Clause 265 - Former right to buy flats etc: service charge loans

763.     Clause 265 amends section 450C of the Housing Act 1985 to add a power for the Secretary of State to make regulations allowing landlords, where they make loans to leaseholders to assist them in paying service charges, to do so on terms other than an interest bearing loan. A power is included to provide for charging for the services of the District Valuer, since it may be appropriate to specify valuation of the flat by a District Valuer in regulations. Fees charged by the District Valuer are limited to recovery of expenses, and are governed by usual administrative law principles of reasonableness. Provisions for service charge loans under regulations made under the powers in sections 450A to C of the Housing Act 1985 apply only to properties sold under the Right to Buy.

Clause 266 - Other amendments

764.     Clause 266 corrects two errors in schedules to the Housing Act 1985 ("the Act"). The first correction, to Schedule 5 to the Act, removes an unintended right of further appeal to the High Court against the decision of a residential property tribunal, where tenants who have been refused the Right to Buy on the ground that the property is particularly suitable for occupation by elderly persons have appealed to a residential property tribunal. It was intended that the tribunal's decision should be final; further appeal to the Lands Tribunal is already excluded. A possible right of further appeal to the High Court was inadvertently suggested by interaction between Schedule 5 and section 231 of the Housing Act 1996. The second correction amends a paragraph reference in Schedule 5A to the Act.

Other

Clause 267 - Disposals of dwelling-houses by local authorities

765.     Clause 267 introduces Schedule 9.

Clause 268 - Financial assistance for information and other services

766.     This widens the existing power contained in section 94 of the Housing Act 1996 for the Secretary of State in England and the Welsh Ministers in Wales to provide financial assistance for the giving of general advice in respect of residential landlord and tenant law, including advice about estate management schemes in connection with enfranchisement.

767.     Financial assistance may now also be provided for the giving of information and training, and for the running of an alternative dispute resolution service.

768.     The ability to provide assistance in such form and on such terms as the Secretary of State in England and the Welsh Ministers in Wales consider appropriate will remain.

Chapter 3 - Housing finance and other provisions

Housing Revenue Account Subsidy

769.     These provisions also provide a power for the appropriate person (the Secretary of State in England and Welsh Ministers in Wales) and those local housing authorities who keep a Housing Revenue Account to enter into agreements concerning Housing Revenue Account Subsidy. This enables the parties to agree that no Housing Revenue Account Subsidy is payable by or to the appropriate person. Agreements can be for either an authority's whole stock or for specified properties.

Clause 269 - Exclusions from subsidy arrangements

770.     Subsection (1) inserts a new section 80B into the Local Government and Housing Act 1989 (the 1989 Act) which by virtue of subsection (2) of section 80B disapplies sections 79 to 80A of the 1989 Act where an agreement exists between the appropriate person (the Secretary of State in England and Welsh Ministers in Wales) and a local housing authority. An agreement disapplying sections 79 to 80A would have the effect that no Housing Revenue Account Subsidy was payable by or to the appropriate person in respect of the properties covered by the agreement.

771.     Subsection (3) of section 80B gives examples of the kinds of terms and conditions that such agreements may contain. These include conditions specifying whether the agreement is to be for a fixed or indeterminate period, setting out the payments to or from the appropriate person for making the agreement, rent levels, the giving of information and the variation or termination of the agreement.

772.     Subsections (4), (5) and (6) of section 80B enable the appropriate person to make directions concerning the variation or termination of an agreement to deal with issues such as necessary transitional, consequential, incidental or supplementary changes. Directions cannot, however, override the terms of the original agreement without the consent of the relevant local housing authority. Directions may in particular deal with the return to the subsidy regime of an authority's housing stock.

773.     Subsection (8) of section 80B defines key terms used in clause 269. In particular the definition of property ensures that the agreement can cover both current and future properties.

774.     Subsection (3) amends paragraph 2 of Part 3 of Schedule 4 to the 1989 Act which currently provides authorities a very limited power to move credits from their Housing Revenue Account to the general fund, so that it does not apply in respect of those properties subject to an agreement under section 80B(1)(b).

Homelessness and allocation of housing

Clause 270 - Armed forces: homelessness and allocation of housing

775.     Clause 270 amends section 199 of the Housing Act 1996, which sets out the circumstances when a person has a local connection with the district of a local housing authority. Housing authorities may take account of whether a person has a local connection with their district when considering the person's priority for an allocation of housing under Part 6 of the 1996 Act or when making inquiries about whether the person is homeless and owed a duty for the purposes of Part 7 of the 1996 Act. The effect of the amendment is that a person in the armed forces will now be able to establish a local connection with a district through residence of choice or employment there, in the same way as a civilian.

Other

Clause 271 - Building regulations: time limit for prosecutions

776.     This clause amends section 35A of the Building Act 1984 to extend to all provisions of building regulations longer time limits for bringing prosecutions for contraventions of those provisions. At present the longer prosecution time limits provided for by section 35A can apply only to contraventions of provisions of building regulations which were made for the purpose of furthering the conservation of fuel and power or otherwise in connection with the use of fuel and power, or for the purpose of reducing the emission of greenhouse gases, where those provisions have been designated in regulations.

777.     The current time limit within which prosecutions for breaches of provisions of building regulations must be brought is six months from the date the offence is committed (in accordance with the standard provisions for summary offences set out in section 127(1) of the Magistrates' Courts Act 1980). The amendments in this clause will bring prosecutions for all building regulation contraventions within the time limit provisions in section 35A. Thus there will be an absolute limit of two years from the date the offence is committed within which summary proceedings must be commenced, subject to a requirement that proceedings must be brought within 6 months of the date on which sufficient evidence to justify a prosecution becomes known to the person who commences the proceedings.

778.     Subsection (5) provides that the extended time limits for prosecution will not apply to any offence committed before the amendments to section 35A come into force, i.e. the amendments will not be retrospective.

Clause 272 - Protected mobile home sites to include sites for gypsies and travellers

779.     Clause 272 amends the definition of a "protected site" in section 5(1) of the Mobile Homes Act 1983 by removing the exclusion for land occupied by a local authority as a caravan site providing accommodation for gypsies and travellers. The Mobile Homes Act 1983 will therefore apply to an agreement to station a mobile home (or caravan) on a local authority gypsy and traveller site.

Clause 273 - Financial assistance for certain services about commonhold

780.     This widens the existing power contained in section 62 of the Commonhold and Leasehold Reform Act 2002 for the Lord Chancellor to provide financial assistance for the giving of general advice in respect of the law relating to commonhold land so far as relating to residential matters.

781.     Financial assistance may now also be provided for the giving of information and training, and for the running of an alternative dispute resolution service. The Lord Chancellor may also provide financial assistance for the giving of advice in respect of freehold land so far as relating to residential matters when that advice is connected to advice about aspects of commonhold land.

782.     The ability to provide assistance in such form and on such terms as the Lord Chancellor considers appropriate will remain.

PART 4 - SUPPLEMENTARY AND FINAL PROVISIONS

Clause 274 - Orders and regulations

783.     Clause 274 makes general provision for orders and regulations under the Bill. It provides for regulations and orders to be made by statutory instrument except where specified otherwise (subsection (2)) and for the Parliamentary procedure which is to apply in respect of various instruments (subsections (3) to (7)).

784.     Subsections (6) and (7) provide for the procedure to be followed in the National Assembly for Wales in relation to instruments made by Welsh Ministers.

Clause 275 - Consequential amendments and repeals

785.     Clause 275 gives the Secretary of State power by order to amend, repeal or revoke enactments in order to make supplementary or consequential provisions for the purpose of giving full effect to the Bill. Subsection (4) enables Welsh Ministers to make consequential amendments and repeals in relation to matters where functions are exercised by Welsh Ministers. This clause also introduces Schedule 10.

Clause 276 - Transitional, transitory or saving provisions

786.     Clause 276 enables the Secretary of State by order to make such transitional, transitory or saving provisions as are needed in connection with the coming into force of the Bill and for Welsh Ministers to have similar power in connection with Welsh provisions.

Clause 277 - Financial provisions

787.     Clause 277 sets out how money is to be provided by Parliament for any expenditure incurred by a Minister of the Crown in connection with the Bill. Any sums received by a Minister of the Crown are to be paid into the Consolidated Fund so far as not required to be paid into the National Loans Fund.

Clauses 278 - 280 - Extent; Commencement; Short title

788.     These clauses provide for the extent, commencement and short title of the Bill.

Schedule 1 - The Homes and Communities Agency

789.     Schedule 1 sets out the constitution of the HCA, and includes provisions about its status, membership, procedure, delegation, appointment of its chief executive and other employees, pay and pensions, accounts and annual reports. The consent of the Secretary of State is required for certain key decisions of the HCA in relation to appointments and finances.

790.     The Board of the HCA is to consist of not less than six members appointed by the Secretary of State. Paragraph 2 of the Schedule details the arrangements for the terms of appointment of members and includes provision about vacation of office.

791.     Paragraph 3 makes provision about members' remuneration, allowances and pensions.

792.     Paragraph 4 details arrangements for the appointment, terms and conditions, pay and pensions of the HCA's chief executive and staff. The Secretary of State must approve these arrangements.

793.     Paragraph 5 enables the Secretary of State to fund the HCA and paragraphs 6 to 10 detail how the HCA is to organise its committees, including arrangements for members to declare interests, and for the delegation of functions.

794.     Paragraphs 11 to 17 detail arrangements for the HCA's financial reporting of its accounts, and other administrative matters.

795.     Paragraph 18 enables the Secretary of State instead of the HCA to appoint the first chief executive and to determine the terms and conditions of his service.

Schedule 2 - Acquisition of land

796.     Schedule 2 makes further provision regarding the acquisition of land and new rights over land by the HCA.

797.     It applies the Acquisition of Land Act 1981 (with modifications) to the acquisition of land and new rights over land. The 1981 Act sets out the standard compulsory purchase procedure, which is applied in the case of most compulsory acquisitions. In summary:

• The 1981 Act contains requirements as to publicity and notification, to enable any person to submit an objection to the Secretary of State within the specified period.

• A statutory objector is a "qualifying person" on whom section 12 of the 1981 Act requires notice to be served, and includes owners, leaseholders, tenants and occupiers of any land in the compulsory purchase order, and any other person having a right to claim compensation for interference with rights they enjoy over land, or who are likely to be entitled to make a claim for compensation for "injurious affection" (decrease in value of retained land as a result of the acquisition and proposed use of the land which is being acquired).

• If a relevant objection is made by a person with a statutory interest in the land, a public local inquiry will generally be held. It is also open to the statutory objectors to agree to their objections being considered through the written representations procedure.

• An inspector will prepare a report and the Secretary of State will then consider the findings of the report and the inspector's recommendation when deciding whether or not to confirm a compulsory purchase order.

• Where an order is confirmed, the usual compensation regime will apply, which is linked to the value of the land being acquired and may also include compensation for disturbance and other losses and, for example, legal costs in preparing a compensation claim.

798.     Various statutory bodies - including the Urban Regeneration Agency under the 1993 Act - have the power to acquire land which is, or forms part of, a common, open space or allotment. The Acquisition of Land Act 1981 makes separate procedural provision in relation to such land. A compulsory purchase order in respect of any of these types of land will be subject to special parliamentary procedure (which ensures a high level of parliamentary scrutiny) unless the Secretary of State is satisfied that equivalent land has been given in exchange for such land or that certain other limited circumstances (for example, that the land area is not more than 250 square yards) apply. Provision is also made in respect of notice requirements, an opportunity for objections to be made and a power for the Secretary of State to hold a public local inquiry.

799.     Part 1 of the Schedule makes provision for the extinguishment of private rights of way or rights in relation to apparatus and for apparatus to vest in the HCA (subject to any agreement between the HCA and the person in whom the right or apparatus is vested). Compensation is payable to any person who suffers loss as a result of the extinguishment of any such right or the vesting of any apparatus. These provisions do not apply to any right vested in, or apparatus belonging to, statutory undertakers for the purpose of carrying on their undertaking.

800.     Schedule 2 also ensures that following a compulsory acquisition the usual regime for compensation applies. The compulsory acquisition legislation applied by Schedule 2 contains various provisions for the recovery or award of costs. Where any provision is made in respect of costs, or where there is a power to make an order in respect of costs, such provision would be governed by usual administrative law principles of reasonableness.

801.     Part 2 of Schedule 2 also applies Part 1 (except section 31) of the Compulsory Purchase Act 1965 to the acquisition of land by agreement (so far as applicable).

Schedule 3 - Main powers in relation to land of the HCA

802.     Part 1 of Schedule 3 makes provision in respect of powers to override easements.

803.     It may be necessary for the HCA to override easements, for example rights of access or other rights over land, in order to develop or regenerate land. Part 1 is modelled on paragraph 5 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993 which gave the Urban Regeneration Agency similar powers. The HCA (or any person working on behalf of the HCA) will be able to carry out development or regeneration works on its land even if they interfere with a right or interest in respect of that land. However any works undertaken under this provision must still comply with the relevant planning permission.

804.     A right to compensation may arise under section 7 or 10 of the Compulsory Purchase Act 1965 in relation to an interference or breach in pursuance of this power. In addition, if compensation is payable by a third party and is not paid by them, the HCA can be held liable to pay that compensation.

805.     Part 2 of Schedule 3 makes provision in respect of powers to extinguish public rights of way.

806.     The Secretary of State may by order remove any public right of way over land owned by the HCA. This is modelled on paragraph 9 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993, which gave the Urban Regeneration Agency the same power.

807.     Part 2 sets out the statutory procedure that must be followed if the Secretary of State proposes to make an order to extinguish a public right of way. It includes a duty to consider objections and the power to hold a public local inquiry.

808.     The Secretary of State must publish a notice stating the effect of the order and the time by when, and manner in which, any objections to the order must be made. The Secretary of State must serve a copy of the notice on the relevant local planning authority and the relevant highway authority. The procedure also includes a duty to consider any objections that are properly made, a power to give an objector an opportunity to have their objection heard, and a power for the Secretary of State to hold a public local inquiry if the Secretary of State considers the matters being discussed require such investigation.

809.     Where an order under this power is made and any electronic communications apparatus is installed for the purposes of an electronic communications code network under, in, on, over, along or across the land over which the right of way subsisted, provision is made in this Part of the Schedule for the operator of the network to remove, or to serve a notice on the HCA of an intention to abandon, the apparatus within a three month period from the date the right of way is extinguished. The operator is entitled to recover the expense of providing any substitute apparatus from the HCA as a result of the removal or abandonment of the apparatus.

810.     Part 3 of Schedule 3 makes provision in relation to burial grounds and consecrated land etc.

811.     This Part makes provision in respect of burial grounds (which are defined as including any churchyard, cemetery or other ground, whether or not consecrated, which has at any time been set apart for the purposes of interment), consecrated land and other land connected to religious worship belonging to the HCA. This Part is modelled on equivalent powers given to the Urban Regeneration Agency in paragraph 6 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993.

812.     Any burial ground which has been used for the burial of the dead may not be used by the HCA until prescribed requirements about the removal and reinterment of human remains, and the disposal of monuments, have been complied with. Regulations made under this power must specifically make provision to enable relatives or personal representatives of any deceased person themselves to undertake the removal and reinterment of the remains of the deceased, and the disposal of any monument commemorating the deceased. The regulations must also require the persons in whom the burial ground is vested to meet the cost of the removal, reinterment and disposal (although the regulations may prescribe a maximum amount). The Secretary of State may also give directions regarding the removal and reinterment of human remains in any case, and the regulations must require compliance with any directions given.

813.     The HCA may use consecrated land (other than burial grounds) provided that such use complies with requirements in regulations (which may be made by the Secretary of State under this Schedule) about the disposal of monuments and any provisions prohibiting or restricting use of the land while any church or other building (or part of any church or other building) used, or formerly used, for religious worship remains on the land.

814.     Use of any other land which is connected to religious worship (which is not consecrated land nor land which consists of, or forms part of, a burial ground) and at the time of acquisition by the HCA included a church or other building used, or formerly used, for religious worship, or the site of such a church or building, is subject to requirements in regulations (which may be made by the Secretary of State under this Schedule) about the disposal of monuments.

815.     Subject to the regulations providing otherwise, the Schedule provides that no licence or authority is required where the removal and reinterment of human remains, or the removal or disposal of any monuments, is carried out in accordance with regulations made under the power in this Schedule. In addition, the Schedule provides that section 25 of the Burials Act 1857 (which prohibits the removal of human remains without the licence of the Secretary of State except in certain cases) does not apply to a removal of human remains carried out in accordance with regulations made under this Schedule.

816.     Part 4 of Schedule 3 makes provision in respect of powers in relation to open spaces.

817.     The HCA may use any of its land which is, or forms part of, a common, an open space or an allotment in any way provided it is in accordance with planning permission (despite anything in legislation relating to that type of land or under which that land is specifically regulated). This clause is modelled on a power applied to the Urban Regeneration Agency contained in paragraph 7 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993.

Schedule 4 - Powers in relation to, and for, statutory undertakers

818.     Schedule 4 is modelled on provisions in paragraphs 12 to19 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993.

819.      "Statutory undertakers" for the purposes of Schedule 4 are defined as those persons who are or who are deemed to be "statutory undertakers" for the purposes of any provision of Part 11 of the Town and Country Planning Act 1990. For example, this includes persons authorised by any enactment to carry on any railway, light railway, tramway, road or water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking.

820.     Part 1 of the Schedule enables the HCA to serve a notice on a statutory undertaker extinguishing certain rights over land of the HCA vested in, or belonging to, the statutory undertaker or stating that apparatus vested in, or belonging to, the statutory undertaker must be removed from land of the HCA. The statutory undertaker may serve a counter-notice objecting to the provisions of the notice and detailing the grounds of their objection. The provisions set out the subsequent procedure to be followed. A statutory undertaker is entitled to compensation if a right is extinguished or any requirement is imposed upon them under this Part of this Schedule. These provisions apply to the operator of an electronic communications code network as a statutory undertaker in certain circumstances.

821.     Part 2 of the Schedule applies where apparatus of the statutory undertaker is situated on, under or over the land of the HCA and the statutory undertaker needs to remove or re-site the apparatus in order to carry out development. In such circumstances a statutory undertaker may serve notice on the HCA claiming the right to enter land of the HCA and remove or re-site the apparatus. The HCA may serve a counter-notice objecting to the provisions of the notice and detailing the grounds of objection. The provisions set out the subsequent procedure to be followed. If works are to be carried out, the statutory undertaker and the HCA may arrange for the HCA to carry out the works under the supervision of the undertaker. Statutory undertakers are entitled to compensation from the HCA in respect of any works carried out under this Part of this Schedule.

822.     Part 3 of the Schedule enables statutory undertakers to make representations to the Secretary of State and appropriate Minister for an extension or modification to their functions. The HCA may also make representations for the extension or modification of the functions of a statutory undertaker. Subject to specified conditions the Secretary of State and the Minister may make an order accordingly. The statutory undertaker or the HCA (that is, whoever made the representations) must publish a notice specifying the time by when, and manner in which, objections may be made, and any other details the Secretary of State and Minister direct should be included. The provisions set out the subsequent procedure to be followed by the Secretary of State and the Minister in considering any objections and include the power to hold a public local inquiry. An order may, for example, give a statutory undertaker power to acquire land (whether compulsorily or by agreement) and to apply enactments relating to the acquisition of land, which would ensure compensation would be payable as usual in such cases. An order may give effect to any financial arrangements agreed between the HCA and the statutory undertaker, or specify a tribunal to determine the issue in the absence of any such financial arrangement. Orders under this Part of the Schedule are subject to special parliamentary procedure, which ensures a high level of parliamentary scrutiny.

823.     Part 4 of the Schedule enables a statutory undertaker to be relieved of carrying out some of their obligations where they have made representations to the appropriate Minister and the Minister is satisfied that meeting those obligations has been made impracticable following certain specified acts or events. Subject to specified conditions the Minister may make an order accordingly. The statutory undertaker must publish or serve notices (or both) in accordance with any directions given by the Minister. The provisions set out the subsequent procedure to be followed by the Minister in considering any objections received and include the power to hold a public local inquiry. If an objection is properly made and not withdrawn the order will be subject to special parliamentary procedure. The provisions also set out how an order may be challenged.