Levelling-up and Regeneration Bill

Lord Thurlow Excerpts

2nd reading
Tuesday 17th January 2023 Lords Chamber

[Lord Thurlow (CB)]

My Lords, I add my voice of welcome to the noble Baroness, Lady Anderson of Stoke-on-Trent, and congratulate her on her excellent maiden speech. We welcome her to this House and look forward to her contributions in times to come.

Like many other noble Lords, I looked at this Bill and simply read “Planning Bill”. It seems to me overwhelmingly so and that is where I wish to contribute. In this regard, I fear the Bill has missed important opportunities. I declare my property interests as in the register and as a former chartered surveyor.

As a former member of the RICS, I will begin with a brief reference to Clause 213, which follows the Bichard review—I do not see the noble Lord in his place, but he may be speaking later. It is a very short clause, with five subsections. The RICS deserves this close focus from us following the mess it has got itself into in recent years. My only amendment would be to extend the period between compulsory internal reviews to 10 years rather than five, to avoid the risk of a process of almost continuous review.

I too am interested in the briefings from a number of charities and other lobby groups. Generation Rent referred to 29 homes a day being lost from the rented sector. Transferring these thousands and thousands of homes to holiday accommodation and short-term rentals brings a significant tax benefit to investors and a severe loss of tax revenue to the councils concerned. The investor benefits are non-domestic rates, where there are reliefs for small businesses; mortgage interest offsetting, which is not available to home owners; and a less stringent regulatory environment. Yet these changes of use from homes to short-term lets increase local resentment from communities unable to match the deep pockets of the highly geared investors. Much higher loan-to-value mortgages are available to businesses than through the affordability tests required of young, aspiring families wishing to live in their traditional communities. This should be a central plank of the Bill.

The Shelter report has been referred to. That under 3,000 social rented homes were provided in 2022 from Section 106 agreements is a complete disgrace. With council house waiting lists at 1.2 million, that provides less than 0.25% of the council house waiting list requirement—it does not scratch the surface. Since 1980, almost 2 million social housing unit sales have taken place. I agree with the noble Baroness, Lady Thornhill, that we must abandon “affordable”. It is out of context. We must focus on social housing. We are faced with a crisis in social housing, and this Bill is a great opportunity to fix it, but it fails. What will ensure the provision of social housing? The noble Baroness, Lady Warwick of Undercliffe, made this point very clearly.

There are positives in this Bill. There is more local focus, and it is better plan led, but, frankly, housing is meant to have been plan led for years. The focus on heritage assets is good, enhancing enforcement powers is vital, and increasing planning fees is welcome. However, the 12 levelling-up missions at the start of the Bill are all very well, but they read as big woolly statements that count for little. Principal among the negatives, in my view, is the resourcing of planning departments. These are the crucible of good planning decisions, and yet for years there has been a crisis of turnover in planning departments from the planning professionals. There is a shortage of experienced and skilled planning individuals. There is a huge financial resource problem. The prohibitive costs of appeals stop a lot of planning authorities or councils engaging in fighting decisions that they think mistaken and that have been forced against them.

This Bill is the best opportunity for years for more numerous social housing units, which must be provided. That crisis is just getting worse.

Levelling-up and Regeneration Bill

Lord Thurlow Excerpts

Committee stage
Wednesday 22nd February 2023 Lords Chamber

[Baroness Pinnock (LD)]

My Lords, good debate. I agree.

[Lord Thurlow (CB)]

My Lords, I was concerned that, after quite a sky-level discussion of missions and strategy and things, Amendment 42 was going to be very specific and granular. We have had some outstandingly worthwhile speeches in the last few minutes, and I congratulate all those who sponsored the Bill and who have spoken so far.

I was going to speak in a granular sense as well about insurance, proposed new subsection 3(e) in the nine small but specific letters of this amendment that we are forcing the Government to address, if it is adopted, in the event that a report says that this should be done in the interests of levelling up. We have had such a good exposition on insurance scams from the noble Baroness, Lady Fox of Buckley, that I am not going to say what I was going to, which would only repeat much of what the noble Baroness said—but I do hope that we can get into the granular level of these injustices for leaseholders as the Bill progresses.

Levelling-up and Regeneration Bill

Lord Thurlow Excerpts

Committee stage
Thursday 20th April 2023 Lords Chamber

Lastly, I reference Amendment 262, about national parks and areas of outstanding natural beauty. The noble Baroness, Lady Taylor of Stevenage, raised them, and I agree with what she said. If we are to retain the landscape value, which is the purpose of these definitions, we must enable local people to have homes that they can afford—hence the amendment in my name. With that, I look forward to what the Minister has to say on this very important debate.

[Lord Thurlow (CB)]

My Lords, before we conclude this group, I start by saying that I do not know how any Government with a social conscience could listen to our debate for the last couple of hours without feeling an urgent desire to scrap the right to buy.

I support Amendment 438 in the name of the noble Lord, Lord Best, concerning the sale of higher-value council residential properties. We must not forget that a lot of them are very old, they may have a lot of bedrooms, and they may be under-occupied, as we understand it, and very expensive to maintain—all good reasons for selling them. But we have a chronic shortage of housing. We all know that; we have heard it repeatedly today. If you geometrically increase that to the chronic shortage of social housing, or affordable housing, it is a crisis. The proceeds of all council residential property sales should be reinvested into social housing and affordable housing. They are not, as we have heard again and again. The failure to replace the units lost by the right to buy—the noble Lord, Lord Stunell, referred to it very eloquently—is a disgrace.

The private developers, who build large numbers of residential units for private sale are under an obligation to provide an allocation under the Section 106 agreements for affordable housing, but this is abused by developers—everyone in the industry knows that. The affordable housing obligation is subject to something called a financial viability appraisal. The bigger developers are frequently huge, multi-million-pound public companies; they have the resources, expertise and firepower to employ legal advisers at the highest and most expensive level to provide the financial viability assessment that suits their purposes. There is no possibility of local authorities being able to take on this challenge, partly because they would have to do it so frequently, and partly because they are short of funds in the first place and hardly able to challenge planning applications even on a private level from time to time. I am afraid that there is very little likelihood of the numbers of social or affordable housing being increased in the short-term. I conclude that—

[Lord Stunell (LD)]

I thank the noble Lord for giving way. Does he agree that a compounding factor is that the calculations of viability studies are kept secret and that, if they were more transparently available, some of the abuse that he quite rightly refers to would be reduced?

[Lord Thurlow (CB)]

I thank the noble Lord for his comment. I agree entirely with what he says. Without being able to challenge line-by-line a financial viability appraisal, it becomes an impossible task. A lot of the elements of financial appraisals are subjective, and value is therefore very much in the eye of the beholder. I absolutely agree with the noble Lord’s comment. However, until developers are required to provide sufficient social housing, together with the contribution from government sources, I unconditionally support the amendment tabled by the noble Lord, Lord Best.

[The Parliamentary Under-Secretary of State, Department for Levellin Up, Housing & Communities (Baroness Scott of Bybrook) (Con)]

My Lords, I thank my noble friend Lord Young of Cookham for his explanation of the difficult decisions that social landlords must navigate through with the competing requirements on their rental amounts. That is really important; it is not just about building other properties—there are many other pressures that we continue to put upon them.

Amendment 241A, and Amendments 242 and 242ZA, tabled by the noble Lord, Lord Stunell, relate to the definition of affordable housing. It is right to raise the importance of ensuring that affordable housing meets the needs of those who require it. Before addressing the amendments specifically, I assure noble Lords that the Government recognise the need to increase the supply of the most affordable type of affordable housing—that is to say, let at social rent. That is reflected in our commitment in the levelling-up White Paper to increasing the amount of social housing available over time to provide the most affordable housing for those who need it. A large number of new houses to be delivered through our £11.5 billion affordable homes programme will be for social rent.

The consultation that we published before Christmas on the NPPF also recognised the need for more social rent homes. Subject to the outcome of that consultation, we are proposing to make changes to the NPPF to make it clear that local planning authorities should give greater importance in planning to social rent homes when addressing their overall housing requirements in their development plans and making planning decisions. However, we also recognise that local authorities need flexibility to deliver exactly what is needed in their area, and this may vary depending on local circumstances. We want to ensure that, when there is innovation in models for the delivery of much-needed housing to meet the needs of those who require it, we can flex the system to incorporate such innovation.

So, we are aiming for a “Goldilocks zone”. If we define affordable housing too strictly either within the Bill or the NPPF, we risk stripping local authorities of their flexibility to decide what is appropriate in their area. But, if we leave the definition of affordable housing entirely to local authorities, we risk losing the levers to drive important government ambitions, including those relating to the increased delivery of social rent. That is why we are keen to maintain the existing approach, in which the Government set the direction through policy and regulation, while also allowing space for local authorities to shape this approach to best meet local need.

It is for that reason that I am concerned that Amendments 241A, 242 and 242ZA, which are all concerned with linking the definition of affordable housing to a specific measure of income, would be too restrictive. In the National Planning Policy Framework, affordable housing is described as housing for sale or rent to those whose needs are not met by the market and which complies with one or more specific definitions. Those specific definitions encompass several different types of accommodation, to meet the housing needs of a range of people in different circumstances and housing markets.

This includes affordable rent as well as social rent homes. Affordable rent was introduced in 2011 to make it possible to deliver a larger number of affordable homes for a given amount of public investment. This has helped to support the delivery of over 632,600 affordable homes since 2010. Of that total, more than 440,000 were homes for rent and, of these, more than 162,000 were for social rent.

The definition in the National Planning Policy Framework, to be read alongside relevant Written Ministerial Statements and guidance, also encompasses a range of options, including shared ownership and First Homes, that offer routes into home ownership for households whose needs are not met by the market. These options are typically available at a price below market value. Eligibility can also be assessed in relation to overall household income, or in reference to local incomes and house prices.

In relation to shared ownership specifically, the Government understand the need to maximise the scheme’s affordability both at the initial point of purchase and over the longer term. That is why shared ownership is specifically designed to enable prospective buyers to purchase the right percentage share of their home for them, based on an affordability assessment conducted by an independent financial adviser. By linking shared ownership status as a form of affordable housing to a specific measure of income, we would be removing this much-needed flexibility to tailor the scheme to the individual circumstances of prospective buyers.

In relation to compulsory purchase orders and the community infrastructure levy—and its replacement, the infrastructure levy—the definition of affordable housing is linked to the definition of social housing in the Housing and Regeneration Act 2008. This definition encompasses both “low-cost rental accommodation” and “low-cost home ownership accommodation”. There is flexibility to add other descriptions of housing via regulations.

This ensures that regulations can then be amended so that definitions for the purposes of the community infrastructure fund can also be updated. This approach has been maintained in the Bill for those areas which touch on developer contributions: the infrastructure levy, street votes and community land auctions.

It is right to preserve this flexibility, alongside our proposal that national planning policy should place much greater value on homes for social rent. I therefore hope that the right reverend Prelate and the noble Lord, Lord Stunell, will not press their amendments.

I turn next to Amendments 262 and 500 in the names of the noble Baronesses, Lady Pinnock and Lady Taylor of Stevenage. These amendments seek to enable local authorities to mandate that new housing under their jurisdiction be affordable; to define “affordable” for that purpose; and to enable Ministers to set legally binding targets for the construction of social housing.

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[Lord Shipley (LD)]

My Lords, I agree strongly with what the noble Lord, Lord Carrington of Fulham, just said about Amendments 312G and 312H, as well as with what the noble Baroness, Lady Andrews, said about them. This is a particularly serious matter and I hope that the Government will pay due attention. A range of issues has been raised in this group, the comments made by the noble Lord, Lord Carrington, on timelines might be a possible way forward for discussion and prove productive.

I have had concerns for some time about permitted development rights, feeling that in some cases they are simply too loose. My previous concerns have related, for example, to conversions of offices to residential flats for sale, which often reduces the total number of places where people can go to work and increases the distances to where their place of work may then have to be. Very often, permitted development rights are used for short-term development reasons but where those reasons may not be in the long-term interests of a local area, and we need to remember that long term.

I have put my name to Amendments 312G and 312H alongside those of the noble Baroness, Lady Andrews, and the noble Lord, Lord Carrington of Fulham, because there is another aspect of permitted development rights that I believe needs reform in the interests of maintaining our heritage. According to the Royal Institute of British Architects, approximately 50,000 buildings are demolished each year. Many of them may well be unfit or unsuitable for the modern age, and demolition is understandable in those cases where they are going to be replaced with something better.

However, that is not always the case, as we have heard from previous speakers. The Victorian Society has produced evidence that high-quality historic buildings are being demolished when they still have a useful purpose. Many buildings are not listed when they could be. I have concluded that there is a gap in our regulations, which should require that older buildings, at least, that are not listed, should have to undergo a further test. That test is, I suggest, the planning system, which could consider demolition as part of a redevelopment application. If there is no redevelopment application, there is no obvious reason to demolish the building, where it is safe. That could end up with an empty site for a long time, or a later application for a worse development than the building demolished.

These arguments relate to Amendment 312G, but Amendment 312H is also critical. It requires planning permission to demolish locally listed buildings. These lists exist for a reason, and demolition should not be treated lightly. Strangely, not all local councils have local lists anyway, which is another concern.

It should not be possible for buildings on a local list to be demolished without planning permission if they are outside a conservation area—rules currently apply if they are inside a conservation area. I ask the Minister: what is the point of a local list otherwise? Local lists need protection from poor, short-term decisions on demolition which are contrary to our long-term heritage interests. This is about buildings that matter to local people and future-proofing our heritage, and I very much hope the Minister will concur.

[Lord Thurlow (CB)]

My Lords, first, I simply put right a matter of record. I failed to declare my interests in our debate before lunch. I have two buy-to-let properties, as marked on the register.

I now briefly reference Amendment 247B from the noble Lord, Lord Cormack, ably introduced by the noble Lord, Lord Carrington of Fulham. I refer to our heritage assets in the context of properties, as well as statues and artwork. In the UK, a disproportionately small minority can cause heritage assets to be removed from public view, whether they are in public or private ownership or locations.

Furthermore, the world we live in of modern development seldom includes a requirement on developers to contribute to what I think is referred to as the public realm. Most larger developments, as we have heard from the noble Lord, Lord Carrington, are built to minimum cost. We must not forget that good architecture and good design—itself expensive—is a great contribution to the public realm. The presence of statues and monuments, and good building design is a really important contribution to society. Planning applications should have a public realm box, simply to ask whether they are making any contribution to the public realm and heritage assets. The amendment of the noble Lord, Lord Cormack, should also refer to heritage assets which are stored out of sight and yet are in public ownership.

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, this group of amendments relates to heritage, assets of community value and permitted development rights for demolition of buildings. I am pleased to be responding as Minister for Heritage, and I am very happy to discuss these matters with individual noble Lords, as I speak for the first time on this Bill.

Amendment 243, tabled by the noble Baroness, Lady Taylor of Stevenage, and moved by the noble Baroness, Lady Hayman of Ullock, would require the Secretary of State to publish a review of local heritage lists and the results of the 2018 review of the non-statutory guidance on assets of community value. That review was undertaken to shape the future direction of the policy in the levelling-up White Paper that His Majesty’s Government committed to and explore how the existing community asset transfer and asset of community value schemes can be enhanced. We will continue to make funds available to groups through the community ownership fund.

Regarding the review of local heritage lists, the Government recognise the importance of identifying and managing those parts of the historic environment which are valued by their community. We have given £1.5 million to 22 places across England to support local planning authorities and their residents to develop new and update local heritage lists. Our intention is that the lessons learned from that work will be shared with other local authorities so that they too can benefit from the good practice that is building up in this area. As part of the development of the new national planning policy framework, we will also develop new proposals for statutory national development management policies, including policies to protect local heritage assets. Such proposals will be subject to future consultation; we would not want to pre-empt the outcome of that consultation by taking steps such as those envisaged in this amendment right now.

Amendment 246, also tabled by the noble Baroness, Lady Taylor, would require draft legislation to reform assets of community value to be published within 90 days of Royal Assent of this Bill. Community assets play a vital role in creating thriving neighbourhoods. The assets of community value scheme enables communities and parish councils with the right to register a building or piece of land as an asset of community value if the principal use of the asset furthers their community’s well-being or social interests and is likely to do so in future. The scheme has been successful in helping community groups to identify important local assets at risk of loss. As I have mentioned, the levelling-up White Paper committed us to consider how the existing assets of community value framework can be enhanced. We must ensure that any changes to the legislation are workable in practice. To do this in a meaningful way needs consultation with all the parties that it will affect, including community groups, local authorities which are responsible for listing assets, and businesses and private individuals who are property owners. An amendment such as this risks creating legislation which does not work in practice. The framework must balance community power and the ability to safeguard community assets in a way that is fair, targeted and proportionate. We are committed to exporting the scope for improvements which can maintain this important balance, but it is important that we do so in a way which gives time with those with an interest to reflect on their experience and any proposals for change.

Amendment 244, also tabled by the noble Baroness, Lady Taylor, would mean that when deciding 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. Clause 96 addresses a gap in the enforcement powers available to local authorities in relation to listed buildings, which will help to protect these irreplaceable assets for generations to come. While under the Town and Country Planning Act 1990 local authorities have the power to serve temporary stop notices, there is currently no equivalent power in relation to listed buildings. Clause 96 amends the Planning (Listed Buildings and Conservation Areas) Act 1990 to give local planning authorities the power to issue temporary stop notices in relation to unauthorised works to a listed building in England.

The noble Baroness’s amendment seeks to add a requirement for local planning authorities to have regard to the tenancy status of the occupier and their level of responsibility. Temporary stop notices are an existing enforcement tool which local planning authorities are accustomed to issuing. Those planning authorities have experience of considering matters such as tenancy status and the level of responsibility for works carried out when they serve such notices, which would also apply in this context. The Government believe that the local planning authorities do not require the additional guidance that this amendment would provide, so they do not feel that it is necessary.

The noble Baroness, Lady Hayman of Ullock, asked me how local authorities can identify the owner of the properties when sending out a temporary stop notice. They can use a variety of sources: for instance, council tax records, planning application registers, and the Land Registry are some of the open sources of information that they are already able to consult. Usually, they would do everything they can to identify to whom it should best be served, and it can indeed be to a variety of people.

Levelling-up and Regeneration Bill

Lord Thurlow Excerpts

Committee stage
Wednesday 3rd May 2023 Lords Chamber

Debate on Amendment 292 resumed.

[Lord Thurlow (CB)]

My Lords, I want to make a brief comment on the subject of hope value, following the very interesting observations by a number of Peers. I fear there has been a bit of a misunderstanding about the concept. Market value for property is simply what someone will pay for it, no more and no less. If that happens to include a bit of a bet that there might be an uplift for a change of use or for a planning consent or development, they may take that risk, and they may or may not be rewarded. It is a subjective matter, not something a valuer can readily simply calculate, with the usual variables. It is a risk.

What has not been mentioned in this part of the debate is that the infrastructure levy we are discussing will reduce hope value. The means by which this will occur are simply that when the infrastructure levy arrangements become clearer, the cost of the levy to a developer in that example, which is the one we have been talking a lot about, will be deducted from the price offered for the land—the farmer’s field or whatever it may be. I agree with the noble Lord, Lord Carrington, that it cannot be right to force a sale at something less than the property is worth. It is a fundamental human right, a principle of the rule of law. So, I just want that to be more clearly understood: hope value is not some evil thing; it is a risk and it may or may not be taken by a purchaser.

Levelling-up and Regeneration Bill

Lord Thurlow Excerpts

Committee stage
Thursday 18th May 2023 Lords Chamber

[Baroness Taylor of Stevenage (Lab)]

Madam Deputy Chairman, we spoke to our amendments in the previous session, so we move on to the debate on the other amendments.

[Lord Thurlow (CB)]

In the absence of my noble and learned friend Lord Etherton, I will begin this debate with specific reference to Amendments 332, 333 and 341.

[The Deputy Chairman of Committees (Baroness Bull) (CB)]

I remind the Committee that we are still debating the group beginning with Amendment 313, if any noble Lord wishes to speak on amendments within that group.

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[Lord Etherton (CB)]

My Lords, I will speak to my Amendments 332, 333 and 341. I am extremely grateful to the noble Lord, Lord Thurlow, for co-signing them. I entirely agree with much that the noble Lord, Lord Best, said. A whole variety of the amendments in this group are aimed at the same principle: how best to increase decent and affordable housing, particularly social rented housing, for those who so badly need it.

Amendments 332 and 333 concern the setting of infrastructure levy rates under new Section 204G of the Planning Act 2008, to be inserted by Schedule 11 to the Bill. Currently under that provision the only requirement in setting the infrastructure levy rates is to have regard to the desirability of ensuring that the level of affordable housing funded and the level of funding provided by developers is not less than before. That is simply not good enough.

As we all know, there is a critical shortage of affordable social housing. The Minister acknowledged this, most recently when answering a Question in the House on 25 April concerning the National Housing Federation’s report, Overcrowding in England, published on 19 April, particularly its finding that one in six children lives in overcrowded conditions. Shelter has reported that over 1 million households are waiting for social homes, and that last year 29,000 social homes were sold or demolished and fewer than 7,000 were built. It also says that there are now 1.4 million fewer households in England in social housing than there were in 1980. These are shocking facts and statistics.

Amendment 332 provides, as noble Lords will see from the Marshalled List:

“A charging authority must prepare and publish a Strategic Housing and Market Assessment specifying what affordable housing is needed within the area of the charging authority … The charging authority must publish a new Strategic Housing and Market Assessment every three years”.


Amendment 333 provides:

“A charging authority must set rates of IL at a level which, in conjunction with the exercise of such other powers as it possesses, is likely to provide not less than the amount of affordable housing specified in its Strategic Housing and Market Assessment over a three year period”.


The Bill would then continue as it currently does, ensuring that there is no lesser level of funding than before. I have specified a period of three years but would be very happy to discuss with the Minister and others whether that would be appropriate.

It would then be necessary to amend new Section 204N, which requires the charging authority to apply the infrastructure levy in funding

“the provision, improvement, replacement, operation or maintenance of infrastructure”,

which is a term defined to include a wide variety of things, from schools and medical facilities to open spaces and the mitigation of climate change. Those are all very worthy causes, but affordable housing is only seventh out of the 10 matters in the definition of “infrastructure”. There is no provision for prioritising one type of infrastructure over another, while the greatest need is plainly for decent and affordable social housing. To have the right and ability to live in a decent home is one of the most basic human rights. Giving priority to the need for affordable housing—more particularly, affordable social housing—is the purpose of Amendment 341, which would introduce into new Section 204N a cross-reference to new Section 204G as we propose that section should be amended.

[Lord Thurlow (CB)]

My Lords, I add my voice to Amendments 332, 333 and 341 from the noble and learned Lord, Lord Etherton, concerning affordable housing, which lies at the root of the Government’s responsibility to their citizens. As we have just heard, it is the duty of government to provide safety and security to its citizens and a roof over their heads. That responsibility includes, at the very top of the list, the needs of the homeless. It is important to remind ourselves that the definition of homeless here includes many of the most vulnerable in our population. They are citizens too, but current circumstances may cause them to question that.

Successive Governments have repeatedly failed to replace council houses sold into the private sector, and this reducing inventory of low-cost housing, however defined, continues against a background of increasing homelessness and need. The Government must somehow finance more affordable housing. These amendments, taken together, will assist in that objective.

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Finally, Glover gives this amendment a strong following wind, and the Government’s own response to the Landscapes Review does so too. I hope the Government are therefore sympathetic to this amendment.

[Lord Thurlow (CB)]

I thank the noble Lord, Lord Hodgson, for letting me add my name to his Amendment 471 concerning rights of way.

I have never been able to understand why the Government wanted to apply a guillotine to registering long forgotten and rediscovered public rights of way. The noble Baroness, Lady Scott of Needham Market, made a number of interesting points but one in particular stood out for me. No one is attempting the equivalent of a land grab here; there is no rights grab going on. There are no compulsory purchase order-type approaches over land. Rights of way are simply a public asset, and that really is the focus of my short remarks this afternoon.

The Government are keen to open up the countryside to the public. The noble Earl, Lord Clancarty, just used the wonderful phrase “taking nature to your doorstep”. Farmers are finding their subsidy linked to the greater good rather than acreage. Access to the countryside is increasingly and frequently cited as a provider of mental health benefits to urban dwellers, and rights of way are one of the very few means of rural access available nationwide. Rights of way have already been levelled up.

The Government have agreed to delay the cut-off date for registering public rights of way to 2031, a token extension, but there seems to be reticence to action their promise to repeal the deadline once and for all. The Bill offers the perfect opportunity for the Government to make good their promise. I would like to know who is prevailing upon the Government behind the scenes to create this anti-social interference with the existing rights of the public, and what entitles the Government to quash the revelation of former rights of way as they are brought to light. We are not requesting new rights of way, simply confirming those which may have existed for centuries. They may have disappeared from the record, but, if verified, have always been there. Surely it is the Government’s duty to protect these public rights.

The key to rediscovering ancient rights of way lies in long-forgotten archives or seldom-accessed archives belonging to public libraries, local authorities, the Church and similar institutions, and to folklore. In addition, they may be found on the ancient maps on the walls of estate offices on large estates. These important ancient rights will inevitably be revealed slowly as the evidence is discovered. Society should rejoice as the network quietly grows, granting greater public access to green spaces. Inevitably, this process of discovery will quietly continue over many years, indeed decades, and to close an ancient right of way is to remove a precious public asset. It is ironic that the Government should be in place to protect public rights, yet willing to abandon them.

As we have heard, there are already thousands of rights of way claims awaiting processing. Some have been in the works for years, and thousands of miles of unrecorded routes need further research. Why do the Government stand in the way of this public service, rather than welcome it? Lift the cut-off date, I urge the Minister, and make good the Government’s promises by supporting the amendment.

[The Duke of Montrose (Con)]

My Lords, I offer support to my noble friend Lord Randall on protected landscapes. We need to know where we are going on this. We are trampling through the devolved competencies. Luckily, Scotland is adopting green policies with even more enthusiasm than local authorities in England, but we always need to bear in mind that the original legislation was the National Parks and Access to the Countryside Act, and originally, and even today, some see the second part as more important, as we were hearing from the noble Baroness, Lady Bennett, and the noble Earl, Lord Clancarty.

I live in a national park in Scotland, and the Scottish Government are providing millions of pounds every year to staff it and provide facilities for the public. On my land, they have just provided £800,000 to improve a footpath. When we think of the value of national parks for nature, it is worth recalling that for a body called the International Union for Conservation of Nature, our park qualified only for level V, because the only limit they had in law was to preserve the topography. We need to make up our mind what level of nature conservation we desire.

A dedicated percentage of land for conservation and marine conservation areas was announced recently, and the Scottish Government have taken it up and announced a timetable for extension of their marine protected areas. This has brought a sense of desperation, particularly to the crofting counties on the west coast, because they see it as a hammer-blow to the crofting way of life, which requires buying livestock, cutting peat, fishing, weaving and crafts. This is a whole culture which could be lost. There are areas where we want to preserve the way of life, as well as nature. I hope that my noble friend Lord Randall’s efforts will point the way.

Levelling-up and Regeneration Bill

Lord Thurlow Excerpts

Committee stage
Monday 22nd May 2023 Lords Chamber

[Lord Etherton (CB)]

My Lords, I draw attention to my amendment, co-signed by the noble Lord, Lord Thurlow—and I am very grateful to him for doing so. The amendment is to Clause 178(4).

Clause 178 is dealing with the vacancy condition, which is one of the conditions for permitting letting or rental auctions by local authorities. My question is probing, to do with certainty. Clause 178 (4) mentions

“Occupation by … a trespasser, or … a person living in premises that are not designed or adapted for residential use”,


but goes on to say that

“this is not to count for the purposes of this section”.

Since the section deals with both what is occupied and what is not to count as occupation, it is unclear what that means. I ask the Minister to make it clear.

I think the intention must be that where a trespasser is in occupation or there is

“a person living in premises that are not designed or adapted for residential use”,

the premises are not to be treated as unoccupied for the purposes of Clause 178(1). That is my understanding. If that is incorrect and it is intended that they should be treated as unoccupied, the amendment provides that if a landlord has taken possession proceedings, they are not to be treated as unoccupied. It is really a question of clarity as to what Clause 178(4) is meant to do here. If the Minister can give a clear explanation from the Dispatch Box, that would help me and may be the end of the matter.

[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 ---

I conclude, as have the previous two speakers, that Clause 213 is unnecessary, undesirable, inappropriate and capable of generating more damage than it procures benefit. It is discriminatory in that it singles out the RICS for special treatment in circumstances where nearly every one of its areas of activity has at least one other participant body or organisation over which the RICS has no member regulatory function. Whether this makes it a hybrid Bill is something I have pondered; but I am not expert on this, and it is difficult for me to pronounce on such a matter. Like this Parliament, much is held together by conventions, mutual trust, and the wish to share information and to transact other than through letters of the law. The RICS certainly needs to consolidate its reputation. It has been through a period of turmoil—let us make no mistake about that; that is a matter of common knowledge—but it is on the road to putting things in order, and, with the aid of my noble friend Lord Bichard, I have every confidence that it will achieve that. However, Clause 213 is capable of much wider mischief, which will not, ultimately, be in the power of the Secretary of State to put right, if, as I suspect, it goes wrong. So I support the noble Baroness, Lady Hayter, that the clause has no beneficial purpose in the Bill and should be removed.

[Lord Thurlow (CB)]

My Lords, I declare my interest as a former chartered surveyor—I was one for some 35 years; I resigned when I left private practice—and my comments now, which will be brief, are entirely my own.

Why do the Government want to interfere with an independent professional body? I do not believe that architects, civil engineers, solicitors, doctors, nurses or any of the other many noble professions have this sword of Damocles hanging above their professional organisations as is proposed here. The noble Baroness, Lady Hayter, and my noble friend Lord Lytton have mentioned the worldwide influence of the RICS. I was slightly involved with it many years ago; it is extensive and has done ground-breaking work across the world in bringing together the numerous different property-related organisations in the advisory field to try to create common standards internationally. This is the stuff of soft power; it has a royal warrant.

I accept that the RICS has had its own internal issues—pretty serious ones—but it instigated robust, independent reviews and accepted all recommendations. Why does His Majesty’s Government want this power? It is inappropriate. As we have heard, the Bill has all the characteristics of a hybrid Bill anyway, so what on earth is this clause doing in the Levelling-up and Regeneration Bill?

[Baroness Hayman of Ullock (Lab)]

My Lords, I start by thanking my noble friend Lady Hayter for her very detailed and clear explanation of the concerns felt by a number of noble Lords about why this clause is in the Bill at all. I thank the noble Earls, Lord Caithness and Lord Lytton, for their very detailed knowledge and perspective from their professional point of view; that was extremely helpful and I think this is a very important debate.

I added my name to the clause stand part notice because we are also extremely concerned by the wording of Clause 213 as currently drafted. As we have heard, it provides a power for the Secretary of State to instigate a review of RICS at any time and with very few limits in terms of scope, rationale or process. At the same time, it fails to set out any related statutory protections for RICS or for the chartered surveying profession more broadly. Our concerns stem from the fact that this seems a very significant step for a Government to take—to actually create powers to instigate reviews of an independent, member-funded institution, which does not itself, as we heard, exercise any statutory powers. Noble Lords have said they are concerned that this could risk creating a perception of RICS’s inability to act independently and in the public interest. As the noble Earl, Lord Lytton, said, it has nothing to do with either levelling up or regeneration and could set a highly unusual precedent for any other royal chartered body in the future.

We have heard about the independent review by the noble Lord, Lord Bichard, and the previous review mentioned by my noble friend. She went into the detail of what the independent reviews have said. Also, recommendation 14 of the report by the noble Lord, Lord Bichard, required an independent review of RICS to take place every five years. My noble friend said that it has agreed to do that even more frequently, every three years, so I do not really understand what the Government’s concerns are. It strikes me that, despite the concerns the noble Earl, Lord Lytton, laid out about recent issues within RICS, it has taken concerns raised extremely seriously, has accepted the recommendations in this report and is amending the RICS charter and by-laws to reflect the recommendations in full, subject to the approval of the Privy Council.

So my first question to the Minister is: why do the Government feel the need to interfere in this process? RICS itself, having accepted the recommendations in the review, is looking to ensure that it is held accountable in a transparent, orderly and appropriate manner, so I genuinely do not understand why the Government feel they need to legislate, as other noble Lords have said. It would be extremely helpful if the Minister could properly explain.

I also found it very concerning to hear from my noble friend Lady Hayter that there do not seem to have been any recent meetings between RICS and the Government. Can the Minister confirm that and explain what meetings have been held to discuss this and when? It does seem quite an extraordinary step. We support either the removal or the amendment of this clause so that it aligns with the wording of recommendation 14 of the review of the noble Lord, Lord Bichard, if it is going to stay in here. Surely the regulation of professions should be overseen by independent governance and decision-making that uphold the public interest and also guard against any risk of improper interference. Can the Minister explain why this clause is in the Bill? Will he also comment on the suggestion of hybridity, because this is extremely concerning?

Levelling-up and Regeneration Bill

Lord Thurlow Excerpts

Report stage
Wednesday 13th September 2023 Lords Chamber

[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.

[Lord Thurlow (CB)]

My Lords, I declare my interests as a former chartered surveyor. The current CPO guidance attempts to deal fairly with owners who are caught up in the process of having land acquired under compulsory purchase, but it remains a blunt instrument. This amendment requires the Government to provide a duty of care, which is an excellent proposal. It is also appropriate, as we heard from the noble Earl, Lord Lytton, that compensation under CPO is paid on transfer, as it is when any citizen in this country buys or sells any of their private property. I see no reason at all why it should not also be the case under compulsory purchase. I support the amendment.

[Baroness Taylor of Stevenage (Lab)]

My Lords, the powers introduced by this section amend and clarify powers and procedures for using compulsory purchase and have been extensively consulted on—unlike some other parts of the Bill. The LGA’s view is that the introduction of measures that would genuinely make the CPO process more efficient for councils is an encouraging step, as it has previously lobbied on the need to reduce the time taken to use the CPO, and it also believes that these changes will make the valuation of change in this context closer to a normal market transaction.

In fact, the LGA view is that the Bill could have gone further. It would also like to see the ability to tackle sites which have had planning permission for a long time but which have not been built out through stronger compulsory purchase powers, and the removal of the requirement for permission from the Secretary of State to proceed with a CPO, which would expedite the process for local authorities. Of course, the Secretary of State could always retain the right to call in in circumstances where it would be necessary to do so.

I listened carefully to the noble Lord, Lord Carrington, and the noble Earl, Lord Lytton, and I am sympathetic to the specific issues they raised, particularly the issue about prompt payment for purchases of land. Perhaps I have had an unusual experience of the CPO process but the conditions are already stringent, both in setting out the process for a site qualifying for a CPO and in the requirement for valuation of that site. Therefore, while I appreciate the thinking behind the amendment, it seems that there is already guidance in place—indeed, the amendment refers to it. I look forward to the Minister’s response.