that against the current situation of allowing innocent homeowners to bear the brunt. Going forward, the incentive for housebuilders to cut corners must be replaced with an ongoing reminder to meet good construction practice at all times. The amendments also give exceptionally wide discretion to the Secretary of State in implementing proposals, subject to certain core principles. So, it is getting ahead of the process to claim, as some have, that these would not work.

More to the point, my amendments would dismantle much of the complexity the Government have decided to put in place with their own remediation scheme under the BSA. I am returning to this theme because I am not satisfied with the government response I have received to date. My case rests on one of the most fundamental principles of humankind: that if someone does something wrong and it injures another, they should provide restitution. On 13 September last week we discussed amendments to the Bill on nutrient neutrality. There were outstanding speeches from these Benches, not least from the noble Duke, the Duke of Wellington, and a stellar contribution from the noble Lord, Lord Deben. In response, the Minister stated:

“Another issue brought up by a number of noble Lords is that the developer should pay. The Government agree. It is essential that housebuilders contribute fairly, and we all agree with the principle that the polluter should pay”.—[Official Report, 13/9/23; col. 1060.]


In the context of building safety, however, it appears that the Government do not accept that same principle—or, if they do, they think it stops short of protecting all innocent leaseholders or indeed of making developers and main contractors liable for the mistakes they made at the time of construction, at a point when they had full agency and control over the construction project.

The ill effects, as we see them now, blight hundreds of thousands of leasehold homeowners who bought in good faith. I do not know the numbers but I believe there are more than 200,000, a figure that I have quoted before and the Government have not disputed. These people did not buy a product sold discounted “as seen” from a seconds rack but a full-value home, backed by warranties and certificates of every sort, covering many things that they could not possibly see or inspect for themselves.

I took away from a meeting last week with the Minister and the Bill team that the Government believe it sufficient that the BSA has widened the Defective Premises Act so that leaseholders can better pursue big corporates, via their freeholder, for redress over demonstrable failings to construct buildings to the then regulatory standards. Further, the Government believe they should do so at their own risk and expense, and to bear the consequential costs in the meantime. They also believe it is in order for affected leaseholders who are deemed non-qualified to continue to live in potentially unsafe blocks, in a financial fix and under the cloud of remediation costs.

When we discussed similar amendments to the Building Safety Act in 2022, speaker after speaker expressed a clear wish for focused, timely and effective action. As time goes by, there is a growing tally of enforced building evacuations—I believe there have been 27 since 2017—and a rising tide of leaseholders who are adversely affected. They have written to me in large numbers, some 250 since the middle of March, telling me of waking watch costs, enormous insurance rises, crippling remediation bills, properties that cannot be sold or refinanced, and lives upended. What should have been the security of their homes has turned into a financial and emotional prison. Just recently, some 51,000 people have signed a petition asking for something to be done. This is a problem that has not gone away.

So complicated are the rules under the BSA—developed by our rather process-focused administration—that even lawyers and conveyancers cannot figure them out and are now distancing themselves from handling work involving affected flats. I refer to the rules on leaseholder qualification; landlord certification; estimating remedial costs in times of rapidly rising prices; ascertaining landlord worth; the pitfalls leading to exclusions; the roulette of getting any recovery from original contractors; the programme for remediation; and the sheer arbitrariness and lack of clarity of it all.

My fear is that the financial standing of these assets is next in line. The Government assumed that landlords as building owners had the money and means to protect leaseholders. Some do but their respective interests do not coincide, and it is a moot point whether building owners are any more responsible for the construction defects in their buildings than the occupiers. The Government’s apparent predilection for charging owners with open-ended responsibilities without any clear route to cost recovery looks to me like a less than even-handed application of equality under the law.

It is also perfectly clear to me that many freeholders do not have the assets to enable them to risk taking on contractors, while others may be minded to do a disappearing act or become insolvent. I know that the Government’s proceedings against Railpen in respect of Vista Tower in Stevenage—I am sure that the noble Baroness opposite will be familiar with that one—are still stuck in the courts. In reality, however, no block owner or leaseholder collective could possibly afford to mount such a case.

Last Wednesday in the nutrient debate, if I can call it that, the Minister’s parting shot was that some £18 billion of added value to the economy was at stake, but that is not the only metric. The National Residential Landlords Association estimates—it is the only estimate that I know of—that there are 1.7 million non-qualifying leaseholders in existence. If just 10% of them are in buildings requiring significant remediation, which appears to be the general experience of building owners in terms of a percentage, even taking a well below average remediation and consequential cost per flat of, say, £20,000, that amounts to a staggering £34 billion write-down on the private sector alone, or nearly double what was bothering the Minister on Wednesday. Some observers put the damage north of £50 billion, and I can well believe it. Add in social housing and shared ownership, plus the potential sectoral damage in terms of market sentiment that I believe is now taking root, and potentially it is a lot more still.

DLUHC’s own latest data shows that the building safety fund is still taking ages to process, approve and release funds—typically more than three years, in a time of rapid inflation in construction costs. It reveals that, as at the 14th of this month, there were 2,833 remediation resident registrations in relation to non-ACM—the cladding material—private sector blocks, of which only 49 have had their problems fixed. It seems that in all this the Government are not collecting the data, still less sharing it. I have asked how many properties of 11 metres and below there are which may be affected. The Government do not seem to know this; it follows that the data on impacts is effectively unknown. How then is policy made on this matter?

I think everyone will agree that there has been a lot of time available to sort this out, so the process requires the turbocharging that my amendments would provide. I am aware that the Government’s objections to these amendments are many, but I do not believe they fully address the issues. There is a social evil taking root here, in that innocent consumers are paying heavily for the mistakes of producers. One criticism is that the amendments would require individual building assessments, and that that would slow the whole process—but how else does one identify or assess the essentially random nature of poor construction, other than on a per-building basis? Another is that there is not enough professional inspection capacity, but that applies whatever the total number of defects may be—unless, of course, the intention is simply to ignore some significant defects altogether.

I am also told that it would overstretch limited departmental resources, but it is over six years since the awful tragedy of the Grenfell Tower, and it is the job of government to take necessary action, not to wring their hands. The Government say that my solution is too complex. I say that it is not half as complex as what they have already put in place—and remember, I am not asking for a taxpayer bailout. The levy provided for in these amendments would deal with any shortfalls.

We clearly are not there yet. Conveyancing sources tell me that there is a growing trend at this very moment in contracts for sale of new flats, where there are now inserted clauses placing the entire onus for future defects on the buyer, on a “take it or leave it” basis. Meanwhile, I am not aware of any moves by the Government to remove the unfairness of excluding so many leaseholders from their scheme, or indeed of moves to put anything in place to tackle the building safety problems that I have identified.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, as my noble friend Lady Scott said in Committee when the noble Earl, Lord Lytton, brought forward his now-rebranded “polluter pays” amendments, these issues have already been debated at length in this House—I address here Amendments 260A, 282J and 315B. I agree that too many developers and landlords are being too slow to remediate buildings for which they are responsible. However, the Government have not been idle in this space; blocks of flats are being made safer as we speak. Under the regulatory regime that the noble Earl wishes to scrap and replace, 96% of all high-rise buildings with unsafe “Grenfell-style” ACM cladding have been remediated or have remedial work under way.

The leaseholder protections are showing real promise on the ground, so it would seem folly to scrap them and start again from scratch. Indeed, accepting these amendments would set back the progress of remediation by over a year as industry and leaseholders work to understand another new system, just as they are getting to grips with the Building Safety Act—the noble Baroness, Lady Taylor, was quite right to express her doubts on that score. At various points, the noble Earl has talked about his scheme sitting alongside the existing protections, but I argue strongly to your Lordships that that would be a recipe for chaos and confusion. Please do not let us land ourselves with that.

Secondly, many of your Lordships will have already taken part in debates on the regulations to give effect to our responsible actors scheme. That scheme, alongside our developer remediation contracts, requires eligible developers to fix the problems they have caused—I emphasise that clause: to fix the problems they have caused. Eligible developers who do not join the scheme and comply with its conditions will face prohibitions.

In response to the concerns of the noble Earl that the non-qualifying leaseholders are stuck in unsafe flats, as I think he put it, that is simply not true. All principal residences over 11 metres are covered by the protections. Following on from that, he expressed concern that the leaseholder protections do not protect every leaseholder. I just remind him that the direct protections that we have put in place are only part of the Government’s overall scheme. I have already referred to the responsible actors scheme and the developer remediation contracts, and I also point to the more than £5 billion set aside to replace cladding. The new powers in the Act to seek remediation contribution orders against developers, or to pursue them under the Defective Premises Act, also provide valuable indirect protection. Non-qualifying leaseholders are able to seek a remediation contribution order from the tribunal against a developer or contractor in exactly the same way as qualifying leaseholders. Let us remember that, where a developer has signed the developer remediation contract, it will fund all necessary remediation work—both cladding and non-cladding-related—irrespective of whether individual leases in those buildings qualify. Those on the current list of developers are only the first to be pursued; we have committed to expanding that list now that the regulations have been brought forward.

I make one further point. The noble Earl was concerned that the protections under the Building Safety Act remediation scheme will not apply to future buildings. The leaseholder protections address problems with buildings built poorly in the past. Part 3 of the Act raises standards for future buildings; we do not need a remediation scheme to reach into the future. All in all, I hope that, on reflection, the noble Earl will see fit to withdraw Amendment 260A and not move Amendments 282J or 315B.

I turn next to Amendments 282C, 282ND and 315A in the name of my noble friend Lord Young of Cookham. I must tell my noble friend—at the risk of him heaving a sigh—that that these issues are legally complex. What is more, unfortunately, his amendments will not address all those complexities. I can none the less reassure him and your Lordships that officials are working on producing a fix for the lease extension issue and that we will bring forward legislation as soon as possible. We are also considering carefully how we might address any unfairness produced by the issue of jointly owned properties, which my noble friend’s Amendment 282ND seeks to address. I am therefore not delivering a rebuff to my noble friend; I am simply urging him to understand that this is a set of issues that requires very careful legal dissection and working through, and that is what we are doing.

Finally, Amendment 282NF, from the noble Baroness, Lady Pinnock, and Amendment 309A in the names of my noble friend Lord Young of Cookham and the noble Baroness, Lady Pinnock, would require government to report on progress in remediating buildings under 11 metres and resident-owned buildings and to outline plans to expand the Cladding Safety Scheme. I listened to the views of the London Fire Brigade as reported by my noble friend; however, it is generally accepted that the life safety risk is proportional to the height of buildings. Lower-cost mitigations are usually more appropriate in low-rise buildings.

Given the small number of buildings under 11 metres that are likely to need remediation, our assessment remains that extending the protections for leaseholders in the Building Safety Act or our remediation funds to buildings below 11 metres is neither necessary nor proportionate. Where work is necessary, we would always expect freeholders to seek to recover costs from those who were responsible for building unsafe homes, not innocent leaseholders. Therefore, we do not intend to expand the Cladding Safety Scheme to incorporate these buildings, nor will it be possible to report on progress.

That said, I can assure the House that any resident whose landlord or building owner is proposing costly building safety remediation for a building under 11 metres should raise the matter with my department immediately, and we will investigate. Separately, the reporting that is already in place on the Responsible Actors Scheme will include progress made on all buildings in scope of that scheme, including any that are resident-owned. My noble friend Lord Young stated that resident-run buildings are excluded from the protections. They are not; the only buildings that are excluded from the protections as a class are those that are enfranchised, not those managed by residents. We have committed to consider this further and will bring proposals forward shortly.

I hope that what I have said has demonstrated to noble Lords that there are misunderstandings running through the amendments in this group. I have tried to provide reassurance, which I hope will be sufficient for the noble Earl, Lord Lytton, to withdraw his amendment. I also hope that my noble friend Lord Young and the noble Baroness, Lady Pinnock, will not see fit to press their amendments when they are reached.

[The Earl of Lytton (CB)]

My Lords, first, I thank all noble Lords who spoke in our debate on these amendments. It has certainly given me considerable food for thought. I am grateful to the noble Lord, Lord Young of Cookham, who went through all the promises that have been made but have not yet been dealt with one by one.

I believe that the exclusions are down to the funding assumptions that the Government have made from inception. I go back to something called the consolidated advice note, which, as noble Lords may recall, rather put the cat among the pigeons in terms of how extensive the problem was. Then there was a subsequent attempt to row back, as it were, on the worst effect of that by virtue of the independent expert statement, which itself came 11 months after a disastrous fire concerning Richmond House in the London Borough of Merton. I think we can all see that a process of risk management and managing political exposure is involved here. Unfortunately, that does not cut the mustard for a lot of people will still be stuck, for what seems to me to be an indefinite period, with the problems that they have.

--- Later in debate ---

I have also made it plain that I do not see any reason for this untimely, rushed and ill-considered proposal to take the Building Safety Regulator away from the Health and Safety Executive in the first place, and that is why I also have Amendments 267 and 268. I thank the noble Earl, Lord Lytton, for his support on that. The amendments seek to remove the two offending clauses from the Bill, thereby making it a better and shorter Bill. We will come to that in due course.

[The Earl of Lytton (CB)]

My Lords, I added my name to Amendments 267 and 268 tabled by the noble Lord, Lord Stunell. I think perhaps I should also have added it to Amendment 265A which he so ably introduced. There is very little that I can add to what he has said, so I will be brief.

As the noble Lord said, this is do with reputation, the disruption of potential reorganisation, a loss of momentum—which I might call continuity—and, finally, whether this lays open the opportunity for diluting the process which we agreed in the Building Safety Act and which one believes is still important today.

There are two things that I would like to point to. Part of the justification for what the Government seek to do seems to be a need to keep their options open, if I can put it that way, in relation to the awaited second Grenfell inquiry. Of course, we do not know when that will come in, but the fear seems to be that it will make recommendations that the Government will need to move resolutely to deal with. However, to try to foretell, forestall and provide for that by the process of taking the Building Safety Regulator function out of HSE and putting it in a place as yet unknown or undefined seems entirely premature. I am with the noble Lord, Lord Stunell, in the sense that does not aid the cohesion of the Building Safety Regulator function going forward.

The second thing that concerns me is that we already have two standards for dealing with what might be described as a defect. One is specified in the Building Safety Act and the other, which is not worded the same, is the standard of remediation under the pledge that constructors will sign up to. There are concerns, in particular because, under remediation schemes to which a lot of firms have signed up, they will still be using their own approved inspectors to sign off that work. We know what has happened since approved inspectors were brought in under the Building Act 1984. It amounts to marking their own homework. While I am sure that in many instances that is being done diligently, we would not be where we are now had that been done effectively, conscientiously and objectively. There are concerns that the Government’s proposals here leave too much wiggle room. I am with the noble Lord, Lord Stunell, on all three of his amendments, which I think afford valuable safeguards that we should take real notice of.

[Baroness Taylor of Stevenage (Lab)]

My Lords, before commenting on the specific amendments in this group, I thank the noble Baroness, Lady Scott of Bybrook, for responding so thoroughly to questions that were raised on this issue following our previous debate on this subject and the debate in July on the statutory instrument on the Building Safety Act.

Amendment 264 clarifies that the functions of the new regulator are those of the Health and Safety Executive. This was one of the points on which we requested clarification. I hope the Minister can clarify in response to the points made earlier by the noble Lord, Lord Stunell, what the new regulator will look like.

My noble friend Lord Rooker’s amendments would introduce a requirement on the new regulator to report on electrical safety for tower blocks awaiting remediation. That seems a very reasonable step in the light of previous discussions, and we hope the Minister will confirm that this falls into the remit of the regulator.

My noble friend also suggested, in his further amendment to Clause 223, that a new electrical safe register be introduced and, in particular, that electrical installations and testing be subject to the same level of rigour as gas installations. I cannot think of any reason why that should not be the case. I hope that, should she not clarify it today, the Minister will take that back to her department to be discussed with the new regulator.

Concerns expressed in Amendments 265A, 267 and 268 are that provisions made under the Bill could be revoked by regulation. Amendments 265 and 266 perhaps deal partially with that, but they may not be strong enough to deal with the concerns about provisions in the Building Safety Act. We note Amendment 265A in the name of the noble Lord, Lord Stunell, relating particularly to the potential for government to use regulations to amend the provisions of the Building Safety Act. We would be seriously concerned about that, so, if the noble Lord chooses to test the opinion of the House on that topic, he will have our support.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

3rd reading
Thursday 21st September 2023 Lords Chamber

[Lord Stunell (LD)]

My Lords, I am happy to take part in this debate simply because it is the last debate on the Bill in this House, at least until after the Conference Recess: we have had 16 days in Committee, eight days on Report and more than 1,000 amendments, skilfully disguised by the suffixes of letters. The noble Earl himself mentioned Amendment 247YYA as an example of how we have these invisible numbers. The Government have of course been a big contributor to the number of amendments, including 55 today. I do not object to those 55; they are a very sensible step forward to improve the Bill even further. Even so, I do not know if it is a record but the Government had, I think, four separate amendments to the Long Title of the Bill, which perhaps emphasises the point that the noble Lord, Lord Young of Cookham, made about the process.

Whatever our criticisms of the Bill, though, it leaves this House much better than it arrived, and I want to thank a wide range of people for helping that to be the case, not least the ministerial team. I add my thanks to the noble Baroness, Lady Scott of Bybrook, for her work in leading the ministerial team, and to the noble Earl and some other Ministers who stepped in at short notice, including the noble Baroness, Lady Swinburne, just last week. In my contact with the officials in the department, they were always polite, considerate and helpful. Catherine Canning last week was a very good and able representative of the Minister’s point of view in our discussions. So, whatever the criticisms of the Bill and the form in which it is now, I just say to the noble Earl that I hope that the ministerial team will work with their colleagues in the subsequent write-rounds and encourage them to the maximum extent possible to accept all of your Lordships’ valuable amendments in the other place, so that they can reduce the amount of ping-pong to the absolute minimum and we can keep the famous table tennis ball on the other side of the net.

I do not want to omit from my thanks the work there has been co-operatively between noble Lords in the Labour Party and ourselves, but also with our Cross-Bench friends and indeed with some of our friends on the Conservative Benches as well. Collectively, we have shown that it is possible to scrutinise thoroughly, to improve legislation and to produce an outcome that we can take some pride in—perhaps muted pride in some parts but, nevertheless, it is a step forward.

Behind the scenes, in our case I have the amazing and redoubtable Sarah Pughe, who has done a fantastic job supporting colleagues here in the Chamber with her drafting skills and her knowledge of parliamentary procedures. So, the Bill goes back to the Commons. I hope that when it comes back to us, it will be as near as possible the same document that we are sending to them.

[The Earl of Lytton (CB)]

My Lords, as it is not customary for anyone on these Benches to speak on their behalf, I just add thanks on my own behalf, which I hope will be shared by colleagues, to the Minister, particularly for his appreciation of the contribution made from these Benches. Of course, I send my best wishes to the noble Baroness, Lady Scott of Bybrook. Her courtesy throughout has been outstanding and her tenacity to be admired, and I add my best wishes for her restoration to good health as soon as possible. I add my thanks to the Bill team, even if we did not agree on quite a number of points, and to our clerks. I particularly thank the noble Earl’s colleague, the noble Lord, Lord Parkinson of Whitley Bay, for the way in which he responded to the question of building preservation notices, to the CLA, of which I am a member, and Historic Houses for their valuable input on that.

On the other matter of interest to me, namely building safety remediation, I am of course sorry that I could not persuade the Government or your Lordships to support a different way forward, but I owe a tremendous debt of gratitude to people outside—they know who they are and I will not mention them by name, but they have dedicated their time free and without any benefit to themselves to assist me with their comments and their critique. I also thank the many other experts, and professional and trade bodies, who were willing to share their thoughts with me.

I particularly express thanks to Amanda Walker, a leaseholder, for her courage in coming forward with her story, and the hundreds of other leaseholders who wrote to me with theirs. I thank Jake Fisher for his online petition, which gained 50,000 signatures in 25 days. My focus throughout has been on them and getting fair treatment for affected leaseholders generally, even if my approach has not always been fully understood or appreciated. I do not intend to give up trying.

Finally, I am most grateful for the support across the House for the general principle sitting behind the fact that we all, I think, believe that leaseholders should not pay for construction defects for which they are blameless. There is clearly a lot more work to be done, but I am enormously grateful for the general acceptance across the House of that principle.

[Baroness Hayman of Ullock (Lab)]

My Lords, I start by thanking the noble Earl for his very kind comments around the constructive work that we have all been doing together. I send our very best wishes to the noble Baroness, Lady Scott of Bybrook, who has been a remarkable workhorse on the Bill. Her door has always been open to us for any discussion and I thank her very much for that. Alongside her, a number of people need to be given a Levelling-up and Regeneration Bill endurance award, because it really has felt a bit like that at times: we have been ploughing through this since January. So, I thank her and the noble Earl, Lord Howe, but also the noble Baroness, Lady Bloomfield. People seem to have forgotten—we have been going on for so long—that she did an enormous amount of work in the early stages of the Bill, so we want to pass our thanks to her as well. We also thank the noble Baroness, Lady Swinburne, and all the visiting Ministers who have come in and talked to the different areas of their expertise.

We have done extremely constructive Cross-Bench work with the Government, noble Lords on the Government Benches, Cross-Benchers and our Liberal Democrat colleagues, particularly the noble Baroness, Lady Pinnock. It is very good to have been able to work so constructively on the, unusually, many different issues in this Bill that we have had to discuss, tackle and understand. On that note, I also thank all the organisations and NGOs that have provided so much information, time and support to us in understanding some of the more complex areas. I have a whole book of all their different names, which would take too long to go through—if you took part, we are very grateful; thank you for making the Bill better than when it arrived here.

Many Back-Benchers worked incredibly hard on this and we should be very grateful to them. I particularly thank my noble friend Lady Taylor of Stevenage, who has been the most tremendous support to me all the way through. I could not have done it without her help. I also thank our team; Ben Wood in our office has worked incredibly hard and tirelessly on this Bill, through recess and weekends. We have asked so much of him and he has always delivered everything. My final thank you is to the doorkeepers, who have sat through a few late nights with us on this and have always kept a smile.

There are quite a number of outstanding issues that we will come back to after the Recess, on which this House believes that the Bill could be improved. I hope that, ahead of ping-pong, when we revisit these issues, the Government will continue to work constructively with those of us in this House who believe they are important to improve the Bill. Our door is always open. We look forward to hearing from the Government on some of those issues.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Consideration of Commons amendments
Monday 23rd October 2023 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I have an interest in both the items that we are considering in this group. For the avoidance of doubt, I declare my involvement as a practising but nearly completely retired chartered surveyor with a knowledge of the leasehold and construction sectors.

The noble Lord, Lord Stunell, deserves the full appreciation of the House for what I can only describe as a progressive defenestration of the fuzzy edges that have surrounded the question of the building safety regulator. He has whittled it down to the last elements, as to whether this is a proposal for a like-for-like transfer from one jurisdiction, if I can term departments in that sense, to another—or whether, as he had previously identified, some other morphing process was going on behind the scenes. I supported him previously in this, and I support him again in his endeavours here. This really boils down to the last element, as to whether there is a change.

One could be forgiven for suspending a certain amount of belief here. If there is going to be the process of transferring a body from the Health and Safety Executive to some other framework, known or unknown, why would one run the risk of the delays, disruption and everything else that would be involved with that if it were not for the fact that some other factor was involved? Motion X1 as proposed by the noble Lord, Lord Stunell, is a significant litmus test of what is involved. I encourage the Minister to consider very carefully whether the Government mean what they say in saying that it is a like-for-like transfer from one authority to another, or whether in reality it conceals some other paradigm shift. That is very important.

I turn to the amendment proposed by the noble Lord, Lord Young of Cookham. I apologise for the fact that his colleague has had to use my comments from a previous stage in this debate to tell him that his approach is no good. Of course, my comments were made in the context of saying that it has a technical deficiency. I was not in any way intending to suggest that the direction of travel in which he was engaged was faulty or in any other way imbued with anything other than the highest principles. He and I share a great deal of what has happened here.

Again, the noble Lord is absolutely right in proposing Motion ZC1—and I was pleased that he referred, obiter as it were, to the problem with the exceptions. What has happened here is a sort of drawbridge approach to the liability and scope of the Building Safety Act, and it is that which creates these cliff-edge approaches to who is qualified, whether their funding qualifies or excludes them, and so on and so forth. That is what has been dogging everybody all the way along the line. In reality, that delineation of the protections under the Building Safety Act is pernicious, because they are protections that any Government should apply in response to a serious and systemic failure in the home building industry to deliver adequate quality in building safety terms—and, may I say, presided over by nearly 40 years of ineffective regulatory control of building standards.

To expand a little, the Government’s resistance to anything beyond the straitjacket of parameters relating to the scope of leasehold protections seems to be governed by an entirely arbitrary approach and unwillingness even to collect data, understand implications or assess risk—I refer specially to those non-qualified leaseholders to which the noble Lord referred. My aim in all this has been to approach the matter on a much broader spectrum. The noble Lord and I shared an amendment to the Building Safety Act 18 months ago, and I think he has felt obliged to whittle it down evermore to try to get to something that he can achieve here. I absolutely applaud his persistence—but I am forced to suggest that, in the absence of any risk assessment, any government response to what may come down the road will be blindsided and ineffective. Hearing or speaking no evil does not prevent evils occurring—in this case, to hundreds of thousands of innocent lease payers, to market sectors, to valuation, to lending, to regeneration of urban areas and to new homes targets generally. I have said all this before, and I apologise for repeating it.

The noble Lord has been assiduous in his campaigning. With regard to Motion ZC1, I do not know how many leaseholders might be affected by this, but I suspect that it is actually quite a small cohort, and the Government should accept it and not allow this exclusion process or drawbridge approach to cut them off. Of course, I tried to address the whole thing on a much wider scope, but to no avail, which is why, when my words are used as a reason for denying the noble Lord the fruits of his endeavours, I have to bear in mind that I seem to have been assiduously ignored throughout this, up until today, when my words are used by the Minister against his own Back-Bencher. There is something faintly quizzical about that whole arrangement.

I hope that the Minister will at least indicate that the Government are cognisant of the serious, ongoing and growing problems arising here—to finance, to a whole sector, to hundreds of thousands, a very large number, of excluded leaseholders, and much more besides. If the Government do not recognise that, we are in for very serious problems indeed.

[Baroness Pinnock (LD)]

My Lords, the very fact that these two issues remain for this Bill demonstrates that the Building Safety Act is, sadly, unfinished business. Although the matters will not be concluded today, I can be sure that they will be raised in future legislation in this House, because they need to be resolved. Having said that, I support what the noble Lord, Lord Young of Cookham, said about non-qualifying leaseholders. It is a large group which deserves not to be neglected, and I support my noble friend’s valiant efforts in getting the regulation appropriate to the need.

Levelling-up and Regeneration Bill

Earl of Lytton Excerpts

Consideration of Commons amendments
Wednesday 25th October 2023 Lords Chamber

[Lord Ravensdale (CB)]

My Lords, I shall speak to Motion B. I declare my interests as set out in the register. I thank the noble Baroness, Lady Hayman of Ullock, the noble Lords, Lord Lansley, Lord Teverson and Lord Hunt, as well as the noble Baroness, Lady Hayman, all of whom supported the amendment at earlier stages.

I particularly thank the Minister for coming back with the government amendment. Although it does not give us everything that we asked for, it constitutes great progress in this area. It ensures that climate mitigation and adaptation will be considered in the national development management policies, and, looking at the wider context of plans in the Bill, will ensure that it is included and will then be a compulsory part of decision-making. Therefore, it goes some way towards giving us what we were after, and I am grateful to the Minister for coming back with that substantive amendment.

I have one small point. In the absence of a definition of climate change mitigation and adaptation in the amendment, perhaps the Minister might consider including the targets, with reference to the Climate Change Act and the Environment Act, in the Explanatory Notes to the Bill.

I welcome the comments made by the Minister in the other place that the Government intend to do a fuller review of the NPPF, to ensure that it contributes to climate change mitigation and adaptation as fully as possible, following Royal Assent. I hope the Government seize the opportunity here to strengthen chapter 14 of the NPPF to specify that, in determining planning applications, decision-makers must take account of climate change mitigation and adaptation.

The government amendment embedding climate and the environment in planning decision-making will have a great effect on getting clean infrastructure and sustainable homes built right across the country. Importantly, it will also do much to empower local authorities and regions to play their part in the net-zero transition, which they all want to do. We still see a need for further legislative work in this area—particularly on a move towards a statutory duty, as we propose—but, again, I am grateful for the progress that has been made.

Lastly, I thank all noble Lords who voted for my amendment and helped to get it over the line in a very close vote on Monday.

[The Earl of Lytton (CB)]

My Lords, I shall comment on each of the amendments. First, I commiserate with the noble Baroness, Lady McIntosh of Pickering. I do so as a past president of the National Association of Local Councils, the parent of parish and town councils in this country, which would dearly have loved to have had the facility to vary the way in which it deals with meetings. I am sorry that the Government have not seen fit to acquiesce to any of this. The Minister suggested that the measure went too far and that it would open the floodgates to local government holding virtual meetings as a matter of course. Were that his fear, the Government’s fear or that of the other place, it seems to me that it would have been perfectly possible to come back with a proviso that the Secretary of State would make regulation.

One matter that has never been explained to my satisfaction is the juxtaposition—the fact that, by definition, accountability is somehow measured by physical presence. I do not get that, and I do not think there will be many Members of this House present today who will get it. This issue will come back through sheer force of practicality and necessity. We have to move into the modern age, in that sense. I will leave my comments on that there.

I congratulate the noble Lord, Lord Ravensdale, on his success in getting what I can only describe as the obvious provision into this Bill, namely that we have to take climate change seriously and that it underpins everything that we do. To that extent, it was inevitable—if not in this Bill then in very short order—that something would have to be included somewhere in primary legislation, but I congratulate him on his persistence in getting this far. Even if it is not the whole bun, it is certainly more than a currant in the bun and he is to be congratulated.

In that context, there are other things in the Bill that have been left on the cutting- room floor. I am sorry that the noble Lord, Lord Crisp, is not here at the moment. His amendment on healthy homes is about something that is inevitably going to come back. It is not going to disappear; this is going to have to be the benchmark whereby society expects homes to be created.

The series of amendments which I have been trying to get through unsuccessfully was to do with building safety remediation. The fact is that so many leasehold homes are unprotected yet are faced with remediation costs and liabilities, without which they will not get insurance at any sensible cost. These homes are not excluded from the necessity of remediation by virtue of their height, whether it be 11 metres and below or above 11 metres, because the Building Safety Act 2022 says that it will cover all these other buildings.

It is simply not correct that somehow these homes escape the inevitable consequences of that. That is going to come home to roost because there is an entire market sector—an entire financial sector—that is dependent upon that being resolved. If it is not resolved now in this Bill, as it clearly will not be, then it will come back in short order because this is a matter of an existential threat to leasehold tenure, or indeed whatever tenure there might be instead of leasehold. If you have a building in multiple occupation, where different parts are apartments, this problem is going to come home to roost so long as there are defects caused in the original construction and the constructor and developer are able to walk away from that liability.

In congratulating the noble Lord, Lord Ravensdale, on getting his motherhood and apple pie amendment passed, let me remind your Lordships that other bits that have been left behind are also going to come back and haunt us as things go forward.

[The Duke of Montrose (Con)]

With the leave of your Lordships, I will touch on another small point. In Monday’s Hansard, the heading for this Bill said that legislative consent had been obtained from the Welsh Government but that the Government were still looking for legislative consent from the Scottish Government. In fact, a Scottish Government paper relating all the trials and tribulations that my noble friend had been through—it had 26 pages—was still operating. Are we still looking for more consent from that direction?