Housing and Regeneration Bill

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Clause 13

Power of Secretary of State to make designation orders
Lembit Öpik: I beg to move amendment No. 98, in clause 13, page 5, line 12, after ‘(a)’, insert ‘subject to social and geographical considerations,’.
The amendment would introduce the words “subject to social and geographical considerations” into subsection (1)(a) so that it read:
“(1) The Secretary of State may by order designate an area in England if the
Secretary of State considers that—
(a) subject to social and geographical considerations, the area is suitable for development”.
The reason for the amendment is that I think that every Member of Parliament has experienced the frustrations of local communities who feel that social and geographical considerations—particularly social ones—have not been taken into account when a development is forced on them. Introducing the requirement for consideration will enable local communities genuinely to feel that their concerns have been heard. It should also be useful to the HCA and to the Secretary of State because, on occasions, that kind of consideration might prevent a social catastrophe or the misuse of ground because geographical considerations have not been taken into account. Had such wording been in place in the past, perhaps we would not have had so much development on flood plains—and we know the consequences of that.
I ask the Minister to provide his views on the benefits of explicitly introducing social and geographical considerations into the deliberations of the Secretary of State when making designation orders.
Mr. Wright: I feel as if I am being unduly harsh on the hon. Gentleman today, and I do not mean to be, but I have to say that I was grateful to him for clarifying the amendment because I was at a loss as to what it meant. Largely because of that uncertainty, I do not think that the amendment adds any value to the clause; it would merely serve as the beginning of a list of things—we are back to the list principle that we so enjoyed on Thursday—that the Secretary of State would need to take into account when considering whether to exercise her designation powers under clause 13. We have had many discussions, which I have enjoyed, about the list principle. Placing in the Bill two matters that the Secretary of State would have to take into account before an area could be designated suggests the exclusion of other considerations.
In the context of the Secretary of State’s consideration of whether to designate an area, I would suggest, with the greatest respect to the hon. Gentleman, that a list is pointless. Each area will be set out in a designation order made by the Secretary of State and, in deciding to exercise that power, she will need to be satisfied that designating an area and conferring local planning authority powers on the agency is justified. The Secretary of State’s decision would be open to challenge in the courts, as well as being subject to parliamentary scrutiny. She would need to demonstrate that her decision to designate an area was reasonable.
In conclusion, the amendment is not necessary and adds nothing to the understanding of clause 13. I do apologise to the hon. Gentleman for that wording. I hope that the Committee is content with what I have said, and I invite the hon. Gentleman to withdraw amendment No. 98.
Lembit Öpik: The Minister says that he is perhaps being unduly harsh on me, He only serves to make things more difficult for himself after the next general election when, as I sit in his place, I shall remember his intransigence. But I hope that I shall not pay him in like kind; I shall listen to the merits of his arguments and then reject his amendments all the same, as he is doing with me.
I can see that the Minister is terrified of lists, but there is an irony in that, as has been made clear, because the Government themselves have included lists in this very Bill. So that is nothing more than a moot point in his objection to what I am suggesting. Nevertheless, the Minister gave some reassurance that these things will have to be taken into account, although in a different way. In order not to prolong the debate, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Wright: I beg to move amendment No. 20, in clause 13, page 6, line 14, leave out second ‘and’.
The Chairman: With this it will be convenient to discuss Government amendment No. 21.
Mr. Wright: In keeping with the previous debate and the remarks made by the hon. Member for Montgomeryshire, I too will be short and sweet—I am certainly short. Amendments Nos. 20 and 21 provide for the insertion of a reference to part 8 of the Planning Bill, which is currently being considered just down the corridor.
Part 8 of the Planning Bill makes provision for enforcement of development control where a development is or forms part of a nationally significant infrastructure project. Part 8 gives the local planning authority various functions: right of entry, right to require information, power to serve notice of unauthorised development and power to apply for injunctions to stop continuing breaches of development consent. Amendments Nos. 20 and 21 ensure that, where it is proposed to confer local planning authority functions on the agency in relation to a designated area, that could include functions under part 8.
Grant Shapps: The principle concern about the clause and the amendment is that, essentially, they set up a duplicate local planning authority—under the auspices of the Homes and Communities Agency, with a whole pile of additional powers. The interesting thing to consider is whether this is intended, as we suspect, to railroad through higher numbers of housing developments at a time or in a place where the local community perhaps has perfectly reasonable and legitimate reasons for objecting, such as local hospitals simultaneously closing or services being cut in other ways, or at least not provided in terms of infrastructure. What makes me curious about the clause and the amendments is that the Green Paper alludes to all this.
First, the Green Paper talks about applications being granted on appeal. With the use of the power vested in the HCA under the clause, designation orders could be used, in effect, to ram through the application. Another aspect of the Green Paper—surprisingly not carried through in the Bill, the clause or the amendments—was the suggestion that there would be something of a carrot approach; that funding would be attributed to local authorities that were proactive in creating an over-supply of housing. Yet I do not see any great move towards that here.
Can the Minister reassure us that, in using the designation orders, the powers of the agency will not be used simply to override local authorities and that the local authority will not be usurped by the HCA coming in with greater planning powers than those of the local authority, sometimes against the wishes of the local people, and riding roughshod over local desires? The Minister and I have different views on how to produce the increase in housing that we undoubtedly need in this country, and I think that the clause and the amendments rather describe that difference, which is all about top-down powers. If the local authority is not doing it, then the HCA will, through designation orders. I would be grateful for some reassurance that the intention of the amendments is not further to augment the powers of the HCA.
Mr. Syms: I, too, have a few concerns. It is appropriate to try and flesh out what the Government intend. For example, in docklands, I can easily see that there might be a need to go across local authority boundaries, because those boundaries do not always conform to a particular development area. I can also see that under clause 13 the Secretary of State would have to consult, so no doubt we would be aware of the local authority’s views. A moment ago the Minister talked about parliamentary scrutiny, so no doubt there would be an opportunity for us to have some debate or argument about what is proposed.
My first concern is that the agency could end up both as a planning authority and as a developer or involved with development. Local authorities have to wear different hats, and the planning hat is sometimes different to the development hat. Secondly, if a designation order is passed, is it time-limited? While one may have a view about the time in which housing and development need to be produced in a particular area of a city or community, the default position always ought to be that the local authority is the principal planning authority. Is the objective of a designation order to achieve a perceived objective over a period of time with an end, when the powers will automatically be restored to a local borough or authority? It is quite important that that is the case. When powers are conferred, in effect, on a quango, and taken away from a democratic body, there should be some kind of time limitation.
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Another concern is that the planning hat does require—sometimes through section 106 agreements or through the Government’s latest proposals—some degree of planning gain in respect of local authorities. With some of these developments, the money no doubt will be going in, rather than a great amount of money being generated. Who would get the section 106 development money? Would it be the Housing Corporation or would there be some means of sharing that money with the borough in which these developments are going up?
I would really like the Minister to state whether the scheme is time-limited and what happens to any money from planning gain. I am also curious to hear him give some examples of where this might occur. I used the example of the docklands development in east London, where we had the enterprise zones. Could he give some indication of how large this could be, or how small? I have not got a feel for whether we are talking about small areas of several hectares in a key development costing some hundreds of millions of pounds, or quite large areas. I just do not understand what the Government want with this aspect of clause 13.
Lembit Öpik: I suspect, on that last point, that it would be established by precedent, but I would be interested to know what the Minister thinks. For the reasons already described, I ask him what would prevent the use of this power regularly to sidestep troublesome local authorities that are slowing up the policy implementation of national Government—or is that in fact the purpose of this Government amendment?
Mr. Wright: I seek your ruling, Mr. Gale, since some of the questions seem to stray towards a clause stand part debate. I would like your guidance on whether that is acceptable.
The Chairman: I am perfectly happy. It makes eminent sense to me.
Mr. Wright: Thank you, Mr Gale. I have been interested in some of the comments, and I do think this is one of the main dividing lines between us and the Opposition. I was very intrigued by what the hon. Member for Welwyn Hatfield said about railroading and riding roughshod over local authorities. I have made it clear time and again that that is simply not our approach. We want to make sure that local authorities are stepping up to the plate. That is the whole purpose of the Homes and Communities Agency. We are absolutely committed to working with and supporting local authorities.
Lembit Öpik: I remind the Minister that although that may not be his approach—I take him at his word on that—that is not how we must test this legislation. How can he be sure that other Governments and other Ministers, who may not take his benign approach towards this issue and who may have a political agenda of their own, will not abuse the legislation that we are introducing, including this specific amendment?
I also reiterate to the Committee that local authorities are very much the repository of skills and expertise, particularly in their own local circumstances. They have the means by which they can regenerate their area; they are best placed to know what their area needs.
In some admittedly rare cases—I imagine that the whole Committee agrees with this—the regeneration challenge that some local authorities face means that they will need additional help and support. That is the purpose of clause 13. In such circumstances, the Homes and Communities Agency will be there to take a more direct role. The agency will play a part in that skills agenda—in ensuring that people have the required skills to step up to the plate and make sure that homes and regeneration development is carried out in their area.
I mentioned earlier—it is a recurring theme of mine—that the new agency has a unique position. It brings together land and investment for the purposes of regenerating and developing areas for the benefit of the wider community. In order to exploit that unique position and the huge potential for development, we need to be able to give the agency direct planning powers wherever appropriate. That is unlikely to happen frequently, and in any case it is not a new concept.
It is also worth pointing out that the agency will have wide powers in relation to regeneration, infrastructure, land acquisition and compulsory purchase; we have mentioned those powers before and discussed them in earlier clause stand part debates. In contrast, planning powers will only ever be granted to the agency on a case-by-case basis and in relation to defined localities. Each area will be set out in a designation order, made by the Secretary of State, so she will need to be satisfied that designating an area where the HCA can operate as the local planning authority, rather than the existing council doing so, is demonstrated and justified.
Grant Shapps: I still seek clarification on this issue, because it seems to me that a local authority could carry out some sort of consultation on, for example, building more homes, decide that—for a variety of reasons, including lack of infrastructure and services—it would be inappropriate in that particular area, and then be overturned by the HCA coming in and simply saying, “Actually, we are not interested in that process. We now have the designation order, which will have those 5,000, 10,000 or 20,000 homes built right there.” Where are the safeguards in this clause to prevent the local community from being overridden?
Lembit Öpik: None of the assurances that the Minister has given is anything more than reassuring words. There is nothing specific in what he has said to provide an insurance policy against the persistent use, on a case-by-case basis, of this greater power. Is there anything specific in the legislation, or is he planning anything on Report, that would provide a double lock—a security that is more than simply a hope that Secretaries of State continue to be benign?
Mr. Wright: Future Secretaries of State of a non-Labour Government would be able to change the legislation as they saw fit, but that is the case for all legislation. I am happy to work with the hon. Gentleman to make sure that we have a Labour Government indefinitely: that is in the best interests of the country. The argument does not hold up, because a future Secretary of State could override anything in the Bill.
As to reassurances, controls and locks, it would be a long process that would be considered extremely carefully. I reiterate, and I hope it does provide reassurance, that the Secretary of State is required to consult all local authorities that have an interest in the area. Following that consultation, the Secretary of State would consider whether there was a need to designate the area and, if so—this is very important—what functions to confer on the agency in relation to that area. As part of that, there would be a timing issue. The hon. Member for Poole asked whether designation would be time-limited. An example would be Milton Keynes, which is designated until 2016, and I imagine that similar situations would arise.
Sir George Young: I am grateful to the Minister for being as helpful as he can in trying to sketch the circumstances in which these powers might be used. He said that this was unlikely to happen frequently and would happen only on a case-by-case basis. Are there any areas at the moment where he is contemplating using these powers?
Mr. Wright: No, there are not. As I have said before, we need to be working in conjunction with local authorities to ensure that they have the skills and expertise—or that they are provided for them by the agency—to make sure that they can express their concerns, and that they the relevant infrastructure and development in order to achieve the ambition to have the relevant number of homes in their area.
To come to a blunt point, I would like Members to consider the opportunity cost of all this. It will involve an enormous amount of time, energy and effort on the part of the HCA. It will not be doing this on an everyday basis, because the opportunity cost of working in other areas will be tremendous. It will have to consider the scope of this measure. Given the massive investment in staffing resources and in making sure that everything is carried out in conjunction with the appropriate legislation, an enormous amount of time will be taken up within the agency, from senior management downwards. It is in the agency’s interests, frankly, to work with local authorities in the spirit of co-operation and partnership, rather than making sure they go down this route. In real-world terms, the opportunity cost issue is incredibly important.
We are not operating in a vacuum. All planning decisions are subject to planning laws and regulations on involvement, consultation and appeals, and national and regional planning policies on decisions. The HCA will not be riding roughshod over planning legislation, but will be operating within the local development framework. The case-by-case basis is the important point I want to push, as well as the opportunity cost. Members have asked the scale on which the designation orders will be given. I still think that this power will be used sparingly, and that there will need to be extremely compelling cases. It is very important that we consider in detail those particular controls. The Secretary of State must consult every local authority that could be within the designated area. We would expect to consult on the area to be designated, and the powers to be conferred on the agency where that power would be used.
Secondly, the designation order must be made by statutory instrument and would be subject to the negative resolution procedure in this House.
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Mr. Syms: Apart from consulting local authorities where the new planning authority would be, it is important to consult neighbouring authorities because what happens may have a knock-on effect. Someone may consult on an area of land across two east London boroughs, for example, but may not include in that consultation a third borough over the river, which may also be affected and may not wish the project to go ahead. There must be much wider consultation, or investment may be focused in one area while another is neglected.
Mr. Wright: I understand the hon. Gentleman’s sentiment. The issue would be dealt with by the provision stating that the Secretary of State would consult local authorities any part of which is included within the designated area. The area to be designated would also be considered as part of the broader concept.
The purpose of designating an area is to drive forward large and complex regeneration or development projects. There would be little point in doing that unless we equipped the agency with the requisite powers to plan for and take forward that development. Clause 14 provides the framework for doing so and we will discuss it later.
I hope that I have reassured hon. Members that the provision will be used sparingly because there will be an opportunity cost in terms of the agency’s resources. Many controls will lie with the Secretary of State and the House in considering matters, including those relating to local authorities and designated areas.
Amendment agreed to.
Amendment made: No. 21, in clause 13, page 6, line 15, at end insert ‘and
(d) Part 8 of the Planning Act 2008,’.—[Mr. Iain Wright.]
Clause 13, as amended, ordered to stand part of the Bill.
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