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.
12.30
pm
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?
In east London for example,
some boroughs are not that wealthy. If a particular corporation is
allowed to be the planning authority of an area, it would negotiate the
section 106 agreements. Who gets the cash? Could
it be remitted to the local authority for leisure,
recreation or other things, or would the money raised through section
106 agreements or by planning gain be spent specifically within the
geographical remit of the designation order? What would happen with any
moneys when the designation order ended, if there was an end date? If
the particular area designated is across two or three boroughs, what
arrangements will be made for some kind of financial sharing? Cash may
be generated that is necessary for schooling, leisure, recreation or
some other services within that area. 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?
Mr.
Wright:
All that I can do at the moment is look at the
facts of what is going on now. For example, more than 70 local
authorities have volunteered to work with us on growth in the first
round of new growth points,
and bids for a second round are now being considered. Taken together
with the growth areas, that means that some 200 local
authorities—half of all local authorities in England—will
be working with us on the growth agenda. The picture that the hon.
Member for North-East Bedfordshire paints of local authorities shutting
up shop and saying, “We do not want to hear any of this”
is simply not borne out by the evidence that we have seen on the
ground.
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?
Mr.
Wright:
The Secretary of State is required to consult all
local authorities who have an interest within the area that it is
proposed to designate. I suggest that this whole designation issue
would be a long way down the process and, as I have said before, I
think that it would emerge only in very rare circumstances. That
came out in oral evidence sessions in December. The one
example—there has been only one—that we have regarding
English Partnerships is the Milton Keynes issue. I imagine that this
situation will be extremely rare, and there would be a long process.
The duty will be taken extremely seriously, because we understand that
these are extremely wide powers. Only following consultation with local
authorities would the Secretary of State consider whether to designate
the area and, crucially, if the area is designated, decide which
functions to confer on the agency in relation to that
area.
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.
12.45
pm
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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