Marcus Jones
Main Page: Marcus Jones (Conservative - Nuneaton)Housing and Planning Bill (Fifteenth sitting)
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The Parliamentary Under-Secretary of State for Communities and Local Government (Mr Marcus Jones)
I beg to move amendment 246, in clause 11, page 52, line 32, after “survey” insert “or value”.
This amendment ensures that the right of entry in clause 111 may be exercised to value land as well as to survey it.
Mr Jones
It is a pleasure to serve again under your chairmanship, Mr Gray. Before I get into the detail of the amendments, it may be helpful if I provide a little background on the measure to which they relate: the right to enter and survey land. Any acquiring authority may need to enter land to survey it before deciding whether to proceed with a compulsory purchase order. For example, an acquiring authority may need to find out whether there are any underground structures or contamination that may hamper a proposed scheme. Currently, most, but not all, acquiring authorities have that power of entry, but there is no logical reason for that difference in powers.
Mr Thomas
I am minded to support the Government amendments, particularly as it is the hon. Gentleman moving them rather than the Minister for Housing and Planning, but will he set out why he thinks they are needed? Compulsory purchase powers have existed for a long time, and I am not aware of a huge problem in terms of access in order to survey land. Why is it a problem now?
Mr Jones
I do not know what my hon. Friend the Minister for Housing and Planning has done to upset the hon. Gentleman. The reason we are introducing the provisions is to put all authorities on a level playing field when undertaking or exercising the right to compulsory purchase. At the moment, the rights that we are discussing can be exercised by local authorities, the Homes and Communities Agency and urban development corporations, but there are organisations, such as NHS trusts and Natural England, and certain Ministers within the Government, who do not have the same powers, so we have sought to extend them to ensure that the situation is consistent.
Peter Dowd
At the moment, to the best of my knowledge, those authorities tend to be, as the Minister has identified, effectively public authorities, such as Ministers, the NHS and so on. Can we have clarity as to whether the powers will extend that authority status to private authorities?
Mr Jones
There are circumstances in which that could be the case, but it would generally be where a local authority or another public body exercises its compulsory purchase powers before using a private organisation, for example, as a delivery vehicle for the proposed scheme. A town centre scheme is probably a good example. On that basis, I believe that I have answered the Opposition’s questions so far, and I commend the amendment to the Committee.
Amendment 246 agreed to.
Amendments made: 247, in clause 111, page 52, line 32, leave out “compulsorily”.
This amendment ensures that the right of entry in clause 111 may be exercised prior to acquiring land by agreement as well as compulsorily.
Amendment 248, in clause 111, page 52, line 35, after “survey” insert “or value”.—(Mr Marcus Jones.)
See Member’s explanatory statement for amendment 246.
Dr Blackman-Woods
I beg to move amendment 281, in clause 111, page 52, line 37, at end insert—
“(c) may do so when an existing planning permission has expired”.
This amendment would ensure that compulsory purchase order powers exist where planning permission has expired.
Mr Thomas
That is generous of my hon. Friend. It is a particular concern of my constituents, given the huge cuts to Transport for London grant, which might mean that access programmes that exist for other stations are cut, putting even further away the prospect of better access at Harrow-on-the-Hill station. If there were a way to secure some planning gain from the development at the Harrow post office site that might be invested in better access and it might be another route to achieving the objective that my constituents have had for a long time now, under both Mayors of London, which is to make Harrow-on-the-Hill a fully accessible station. I hope that the Minister will be particularly attracted to amendment 282. In that spirit, I support my hon. Friend’s amendment.
Mr Jones
In replying to the hon. Member for City of Durham and Opposition Members, it may be helpful if I start by clarifying the purpose of clause 111. It does not confer any compulsory purchase powers on acquiring authorities; it merely allows acquiring authorities to enter land for survey or valuation purposes in connection with a proposal to acquire land. The intention behind the hon. Lady’s amendments therefore could not be delivered through the clause. In any case, the amendments are unnecessary. Local authorities already have the powers to acquire land by compulsion in the circumstances that the hon. Lady mentioned, provided there is a compelling case in the public interest and they have a deliverable scheme.
Also, to set the record straight, there are not currently 600,000 long-term empty properties. If the hon. Lady checks back and looks at the figures, 600,000 was the number of long-term empty properties under the last Labour Government. Under the guidance of my party in coalition and now in Government on our own, we have the lowest level of long-term vacant properties on record: 206,000. There is still significantly more to do, but we have put significant provisions in place to reduce the number of vacant properties, and the figures show that those provisions are working.
Dr Blackman-Woods
The figures—I did not actually say that they related to long-term vacant properties; I simply said they were empty—came from the Minister’s own Department in October 2014. The figures given by the Department state that there are 610,123 vacant homes. I am clear that that is the figure I was given.
Mr Jones
I hear what the hon. Lady says, but I think she is putting up a false argument, because homes that are vacant in the short term are often let. That is obvious on the basis that the number of long-term vacant homes is a significantly lower number than the number of short-term vacant properties.
On the LGA, I can reassure the hon. Lady that Ministers meet it to discuss such matters regularly. On empty dwellings, local authorities can apply for empty dwelling management orders under the powers of the Housing Act 2004. That would be a far better vehicle than the amendment that she has tabled. In relation to the concerns raised by the hon. Member for Bootle about the process and clarity, in October we published updated guidance on the compulsory purchase process in a new format that has new user-friendly language to try and help people understand a very complex area of law.
Given the assurances that I have given to the hon. Lady, and on the basis that the intention of her amendment would not be achieved through the amendment, perhaps she will consider withdrawing it.
Dr Blackman-Woods
I know that under clause 111 as drafted it would not be possible for acquiring authorities to have access to compulsory purchase orders, but that was why we tabled the amendment. If the amendment were agreed to, the clause would allow that, and that would speed up the process of dealing with empty properties. I just say to the Minister that if the system and the Bill were okay, and if local authorities were to be enabled to do all that they want to bring forward development in their area, with sufficient land available for that, and to tackle the scourge of empty properties, they would not have asked us all to think about amending the Bill. Will he have another look at the issue? Local authorities are saying, “We cannot do what we want to do for our areas through the Bill as it stands.” I ask, in as nice a way as possible, that he thinks about the matter again, and especially what can be done to bring empty properties back into use as quickly as possible. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 111, as amended, ordered to stand part of the Bill.
Clause 112
Warrant authorising use of force to enter and survey land
Amendments made: 249, in clause 112, page 53, line 18, after “surveying” insert “or valuing”.
See Member’s explanatory statement for amendment 246.
Amendment 250, in clause 112, page 53, line 20, after “survey” insert “or valuation”.—(Mr Marcus Jones.)
See Member’s explanatory statement for amendment 246.
Question proposed, That the clause, as amended, stand part of the Bill.
Mr Jones
We would expect most acquiring authorities exercising their compulsory purchase rights to reach agreement with owners and occupiers about entry to their land. Warrants are only for those cases when entry is refused or is likely to be refused. It is impossible to predict how many warrants will be sought, as that will depend on the number of compulsory purchase proposals that come forward, the number of affected owners and occupiers, and their reaction to each particular proposal. Just to give the hon. Gentleman some reassurance, however, clause 112 makes it absolutely clear that while the warrant authorises the use of force, a justice of the peace, when deciding whether to issue a warrant, must be satisfied that the use of force is reasonable in the particular case, and the force that may be authorised is limited to what is reasonably necessary. In addition, all evidence in proceedings must be given under oath and the warrant must specify the number of times that entry will be allowed.
Mr Thomas
The Minister has helpfully detailed the context in which a warrant might be issued and specified that he expects that the vast majority of efforts to enter and survey land will not require a warrant in the first place. However, to come back to the nub of my earlier comments, why is the power necessary? Have the Minister’s civil servants had to field a series of requests from local authorities or developers for these powers?
Mr Jones
I have set out that the warrants will be used only when the landowner has an adverse reaction to a request to enter and survey or value land. It is clear that many acquiring authorities and landowners will come to arrangements themselves, but the case the hon. Gentleman mentioned of his own railway station is a prime example of when a scheme was being put forward but the landowner completely refused to allow the acquiring authority the right to come on to the land to survey and value it. I expect that he would want some sort of mechanism whereby that acquiring authority would be able to enter the land.
Mr Thomas
Does the Minister have fracking in mind? He shakes his head and looks pained—I recognise that that is a sensitive subject for Conservative Members—but does he envisage a warrant requiring the use of force being needed if protesters had barricaded themselves in, or if the person who owned the land did not want someone who had been given fracking consent to survey what may or may not be underneath the ground?
Mr Jones
The hon. Gentleman has come up with many conspiracy theories during our scrutiny of the Bill and I suspect that this may well be another one. I have set out the reasoning behind clause 112 in detail and hope that hon. Members will agree to it.
Question put and agreed to.
Clause 112, as amended, accordingly ordered to stand part of the Bill.
Clause 113 ordered to stand part of the Bill.
Clause 114
Enhanced authorisation procedures etc. for certain surveys
Amendments made: 251, in clause 114, page 54, line 11, after “surveys” insert “or values”.
See Member’s explanatory statement for amendment 246.
Amendment 252, in clause 114, page 54, line 15, after “survey” insert “or valuation”.
See Member’s explanatory statement for amendment 246.
Amendment 253, in clause 114, page 54, line 17, after “survey” insert “or valuation”.
See Member’s explanatory statement for amendment 246.
Amendment 254, in clause 114, page 54, line 32, after “survey” insert “or valuation”.
See Member’s explanatory statement for amendment 246.
Amendment 255, in clause 114, page 54, line 33, after “survey” insert “or valuation”.
See Member’s explanatory statement for amendment 246.
Amendment 256, in clause 114, page 54, line 40, after “survey” insert “or valuation”.—(Mr Marcus Jones.)
See Member’s explanatory statement for amendment 246.
Mr Jones
I beg to move amendment 257, in clause 114, page 54, line 40, at end insert—
“(5) See section 169(4) of the Water Industry Act 1991 and section 171(4) of the Water Resources Act 1991 for additional procedures in relation to the exercise of the power in section 111 on behalf of a water undertaker, the Environment Agency or the Natural Resources Body for Wales.”
See Member’s explanatory statement for NC18.
The Chair
With this it will be convenient to discuss the following:
Government new clause 18—Amendments to do with section 111 to 117.
Government new schedule 3—Right to enter and survey land: consequential amendments.
Mr Jones
Amendment 257, new clause 18 and new schedule 3 clarify how the new right of entry will interact with a number of existing powers of entry. As I have explained, the intention is that all acquiring authorities should, when possible, use the new general power of entry, so when the new general power covers all the purposes of an existing power of entry, that existing power will be repealed in its entirety. If the scope of the existing power is wider than that of the new general power, we will amend the existing power so that it no longer applies to the specific purposes for which the general power can be used.
Amendment 257 signposts additional procedures that relevant acquiring authorities must follow when exercising the right of entry under clause 111. Those additional procedures, as set out in the Water Industry Act 1991 and the Water Resources Act 1991, require water undertakers, the Environment Agency and the Natural Resources Wales to seek the Secretary of State’s written authorisation before exercising the right to enter in certain circumstances. The amendment simply replicates an important safeguard in the existing power of entry.
New clause 18 introduces new schedule 3, which sets out the changes to each of the existing powers of entry. I will highlight one particular point. The existing powers of entry repealed by paragraphs 8, 9, 19, 20 and 27 of new schedule 3 allow entry in connection with any claim for compensation in respect of an acquisition. The new general power of entry in clause 111 does not cover that purpose. However, as such claims arise after a compulsory purchase order has been confirmed, paragraph 6 of new schedule 3 clarifies that acquiring authorities will be able to rely on the power of entry under section 11(3) of the Compulsory Purchase Act 1965 for that purpose.
Amendment 257 agreed to.
The Chair
Before we move on, I would like to comment on a small matter of protocol. On several occasions today, members of staff have come into the Strangers Gallery and handed documents and other things to members of the Committee. That is not in order—you may not do that. If you want to get something from members of staff, go outside into the corridor and do it there, if that is agreeable.
Clause 114, as amended, ordered to stand part of the Bill.
Clause 115 and 116 ordered to stand part of the Bill.
Clause 117
Right to enter and survey Crown land
Question proposed, That the clause stand part of the Bill.
Mr Thomas
In the spirit of my contribution on clause 112, I want to ask some questions about clause 117. Why do we require a clause on the right to enter and survey Crown land? I struggle to understand why a warrant authorising the use of force might be necessary to enter and survey Crown land, so I would welcome the Minister’s setting out an example of why that might be necessary.
I also struggle to understand why somebody who is, presumably, employed by the Queen might be at risk of committing an offence under clause 116 in relation to entering and surveying Crown land. Why on earth do we need to include Crown land under the Bill? One assumes that, as a general rule, Her Majesty and those who exercise control of her lands would work with Government Departments and developers to allow them to enter and survey land. Even if those employed by Her Majesty did not co-operate, I struggle to understand why we would want to take action against staff employed to look after Crown land, or why the Minister thinks that a warrant authorising the use of force is necessary. Will the Minister set out in particular whether this measure covers Crown Estate land? Has he had any consultations with the Crown Estate itself about how clauses 111 to 116 apply to Crown Estate land under the terms of clause 117?
Mr Jones
I will respond quickly to the hon. Gentleman’s questions. Clause 117 explains that the new power of entry will be available in relation to Crown land—any land in which there is a Crown or a duchy interest, for example—but the permission of the appropriate Crown authority must be obtained first. That ensures that there is appropriate protection for Crown land. The measure is based on existing precedent. For instance, the power of entry set out in sections 53 and 54 of the Planning Act 2008 involves a similar provision in respect of Crown land.
Question put and agreed to.
Clause 117 accordingly ordered to stand part of the Bill.
Clause 118 ordered to stand part of the Bill.
Clause 119
Confirmation by inspector
Mr Jones
I beg to move amendment 258, in clause 119, page 57, line 1, leave out from beginning to “is” in line 2 and insert—
“Where an inspector decides whether or not to confirm the whole or part of a compulsory purchase order, the inspector’s decision”.
This amendment would mean that an inspector’s decision whether or not to confirm the whole or part of a compulsory purchase order would be treated as a decision of the confirming authority. The current wording would mean that only a decision to confirm a compulsory purchase order would be treated as the authority’s decision.
Before I explain the amendment, it might be helpful if I provide a little background about the provision to which it relates—clause 119, on confirmation by an inspector. The purpose of the clause is to allow each Secretary of State with powers to confirm a compulsory purchase order to appoint an inspector to make the decision directly in suitable cases. That would speed up the decision-making process by removing the two-stage handling of the confirmation of an order, which is where an inspector makes a recommendation to the Secretary of State, who makes the decision.
An inspector may be appointed to act in relation to a specific order or a description of compulsory purchase orders. The Government intend to publish a policy on which orders are suitable for confirmation by an inspector after further engagement with stakeholders. The provision is, however, likely to be useful in cases that do not raise issues of more than local importance. In such cases, the Secretary of State often fully agrees with the inspector’s reasoning and decides the order in accordance with the inspector’s recommendation. Removing this double handling could shorten the process by up to 12 weeks.
Dr Blackman-Woods
That is very helpful. Thank you very much indeed, Mr Gray.
Amendment 280 aims further to include the local authority in planning decisions and asks for local authorities to be engaged with the compulsory purchase order decisions. It would add a useful element to the Bill for two main reasons.
First, it would ensure that local authorities have a strong and active role in the CPO decision. As we have highlighted throughout the Committee process, and it has been backed up time and again by those giving evidence, local authorities often have a much better knowledge of and insight into the needs and realities of a local area than central Government or, in this particular instance, a planning inspector.
That is obviously also true when it comes to planning decisions and putting local people at the heart of the planning process. It is important that local councillors in particular are involved in compulsory purchase. They are often in a very good position to bring about a collaborative approach, rather than one that is simply top-down, and can play a pivotal role in explaining to a local community and to the owners of the land why compulsory purchase is a sensible decision. We feel that this role for local authorities and their councillors in mediating some of the disputes that can arise from CPO decisions has been overlooked, or perhaps it has not been exploited enough by Government and those seeking to bring about compulsory purchase. It could also be an important element in speeding the process up, because that mediation that can be brought about locally could help to highlight some of the difficulties that exist.
Again, this amendment has come forward very strongly from the LGA, which says that it wants to be actively engaged in the process; it thinks that it could have a positive impact on decisions. The LGA has said that the consultation that the Government carried out before introducing the Bill proposed enabling powers to allow the Secretary of State to delegate decisions for confirmation to an inspector in certain instances, which is exactly what we are discussing in relation to clause 119.
Although that is a step in the right direction and should speed up decision making to a degree, we think that the Government should be even more ambitious. That is why we think that the requirement for permission from the Secretary of State to proceed with a compulsory purchase order should be removed, or at least that consideration should be given to removing it in certain circumstances, particularly where safeguards are in place and it is clearly set out in legislation that local authorities could be given that decision. It would be interesting to hear from the Minister when he responds to these points why he thinks that we should not do more to strengthen the role that local authorities could play in bringing about CPOs swiftly and ensuring that all parties are on board with the decision.
I have a few wider comments, which I will keep extremely brief. Again, the LGA, on the back of this clause and other related clauses, has said that it thinks that there could be a
“more fundamental consolidation and streamlining of the legislative provisions for compulsory purchase”.
In particular, it points out:
“A number of different Acts and statutory instruments introduced over more than 150 years pertaining to compulsory purchase have resulted in antiquated legal terminology, inconsistences and uncertainties, all of which add to the costs of the CPO process and the scope for dispute.”
That is an extremely interesting point. Although the clause contains some of the streamlining that we all want to speed up the CPO process and make it easier to understand and more transparent, we are probably seeing the need for consolidating legislation that would make it easier for everyone.
The LGA makes another important point:
“Land valuation should be considered by the tribunal up front, in cases where a compulsory purchase order is in contest, not at the end of the process, creating greater certainty”
for all parties. I would be grateful, when the Minister is responding to both the amendment and clause stand part, if he said more about what we can do to help local authorities. I point out to him that we have an incredibly complicated 10-stage process in place at the moment. Anything that we can do to streamline it would be helpful. It is clear from the many representations made to the Committee that giving local authorities a greater role would help streamline the process hugely. More than that, it would show that the Government have faith in local authorities to do the best for their area. We understand fully the need for safeguards in certain circumstances, but we would like the Government to extend localism to having some faith that local authorities know what is best for their communities, and allowing them a direct role in the compulsory purchase process.
Mr Jones
I thank the hon. Lady for her explanation of amendment 280 relating to clause 119(3), which substitutes for section 2(2) of the Acquisition of Land Act 1981 a new section 2(2) requiring a compulsory purchase order to be made by the acquiring authority and submitted to the confirming authority—the Secretary of State—for confirmation in accordance with part 2 of the 1981 Act. Amendment 280 would require the order to be submitted to the acquiring authority also. The amendment is unnecessary and inappropriate because the compulsory purchase order will have been made by the acquiring authority and submitted to the confirming authority. There is therefore no need or purpose for the order to be submitted back to the acquiring authority.
Section 2(2) of the 1981 Act is about the submission phase, not the decision phase. Part 2 of the 1981 Act concerns the decision phase. The compulsory purchase decision phase must comply with article 6 of the European convention on human rights, which means that the decision on an order needs to be made by an independent and impartial tribunal. The current process, whereby the confirming authority makes its decision, after the affected parties have had the opportunity to make objections and have them heard by an inspector, ensures a fair and impartial process that is article 6 compliant. I hope, therefore, that the hon. Lady will consider her proposal unnecessary and inappropriate. I invite her to withdraw the amendment.
Dr Blackman-Woods
The LGA and the councils clearly feel strongly about the issue because they are asking for changes to be made. I hear what the Minister says about ensuring a degree of independent adjudication, and it would help if he could indicate whether he will keep talking to the LGA about how its concerns might be better addressed in the current system. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 119, as amended, ordered to stand part of the Bill.
Clause 120
Time limits for notice to treat or general vesting declaration
Mr Jones
I beg to move amendment 259, in clause 120, page 57, line 36, leave out “made” and insert “executed”.
This amendment, together with amendments 260, 261, 272, 273, 274, 275, 276 and 277, amends references to a general vesting declaration so that they are consistent with the terminology of section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 (although “make” and “execute” mean the same thing).
The Chair
With this it will be convenient to discuss Government amendments 260, 261 and 272 to 277.
Mr Jones
This series of amendments, starting in clause 120, all do the same thing. They change the terminology from “made” to “executed” in reference to a general vesting declaration. Although such a declaration is “made” when it has been “executed”, and hence the words mean the same, section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 uses “executed” and we think, therefore, that it will help all parties involved in compulsory purchase if we are consistent throughout.
Amendment 259 agreed to.
Clause 120, as amended, ordered to stand part of the Bill.
Clause 121 ordered to stand part of the Bill.
Schedule 7
Notice of general vesting declaration procedure
Amendments made: 273, in schedule 7, page 91, line 26, leave out “made” and insert “executed”.
See Member’s statement for amendment 259.
Amendment 272, in schedule 7, page 91, line 12, leave out “made” and insert “executed”. —(Mr Marcus Jones.)
See Member’s statement for amendment 259.
Schedule 7, as amended, agreed to.
Clauses 122 to 127 ordered to stand part of the Bill.
Schedule 8 agreed to.
Clauses 128 to 130 ordered to stand part of the Bill.
Clause 131
Power to make and timing of advance payment
Amendments made: 260, in clause 131, page 63, line 4, leave out “made a” and insert “executed a general”.
See Member’s statement for amendment 259.
Amendment 261, in clause 131, page 63, line 21, leave out “make a” and insert “execute a general”. —(Mr Marcus Jones.)
See Member’s statement for amendment 259.
Clause 131, as amended, ordered to stand part of the Bill.
Clauses 132 and 133 ordered to stand part of the Bill.
Clause 134
Objection to division of land
Dr Blackman-Woods
The clause relates to objections relating to the division of land, and I have a question for the Minister. If an objection to the taking of only part of the land is served by a landowner, the project for which powers of compulsory purchase have been granted is likely to come to a halt until the landowner’s desire to have the entirety of the interest acquired has been resolved either by agreement or by the Lands Chamber. This can create a situation in which the landowner can hold the intended project to ransom on account of the likely delay to the project, given the delay in resolving the issue in the Lands Chamber, which can often amount to a year or a number of years if the issue is particularly complex. Does the Minister think the measures in the clause will help in that situation? Will they help to provide a remedy that speeds up resolution of problems that emerge when there is a division of land or land is split in some way? If the Minister thinks that it does, will he explain to the Committee how?
Mr Jones
It will probably help if I explain clause 134, which introduces schedules 9 and 10, which contain a dispute resolution procedure where material detriment has been alleged. This may arise when only a part of a claimant’s land is required by the acquiring authority. Schedule 9 applies when a notice to treat has been served and schedule 10 applies following the execution of a general vesting declaration. It may help the Committee if I briefly outline the concept of material detriment.
Some projects, such as roads, may require only part of someone’s land, and that will be the land included in the compulsory purchase order. The taking of land and the nature of the project will have differing effects depending on the nature of the remaining land. Material detriment arises where the claimant’s retained land would be less useful or less valuable to a significant degree. If the claimant thinks that taking part of the land will cause material detriment to a house, building or factory, including part of a garden or park belonging to the house, he or she can serve a counter-notice, which can then be referred to the upper tribunal for determination.
The procedure for claiming material detriment differs depending on whether an acquiring authority serves a notice to treat or executes a general vesting declaration. The intention in the Bill is to harmonise the two procedures as far as possible. That goes some way to simplifying the process by giving both parties a greater understanding of the process, and giving a better steer to the courts in relation to making sure that the procedure is harmonised for when both systems are used.
Paragraph 3 of schedule 9 inserts new schedule 2A into the Compulsory Purchase Act 1965. This sets out the procedure for serving a counter-notice requiring the purchase of land, not the notice to treat, and its subsequent determination. Among the procedural details are three important points. First, the acquiring authority is permitted to enter the land that it wants and to get on with its scheme where the counter-notice has been referred to the tribunal. That is set out in paragraph 11 of new schedule 2A, referred to in paragraph 5(b). Secondly, if the acquiring authority does that, there is no going back, as it will be compelled to take the remainder of the land if the tribunal finds in favour of the claimant. That is the effect of paragraph 21(1)(c) of the new schedule 2A, which allows the acquiring authority to withdraw its notice to treat only if it has not yet entered on and taken possession of the land. Thirdly, if the tribunal requires all or some more of the remaining land to be taken, the claimant will be compensated for any losses caused by the temporary severance of the land where the authority has already entered part of it. For example, if part of a claimant’s business premises is taken, he or she may incur trading losses over and above those that would have occurred had the land been taken in the first instance. That is provided for in paragraph 26(5) of new schedule 2A.
Among the consequential amendments in part 2 of schedule 9 is a new feature of the material detriment regime. Paragraph 9 inserts a new section 2A into the Acquisition of Land Act 1981 that allows acquiring authorities to disapply the material detriment provisions for land that is 9 metres or more below the surface. That provision will prevent spurious claims for material detriment from owners of land above tunnels where the works will have no discernible effect on the land. Provisions of that nature are common in hybrid Acts, such as the Crossrail Act 2008.
Schedule 10 provides a similar counter-notice procedure where material detriment is claimed following the execution of a general vesting declaration under the Compulsory Purchase (Vesting Declarations) Act 1981. I commend clause 134 to the Committee.
Question put and agreed to.
Clause 134 accordingly ordered to stand part of the Bill.
Schedule 9
Objection to division of land following notice to treat
Amendments made: 274, in schedule 9, page 94, line 5, leave out “made” and insert “executed”.
See Member’s statement for amendment 259.
Amendment 275, in schedule 9, page 95, line 36, leave out “made” and insert “executed”.—(Mr Marcus Jones.)
See Member’s statement for amendment 259.
Schedule 9, as amended, agreed to.
Schedule 10
Objection to division of land following vesting declaration
Amendments made: 276, in schedule 10, page 103, line 9, leave out “made” and insert “executed”.
See Member’s statement for amendment 259.
Amendment 277, in schedule 10, page 103, line 22, leave out “made” and insert “executed”.—(Mr Marcus Jones.)
See Member’s statement for amendment 259.
Schedule 10, as amended, agreed to.
Clauses 135 and 136 ordered to stand part of the Bill.
Clause 137
Power to override easements and other rights
Mr Jones
I beg to move amendment 262, in clause 137, page 66, line 39, after “authority” insert “, or
(ii) been appropriated by a local authority for planning purposes as defined by section 246(1) of the Town and Country Planning Act 1990”.
This amendment, together with amendment 264, would mean that the power to override easements and other rights in clause 137 applied to land which a local authority already held prior to the coming into force of clause 137 but only appropriated for planning purposes after the coming into force of that clause.
Mr Jones
This group of amendments contains mainly transitional provisions and drafting improvements. With your permission, Mr Gray, before I explain what they all do I will set out the purpose of clauses 137 to 139 to put them into context.
Regeneration and redevelopment projects will, almost by definition, take place on previously developed land. To ensure that there are no impediments to the proposed regeneration, it may be necessary to deal with restrictive covenants and easements that affect the land acquired. The Law Commission has found that there are easements over at least 65% of registered freehold titles. Those third-party interests are typically rights to allow the underground services—for example, water, gas, electricity and telecommunications—of one property to pass beneath the land of neighbouring properties. There are also rights of light, rights of way and covenants restricting development to certain uses or density.
The statutory power to override such easements and covenants for both the construction and use of development is currently restricted to local planning authorities and regeneration agencies such as the Homes and Communities Agency and urban development corporations. New town development corporations and housing action trusts also have that power, but there are none in existence at present. One important aspect of the power is that it devolves to subsequent purchasers of the land without the local authority or agency having to do the development itself. It is therefore an important feature of town centre redevelopment schemes where local planning authorities acquire land and sell it on to their developer partner.
Not all development schemes are undertaken on land held for planning purposes or acquired by regeneration agencies. The Government have therefore decided to extend the power to override the easements and other rights to all bodies with compulsory purchase powers. Clause 137 contains that power, which will be available in respect of land acquired by or vested in a specified authority, as defined by subsection (7), when the provision comes into force.
It may help the Committee if I describe the amendments in sub-groups. Amendments 262 and 264 are transitional provisions to enable local planning authorities to do in the future what they can do now. At the moment, land not held for planning purposes may be appropriated for planning purposes to benefit from the power to override easements in section 237 of the Town and Country Planning Act 1990. Clause 137(2)(b) does not provide for appropriation of land, so without the amendments, land already held for other purposes could never benefit from clause 137, even though land newly acquired for the same purpose after commencement could do so. That is clearly not a desired outcome, so amendments 262 and 264 take us to the right place.
Amendments 263, 266 and 269 are the main transitional provisions. Amendments 263 and 266 extend the provisions to other qualifying land, which is defined in amendment 269 as land that is or has been owned by those bodies that already have the power to override easements and other rights. The effect is that those bodies will be able to exercise the new power in clause 137 on that land instead of their existing powers, which will be removed by schedule 11 to the Bill.
Amendment 265 is a substantive amendment. Clause 137(4)(c) states that the power to override easements and so on applies to the use of land where the authority could have purchased the land compulsorily to construct or erect any building for that use. That is too limiting, as some uses do not require a building to be constructed, such as a carpark or landscaping. Amendment 265 therefore extends that provision so that it refers to the carrying out of any works for the use in question.
Amendments 267 and 271 are consequential to the motion to split clause 137 into two clauses. Clause 137 will be unwieldy once the definitions in subsection (7) have been extended by the definition of “other qualifying land” in amendment 269. The motion will therefore split clause 137, with its substantive provisions in subsections (1) to (6) and the new clause containing the definitions in subsections (7) and (8).
Amendments 268 and 270 regularise the definition of local authority in the provisions. Amendments 262, 264 and 269 introduce references to a local authority’s planning purposes. The list of authorities that are local authorities for those purposes is not the same as the general definition of “local authority” in subsection (7). In the future, we only need a general definition in the context of a specified authority, also defined in subsection (7). Amendment 268 therefore removes the now superfluous general definition of “local authority” and amendment 270 places the definition within that of a specified authority.
Dr Blackman-Woods
I thank the Minister for carefully taking us through the amendments and for answering one of my questions already, but there are a couple of others which I will deal with quickly.
It does make a lot of sense to split the clause in the way the Government suggest. The clause gives acquiring authorities a power to override rights in land following compulsory purchase, similar to provisions in section 237 of the Town and Country Planning Act 1990, which allows planning authorities to override easements and other rights in land following compulsory purchase or in seeking to develop its own land to another purpose. If the land is subject to rights benefiting other persons, such as a right of way or a restrictive covenant, the right can be overridden and development carried out even if the right would be breached. Provision is made for the payment of compensation, but the quantum of compensation is limited to the diminution in value to the interest in land that benefited from the right. There is no provision for recovery of other losses, such as loss of business income, arising as a consequence of the overriding.
I was going to ask the Minister whether the amendment would specifically look at land already held by local authorities that is intended to be appropriated and developed in future, but he answered that question directly. However, are the provisions for compensation sufficient to compensate for losses, particularly for lost profits, and are they compatible with article 1 of the first protocol to the European convention on human rights?
Mr Jones
I thank the hon. Lady for her question. Diminution of value is how the system works under current compulsory purchase powers. The provisions are designed to extend the existing powers to other bodies with compulsory purchase powers, not to amend them. I hope that that answers her question.
Amendment 262 agreed to.
Amendments made: 263, in clause 137, page 66, line 41, at end insert—
‘( ) Subsection (1) also applies to building or maintenance work where—
(a) there is planning consent for the building or maintenance work,
(b) the work is carried out on other qualifying land, and
(c) specified authority could acquire the land compulsorily for the purposes of the building or maintenance work.’
Schedule 11 removes a number of existing powers to override easements. This amendment, together with amendments 266, 267, 268, 269 and 271, would mean that the new power in clause 137 could be exercised instead of the powers removed by Schedule 11.
Amendment 264, in clause 137, page 67, line 6, after ‘authority’ insert
‘, or
(ii) been appropriated by a local authority for planning purposes as defined by section 246(1) of the Town and Country Planning Act 1990’.
See member’s explanatory statement for amendment 262.
Amendment 265, in clause 137, page 67, line 8, after ‘building’ insert
‘, or carrying out any works,’.
Clause 137(4)(c) limits the power in clause 137(3) to use land despite existing easements or restrictions so that it may be exercised only when a specified authority could acquire land compulsorily for the purpose of erecting or constructing any building for the use in question. This amendment would adjust the restriction in clause 137(4)(c) so that it is not limited to erecting or constructing a building but includes carrying out any works.
Amendment 266, in clause 137, page 67, line 8, at end insert—
‘( ) Subsection (3) also applies to the use of land in a case where—
(a) there is planning consent for that use of the land,
(b) the land is other qualifying land, and
(c) specified authority could acquire the land compulsorily for the purposes of erecting or constructing any building, or carrying out any works, for that use.’
See Member’s explanatory statement for amendment 263.
Amendment 267, in clause 137, page 67, line 15, leave out ‘In this section’ and insert
‘In sections 137 and 138’.
The changes that would be introduced by amendments 263, 266, 269 and 271 would add considerably to the length of clause 137. This amendment, together with the motion after amendment 270, would prevent clause 137 becoming too long by removing the interpretation subsection from that clause and putting it into its own clause.
Amendment 268, in clause 137, page 67, leave out lines 18 and 19.
Amendments 262, 264 and 269 would introduce references to a local authority’s planning purposes as defined by section 246(1) of the Town and Country Planning Act 1990. The list of authorities that are local authorities for those purposes is different from the list that are local authorities for the purposes of the definition of “specified authority” in clause 137. This amendment and amendment 270 therefore remove the general definition of “local authority” and define the term “local authority” only in relation to the term “specified authority”.
Amendment 269, in clause 137, page 67, line 19, at end insert—
‘“other qualifying land” means land in England and Wales that has at any time before the day on which this section comes into force been—
(a) acquired by the National Assembly for Wales or the Welsh Ministers under section 21A of the Welsh Development Agency Act 1975;
(b) vested in or acquired by an urban development corporation or a local highway authority for the purposes of Part 16 of the Local Government, Planning and Land Act 1980;
(c) acquired by a development corporation or a local highway authority for the purposes of the New Towns Act 1981;
(d) vested in or acquired by a housing action trust for the purposes of Part 3 of the Housing Act 1988;
(e) acquired or appropriated by a local authority for planning purposes as defined by section 246(1) of the Town and Country Planning Act 1990;
(f) vested in or acquired by the Homes and Communities Agency, apart from land the freehold interest in which was disposed of by the Agency before 12 April 2015;
(g) vested in or acquired by the Greater London Authority for the purposes of housing or regeneration, apart from land the freehold interest in which was disposed of before 12 April 2015—
(h) vested in or acquired by a Mayoral development corporation (established under section 198(2) of the Localism Act 2011), apart from land the freehold interest in which was disposed of by the corporation before 12 April 2015.’
See Member’s explanatory statement for amendment 263.
Amendment 270, in clause 137, page 67, line 38, after ‘authority’ insert
‘as defined by section 7 of the Acquisition of Land Act 1981’.—(Mr Marcus Jones.)
See Member’s explanatory statement for amendment 268.
Ordered,
That Clause No. 137 be divided into two clauses, the first (Power to override easements and other rights) consisting of subsections (1) to (6) and the second (Interpretation of sections 137 and 138) to consist of subsections (7) and (8).—(Mr Marcus Jones.)
Clauses 137A and 137B, as amended, ordered to stand part of the Bill.
Clause 138
Compensation for overridden easements etc
Amendment made: 271, in clause 138, page 68, line 14, leave out subsection (5).—(Mr Marcus Jones.)
See Member’s explanatory statement for amendment 263.
Clause 138, as amended, ordered to stand part of the Bill.
Clause 139 ordered to stand part of the Bill.
Schedule 11
Amendments to do with sections 137 and 138
Mr Jones
I beg to move amendment 278, in schedule 11, page 107, line 5, at end insert—
‘Welsh Development Agency Act 1975 (c. 70)
A1 (1) Schedule 4 to the Welsh Development Agency Act 1975 is amended as follows.
(2) Omit paragraph 6 and the italic heading before it.
(3) In paragraph 9 omit sub-paragraph (a).’
This amendment would repeal paragraph 6 of Schedule 4 to the Welsh Development Agency Act 1975. The provision to be repealed is a power to override easements in certain circumstances. The power would in future be exercisable under clause 137, as amended by amendment 269.
Amendment 278 adds paragraph 6 of schedule 4 to the Welsh Development Agency Act 1975 to the list of repeal provisions in schedule 11 to the Bill, meaning that the power to override easements and other rights currently exercised under the Act will in future be exercised under clause 137, as now amended.
Amendment 278 agreed to.
Schedule 11, as amended, agreed to.
Clauses 140 to 143 ordered to stand part of the Bill.
Clause 144
Commencement