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These notes refer to the Housing and Regeneration Bill as introduced in the House of Commons on 15th November 2007 [Bill 8]
HOUSING AND REGENERATION BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Housing and Regeneration Bill as introduced in the House of Commons on 15th November 2007. They have been prepared by the Department for Communities and Local Government in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND AND SUMMARY
3. The Housing and Regeneration Bill gives effect to the Government's proposals to create the Homes and Communities Agency (HCA) and the Office for Tenants and Social Landlords. The Prime Minister's statement to Parliament of 11th July 2007 on the draft legislative programme set out the context for the Bill. The Queen's Speech on 6th November 2007 confirmed that "Available and affordable housing is one of my Government's main priorities. Legislation will be introduced to create a new Homes and Communities Agency that will deliver more social and affordable housing, and promote regeneration."
Bill 8—EN 54/3
4. Professor Martin Cave began an independent review of social housing regulation on 14th December 2006. Professor Cave's remit was to establish a clear set of objectives for the regulation of social housing to underpin any new regulatory system, present options for reform and make recommendations about institutional arrangements. His report Every Tenant Matters: A review of social housing regulation, was published on 19th June 2007. On the same day, the Government launched the consultation paper Delivering Housing and Regeneration: Communities England and the future of social housing regulation. This paper took forward Professor Cave's recommendations and set out proposals on the role, responsibilities and operation of Communities England, now the HCA. The Minister for Housing and Planning, Yvette Cooper MP, made a statement to Parliament on 15th October 2007, which set out further detail on the new social housing regulator, the Office for Tenants and Social Landlords. The Government's Housing Green Paper Homes for the future: more affordable, more sustainable, published on 23rd July 2007, set out the role of the HCA in the context of the proposals set out in the Green Paper.
5. This Bill follows from these reviews, consultations and statements.
6. Part 1 of the Bill creates the HCA and sets out its objects and powers. The main objects of the HCA will be to improve the supply and quality of housing in England; to secure the regeneration or development of land or infrastructure in England; and to support in other ways the creation, regeneration or development of communities in England or their continued well-being. The Bill also abolishes the predecessor organisations of the Urban Regeneration Agency and the Commission for the New Towns, which operated under the joint name of English Partnerships. The powers of the HCA are modelled to a large extent on those of the Urban Regeneration Agency. The HCA will take on the functions of those organisations and also certain functions of the Housing Corporation, related to investment in housing.
7. Part 2 of the Bill creates the new social housing regulator, the Office for Tenants and Social Landlords, and sets out its objectives and powers. The new regulator will regulate social housing in England provided by registered providers (which will include current Registered Social Landlords (RSLs), along with other bodies who choose to register). The new regulator will take on the regulation functions of the Housing Corporation. The Bill also abolishes the Housing Corporation.
8. The Bill will also give effect to other measures in relation to housing services which were proposed in or alongside the Housing Green Paper Homes for the future: more affordable, more sustainable on 23rd July 2007:
- proposals to enable certain local housing authorities, on application to the Secretary of State, to keep rental income from new supply dwellings (included in the Housing Green Paper);
- proposals to enable certain local housing authorities, on application to the Secretary of State, to opt out of the Housing Revenue Account Subsidy system (included in the Housing Green Paper); and
- proposals that a mandatory rating against prescribed sustainability standards should be introduced for new homes, indicating whether the home has been assessed and, if it has, the performance of the home against the standards (proposed in The future of the Code for Sustainable Homes - Making a rating mandatory, published on 23rd July alongside the Housing Green Paper).
9. The Bill will also give effect to a number of measures in the consultation paper Tenant Empowerment: A Consultation Paper, published on 11th July, which set out proposals to increase tenant empowerment. The Bill will give effect to proposals to:
- introduce a requirement for a local authority to hold a statutory ballot to ascertain tenants' views before seeking consent from the Secretary of State in relation to England or the Welsh Ministers in relation to Wales to transfer its housing stock to a private sector landlord; and
- give local authority tenants powers to consider the options for the future management of their housing stock and, if they desire, to effect a change of a landlord (subject to certain conditions).
10. The Bill will also give effect to other measures in relation to housing services:
- to allow local authorities and RSLs to offer tenancies which are not secure or assured to families referred to Family Intervention Projects;
- minor amendments to the way the Right to Buy scheme works, as set out in Clarifying the Right to Buy rules: a consultation paper, published on 22nd August 2007;
- to enable service personnel to establish a local connection with the district in which they serve, for the purpose of applying to a local housing authority for an allocation of social housing or homelessness assistance;
- to remove the requirement on local housing authorities that they be accepted by the Secretary of State for inclusion on an annual disposals programme before seeking her consent to a large scale transfer of housing to the private sector;
- to widen the existing power for the Secretary of State in relation to England and Welsh Ministers in relation to Wales to provide financial assistance for the giving of general advice in respect of residential landlord and tenant law;
- to extend from six months to two years the time limit for local authorities to prosecute those who breach any provision of building regulations to which section 35 (penalty for contravening building regulations) of the Building Act 1984 applies, as set out in Longer time limits for prosecution of breaches of Building Regulations - Consultation, published on 31st July 2007;
- to provide the same security of tenure, and other rights and responsibilities, to Gypsies and Travellers on local authority sites as Gypsies and Travellers on private sites, and occupants of other types of residential caravan site, such as park home sites. This is in response to the European Court of Human Rights ruling in the case of Connors v United Kingdom. The ruling can be found on the European Court of Human Rights Portal at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699671&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649;
- to widen the existing power for the Lord Chancellor to provide financial assistance for the giving of general advice in respect of the law relating to commonhold land relating to residential matters.
STRUCTURE OF THE BILL
11. The Bill is set out as follows:
- ???Part 1 - The Homes and Communities Agency
Chapter 1 - General
Chapter 2 - Land and infrastructure
Chapter 3 - Financial provision
Chapter 4 - Other functions of the HCA
Chapter 5 - Supplementary
- ???Part 2 - Regulation of social housing
Chapter 1 - Introduction
Chapter 2 - The Social Housing Regulator
Chapter 3 - Registration
Chapter 4 - Registered providers
Chapter 5 - Disposal of property
Chapter 6 - Regulatory powers
Chapter 7 - Enforcement powers
Chapter 8 - General
- ???Part 3 - Other provisions
Chapter 1 - Sustainability certificates
Chapter 2 - Landlord and tenant matters
Chapter 3 - Housing finance and other provisions
- ???Part 4 - Supplementary and final provisions
- Schedule 1 - The Homes and Communities Agency
- Schedule 2 - Acquisition of land
- Schedule 3 - Main powers in relation to land of the HCA
- Schedule 4 - Powers in relation to, and for, statutory undertakers
- Schedule 5 - Amendments to the New Towns Act 1981
- Schedule 6 - Transfer schemes
- Schedule 7 - Amendments of enactments: Part 1
- Schedule 8 - Penalty charge notices
- Schedule 9 - Disposals of dwelling-houses by local authorities
TERRITORIAL EXTENT
12. The Bill extends to England and Wales only, save for some consequential matters which may extend to Scotland and Northern Ireland also. Parts 1 and 2 of the Bill generally apply to England only, although some consequential matters will apply to Wales and some may extend and apply to Scotland also. Part 3 of the Bill applies to England and Wales.
13. There are no matters dealt with by the Bill which would require a Sewel motion in the Scottish Parliament. Because the Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
TERRITORIAL APPLICATION: WALES
14. Part 1 of the Bill mainly applies to England only but consequential amendments apply in Wales. The HCA will operate in England only and so any functions of the Secretary of State in relation to the agency will apply in England only. This Part also abolishes the Commission for New Towns. Functions of the Commission for New Towns in England are being transferred to the HCA. Functions of the Commission for New Towns in Wales are being transferred to the Welsh Ministers and any residual assets of the Commission for New Towns in Wales are also being transferred to Welsh Ministers.
15. Part 2 of the Bill mainly applies to England only but consequential amendments apply in Wales. The Office for Tenants and Social Landlords will operate in England only and so any functions of the Secretary of State in relation to the regulator will apply in England only.
16. Part 3 of the Bill applies to England and Wales. Powers will be exercised by the Secretary of State in relation to England and by Welsh Ministers in relation to Wales. Further detail for Part 3 is contained in Annex A to these Explanatory Notes.
COMMENTARY ON SECTIONS
PART 1 - THE HOMES AND COMMUNITIES AGENCY
Chapter 1 - General
Clause 1 - Establishment and constitution
17. This clause establishes the Homes and Communities Agency ("HCA") and introduces Schedule 1.
Clauses 2-4 - Objects, Principal Powers, Powers: general
18. The HCA will operate across England, with a view to meeting the needs of people in England, by:
- improving the supply and quality of housing;
- securing the regeneration or development of land or infrastructure; and
- supporting in other ways the creation, regeneration or development of communities or their continued well-being.
19. These objects are broadly drawn to reflect the wide range of activities that the HCA will undertake at a national level. It will work to improve housing supply, including tackling housing shortages, and to improve the quality of housing including the condition of housing. It will also undertake the regeneration and development of any type of land or infrastructure; and will have a more general role supporting the overall well-being of communities, in relation to which it will be able to establish new communities or work to regenerate or develop existing communities. The HCA will also act as the residuary body for the development corporations for new towns established under the New Towns Act 1981 and for urban development corporations (which is currently the function of the Commission for the New Towns), as set out in clause 54.
20. Generally, the HCA may do anything it considers appropriate for the purposes of its objects or for purposes incidental to them and its specific powers are set out in Chapters 2 to 4 of Part 1. Many of these powers are modelled on the powers available to the Urban Regeneration Agency, the Commission for the New Towns and the Housing Corporation.
21. The powers of the HCA are to be exercised for the purposes of the objects (or for purposes incidental to them) only. Those powers may be exercised independently of each other or together. Where the HCA is designated as the local planning authority, it will not be constrained by its objects in exercising those powers (but, in this situation, it will function in accordance with existing planning legislation).
Chapter 2 - Land and infrastructure
General
Clauses 5-7 - Powers to provide housing or other land; Powers for regeneration, development or effective use of land; Powers in relation to infrastructure
22. Clause 5 enables the HCA to provide or facilitate the provision of housing or other land. Subsection (3) explains the meaning of "provide" in this context.
23. Clause 6 enables the HCA, directly or indirectly, to regenerate or develop land and bring land into more effective use.
24. Clause 7 enables the HCA to provide or facilitate the provision of infrastructure. Infrastructure is defined in clause 2(3) and includes, for example, utilities such as water, electricity, gas, transport facilities, retail and other business facilities. Subsection (3) explains the meaning of "provide" in this context.
Powers to deal with land etc.
Clause 8 - Powers to deal with land etc.
25. The HCA will be able to acquire, hold, improve, manage, reclaim, repair or dispose of housing or other land or property, or facilitate these activities. It will also be able to carry out building and other operations, including the demolition or conversion of buildings, or facilitate such operations. These powers are modelled on those of the Urban Regeneration Agency.
Clause 9 - Acquisition of land
26. The HCA may need to own land in order to regenerate or develop it or facilitate its regeneration or development. The HCA will therefore be able to purchase land by agreement or may, where authorised to do so by the Secretary of State, acquire land and new rights over land compulsorily. This clause is modelled on the powers given to the Urban Regeneration Agency under section 162 of the Leasehold Reform, Housing and Urban Development Act 1993.
27. This clause also introduces Schedule 2.
Clause 10 - Restrictions on disposal of land
28. The HCA is not permitted to dispose of land for less than the best market value it can reasonably expect to obtain, unless the Secretary of State consents. This restriction does not apply where the HCA proposes to dispose of land by granting or assigning a short tenancy, that is to say of a term of seven years or less.
29. Unless the Secretary of State consents, the HCA is not permitted to dispose of land that it has acquired by way of compulsory purchase. Such a disposal would also be subject to the restrictions on disposal at less than best consideration. Aside from this, the HCA may dispose of land held by it in any way it considers appropriate.
Powers in relation to acquired land
Clause 11 - Main powers in relation to acquired land
30. Clause 11 introduces Schedule 3.
Clause 12 - Powers in relation to, and for, statutory undertakers
31. Clause 12 introduces Schedule 4.
Planning
Clauses 13 -17 - Power of Secretary of State to make designation orders; The HCA as the local planning authority; Adoption of private streets; Appeals against adoption of private streets: Traffic regulation orders for private streets
32. Under clause 13, the Secretary of State has the power to designate an area in England where the Secretary of State is of the opinion that the area is suitable for development and that one of two conditions are fulfilled. Condition 1 is that it is appropriate for the HCA to be the local planning authority in relation to that area for all or particular permitted purposes in relation to all or particular kinds of development and Condition 2 is that it is appropriate for the provisions in clauses 15 and 16 or 17, or both sets of provisions to apply in relation to that area.
33. The designation of an area is to be made by order and before making such an order the Secretary of State is required to consult a variety of bodies.
34. Where a designation order is made in accordance with Condition 1, clause 14 sets out the functions which may be conferred on the HCA in relation to that designated area. In particular the designation order may provide that the HCA is to be the local planning authority in relation to development control under Part 3 of the Town and Country Planning Act 1990, it may be given responsibilities in relation to the preparation and maintenance of Local Development Frameworks under Part 2 of the Planning and Compulsory Purchase Act 2004, it may be the local planning authority in relation to applications for listed building and conservation area consent and it may be the hazardous substances authority for the designated area.
35. Where the functions of the local planning authority and hazardous substances authority are conferred upon the HCA in relation to a designated area, it will have the power to charge fees in relation to certain applications. The Secretary of State is given the power to prescribe in regulations fees payable for certain applications, including applications for planning permission and hazardous substances consent. The power to set fees in relation to applications for planning permission is found in s.303 of the Town and Country Planning Act 1990. Regulations made under this section are subject to the affirmative resolution procedure. In relation to applications for hazardous substances consent, the power of the Secretary of State to prescribe fees is found in s.26A of the Planning (Hazardous Substances) Act 1990. The Secretary of State also has the power to prescribe for the making of reasonable charges for the provision of copies of documents required by or under Part 2 of the Planning and Compulsory Purchase Act 2004. Whilst there is no express restriction on the regulation making powers to restrict fees to cover costs, the intention is that the power will be so exercised.
36. A designation order under clause 13 may provide that clauses 15 and 16 should apply in relation to the designated area, or that clause 17 should apply in relation to that area, or that all clauses should apply.
37. Clause 15 confers a power on the HCA to serve an adoption notice on the street works authority, where works have been executed on a private street within the designated area. The adoption notice requires the street works authority to declare the street to be a highway maintainable at public expense.
38. Clause 16 gives the street works authority the power to appeal to the Secretary of State against an adoption notice served by the HCA under clause 15. Where an appeal is made the Secretary of State must consider any representations made by the HCA and street works authority and has the power to confirm the notice, with or without modifications, or set it aside. The Secretary of State also has the power to impose conditions, including financial conditions, upon the HCA which they must comply with for the notice to take effect.
39. Clause 17 gives the Secretary of State the power to make traffic regulation orders in relation to any private street within a designated area, where the HCA has made representations to the Secretary of State that an order should be made and the Secretary of State considers that the traffic authority responsible for that private street do not intend to make the suggested order.
Clause 18 - Regional planning
40. Where a regional planning body is to exercise certain of its functions (in particular the preparation of a draft revision, or review, of the regional spatial strategy and monitoring of the implementation of that strategy throughout the region, under section 4 of the Planning and Compulsory Purchase Act 2004) the regional planning body is required to seek the advice of any county council, metropolitan district council, district council for an area for which there is no county council and national park authority which is within the region. Clause 18 adds the HCA to this list of bodies from whom the regional planning body must seek advice, where the HCA is the local planning authority for a designated area.
Other powers etc. in relation to land
Clauses 19 and 20 - Power to enter and survey land; Section 19: supplementary
41. If the HCA wishes to acquire land, or there is compensation to be determined for the acquisition of that land, a person authorised by the HCA may at a reasonable time enter the land to estimate its value or survey it. The authorised person must, if asked and before entering the land, produce evidence to show the authority to enter that land. The authorised person cannot demand entry on to the land unless the HCA has given at least 28 days notice of the intended entry. Should the land suffer any damage as a result of the authorised person gaining entry to the land, persons with an interest in that land can recover compensation from the HCA. A person commits an offence if they intentionally obstruct another person in the exercise of that other person's powers under clause 19. A person who commits such an offence is liable on summary conviction to a fine not exceeding level 2 on the standard scale, which is currently a fine not exceeding £500.
42. In order to estimate land value it may be necessary to establish the nature of the subsoil or the presence of minerals in it. Before carrying out this type of inspection notice has to be given of the intention to carry it out. This must be done in the notice described above. Also, if the land is held by a statutory undertaker and the inspection would seriously interfere with the carrying out of their functions, the appropriate Minister's consent is needed for the inspection to take place. These powers are modelled on those of the Urban Regeneration Agency.
Clause 21 - Powers to connect private streets to highways
43. This clause enables the HCA to serve a connection notice on the local highway authority requiring it to connect a private street to an existing highway. This clause sets out the requirements as to what the notice should contain, who should be consulted and how appeals to the Secretary of State can be made. Upon appeal the Secretary of State must consider the representations made to him by the HCA and local highway authority and determine the appeal by confirming the connection (with or without modifications) or setting the notice aside.
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