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My amendment would simply adopt one of the well established procedures in Schedule 14 to the Town and Country Planning Act 1990. The Government may not wish to do that, but if they do not wish merely to re-enact existing legislation, they have to tell us what the changes are and why they are being made. If they are re-enacting existing legislation, why is it not being changed in response to changed circumstances? They are two sides of the same coin. It is a probing amendment.

Baroness Whitaker: I share the concern of the noble Baroness, Lady Miller, and the noble Lord, Lord Greaves, about the preservation of the footpaths. I suppose that I ought to declare an interest as somebody who often is active and occasionally battles to keep local footpaths clear—indeed, probably some of the same ones that my noble friend the Minister also walks on. I have to say that on these occasions it is a great comfort to be able to refer to existing procedures, which people, once reminded of them, do fall in with. I think that our footpaths are a very important feature of British rural life. They are enjoyed by many people. The rights to open them were dearly won, as those with long memories will recall, and we should cherish them.

Baroness Andrews: I am grateful to my noble friend Lady Whitaker for identifying an interest that I should declare: hacking my way through quite a lot of footpaths in parishes that shall remain nameless. The quality of footpaths varies enormously within counties, and in another life I would be much more militant about that than I am at the moment. I take these amendments seriously.

I hope I can bring comfort to both noble Lords. The noble Baroness’s amendment asks the blunt question, “Have we got it right?”—that is, has what we have done in the Bill established the right balance? First of all—and this reflects what the noble Lord, Lord Greaves, said—the powers in this part of the Bill are not new. They are closely modelled on the powers contained in paragraph 9 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993 for the Urban Regeneration Agency. I say “closely modelled” because—again, I hope I can address the question of the noble Lord, Lord Greaves—we have strengthened the power in favour of the many people who use public rights of way. In response to debates in the other place, we laid an amendment that made it a requirement that if the HCA wanted a public right of way extinguished, it would have to offer a replacement right of way or show that such an alternative was not required. Part 2 of Schedule 3 and Clause 3 make that clear. That alternative right of way has to be offered, whether or not it has gone to public inquiry. That demonstrates how much we value the protection that we can offer public rights of way.

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I stress also that it is for the Secretary of State to extinguish the right of way, not for the HCA. If the Secretary of State were asked to exercise such a power I know she would do so with a great deal of consideration and diligence, not least because the decision would be subject to judicial review.

The import of the amendment—which is essentially an opportunity to have this sort of debate, but I have to address the implications—would effectively mean that the HCA was hampered in regenerating or developing any land that was crossed by a public right of way. It would also mean that there was no statutory way for the HCA to deal with, for example, any electronic communications equipment that may be on land of this type. Part 2 of Schedule 3 allows for that to happen, but only after the Secretary of State has exercised the power to make an order under paragraph 3. I hope that will deal with the thrust of the amendment tabled by the noble Baroness.

I turn to the issues raised by the noble Lord. Regarding Amendment No. 63, it is important that I point out that there is a distinction between the Town and Country Planning Act and the Bill. The questions he raised about the role of local authorities are reflected in that difference. As I read the amendment, it appeared intended to ensure that the same procedure was followed for the extinguishment of public rights of way over land owned by the HCA as for land held by local authorities for planning purposes under the Town and Country Planning Act 1990. My assumption was that the noble Lord considered that the TCP Act 1990 contains an established procedure for extinguishing public rights of way and that that procedure should apply in the case of public rights of way over land owned by the HCA. I shall explain the difference between the two and then answer his question about what has been updated.

The procedures are in many ways extremely similar. In particular, Schedule 14 to the Town and Country Planning Act 1990 and Part 2 of Schedule 3 to the Bill provide for notice of the order to be published and served and for a public local inquiry to be held in certain circumstances. The procedures are not identical but they are similar. In both cases the local authority or the Secretary of State must be satisfied that an alternative right of way has been or will be provided, or that the provision of an alternative right of way is not required. That is the important safeguard. Essentially, the key difference is the question of who has the power to make the order extinguishing the public right of way. Section 258 of the Town and Country Planning Act gives a local authority the power to make the order to extinguish a public right of way over land which is held by that local authority for “planning purposes”. The local authority may make the order itself if the order is unopposed but it must be confirmed by the Secretary of State if it is opposed.

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Under the provisions at Part 2 of Schedule 3, only the Secretary of State has the power to extinguish a public right of way over land which is owned by the HCA. That is a very important and necessary difference.

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The intention of the amendment seems to be to give the HCA a greater role in the process. In fact, the Bill removes the HCA’s involvement and strengthens the process by giving the responsibility for publishing the notice, considering objections and, importantly, making a final decision to the Secretary of State. That is right and proper because these are very serious issues and we think that that responsibility should reside with the Secretary of State. It is the same procedure that applied to the Urban Regeneration Agency in the Leasehold Reform, Housing and Urban Development Act 1993 and for urban development corporations, so we have not invented a new procedure; we are taking over the powers that previously existed in that respect.

The noble Lord’s final amendment, Amendment No. 64, worries me slightly because it seems to remove some of the discretion that the Secretary of State had when making a decision to extinguish a public right of way. As I understood it, the noble Lord said that there should always be a public inquiry and that the Secretary of State should not have the discretion not to hold a public inquiry. I argue that that is a necessary discretion to have when there are no objections, because going through the burden of a public inquiry is a major challenge for everyone, not just for a local authority. It involves cost, as well as a time cost. Therefore, I do not think that that is a good way forward.

The problem is that the amendment would mean that the Secretary of State could make a decision to remove a right of way without further investigation only if further information had been requested from an objector but it had not been provided within the required period. Slightly perversely, it would remove the Secretary of State’s ability to consider evidence already provided and make a decision if it was considered that all the necessary information had been provided on which to make an informed and reasonable decision. That takes me back to the bigger point that the Secretary of State must be allowed to act on the information that is available and to make an appropriate decision. Clearly, the ability to extinguish public rights of way will be important for the agency. If it were unable to do so, that could prevent it developing as we would all wish. The provision to require the HCA to provide an alternative right of way or demonstrate that it was not required should result in an overall neutral effect, but that is for the Secretary of State to consider when she is reaching her decision.

These decisions are often not easy to make; indeed, they are often quite complex. In the information that is provided, there is a lot of history about public rights of way and ownership and so on. Therefore, it is necessary that the Secretary of State should have that information and, certainly when there is no challenge, be able to move to a decision without going via a public inquiry.

Finally, the provision as drafted is very similar to that to which the URA is now subject. Therefore, essentially it is something that we are carrying forward rather than amending or diluting. The interrelationship between the Bill and the procedures is slightly complex, but I hope that my explanation has been sufficiently clear to enable the noble Baroness to withdraw her amendment.

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Lord Greaves: I am grateful for that detailed reply. I am not sure that I understood all of it straightaway, but I shall certainly read it carefully and add to my homework on the train tomorrow. If my drafting of the amendment was inadequate, I am duly admonished by the Minister; it performed its purpose of raising the issue and of establishing the basis of the argument. It is not my intention at all to suggest that unopposed orders should require a public inquiry; that would clearly be nonsense. It is my intention to suggest that orders which have objections to them should require a public inquiry in exactly the same way that is required for highways authority proposals. That is the difference and we will want to look at this matter further and perhaps have some correspondence about it. I will take further advice from people who are far more expert than I am in these areas.

Baroness Miller of Chilthorne Domer: I completely concur with my noble friend. There is a strong parallel between the way that a local authority would act if it was trying to do something on its land and the way that the Government are approaching this when their quango is doing something. That is how I see it and that is how the public see it. The points that my noble friend has made are quite right and I look forward to correspondence on that matter being copied to me. Perhaps this is a precursor to our discussion on Clause 14 and, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 63 and 64 not moved.]

Lord Greaves moved Amendment No. 64A:

The noble Lord said: This is a probing amendment, as noble Lords might imagine. It refers to Part 3 of Schedule 3, entitled “Powers in relation to burial grounds and consecrated land etc.”. Part 3 provides the HCA with powers to use any “land of the HCA”—which I presume means land that it owns, although I would like some clarification, because it would be important in relation to later amendments—

The schedule proposes that:

and so on. It seems draconian that the HCA can take over burial grounds and ignore all the other rules, regulations, laws of the land and ecclesiastical laws which everyone else who owns a burial ground has to comply with. I would be grateful if the Minister would explain why these powers are required and under what circumstances she envisages them being operated outside existing powers to use burial grounds for other purposes, whereby one has to go through a long and complicated procedure. Why should the HCA be exempt from that? I beg to move.

Lord Dixon-Smith: One way of avoiding this problem would be if the Homes and Communities Agency simply did not purchase burial grounds. Then

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we would not have this difficulty. Of course, the Minister may be able to explain why the Homes and Communities Agency must purchase burial grounds, although, for the life of me, I cannot think of a reason. The same argument could be reasonably applied to consecrated ground. I accept that there is a possible issue regarding town and community design when one is dealing with very large developments, but I would have thought that that would be exceedingly rare, and the actual “need” to purchase this land would have to be proved before such a situation arose.

Baroness Ford: The only circumstances in which the HCA might find itself in possession of a burial ground are because it would inherit it as a transfer of surplus land, for example. Certainly, over the past five or six years very strange pieces of land came into the possession of English Partnerships. I cannot recall a burial ground ever coming in but I recall a phone call one day when we inherited land near Chester Zoo, when one of my officials was very perplexed to find that he had dug up a giraffe with anthrax. That was without a doubt the most exotic thing that ever happened to us. But I can foresee circumstances in which the HCA might inherit a burial ground or part of one that might have been annexed to an old hospital or some other institution that came into its possession.

Baroness Andrews: I am grateful for the opportunity to put this on the record and particularly grateful for that last contribution from my noble friend, which reinforces the unique nature of the situation and why we have the provision in the Bill at all.

I start by saying to the noble Lord, Lord Greaves, that “land of the HCA”—it is a wonderfully ringing title, is it not?—means land that the HCA owns. He is quite right about that.

I know that the issue of burial grounds and consecrated land is very emotive and we are all agreed around the Committee that we must be very careful that we treat such land in a sensitive and considerate manner. I am sure that the deceased giraffe was treated with great respect when English Partnerships uncovered its haul. This amendment would hinder our ability to do that.

It goes without saying that it has never been the intention of English Partnerships to target land of this nature for regeneration or development. It would certainly not be the intention of the HCA, to reinforce the point that the noble Lord, Lord Dixon-Smith, made. As the noble Baroness said, it might well have come down through transfer of surplus land, and the example that she gave of the hospital was a useful one, because that would be very possible.

If land were ever to come into this category as part of a critical element of a larger regeneration scheme, and strategic to it, any such land would almost certainly be disused and historic. We might be talking about, for example, a medieval plague pit or an Iron Age burial site, which have great historical significance, must be treated with great care and would come under a lot of other protections.

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We will make regulations that will contain comprehensive procedures to deal with the issues raised when human remains are encountered or consecrated land is involved. We are taking the opportunity in the Bill to do that. The procedures in the regulations must be no less stringent than any provisions disapplied and, of course, the use of the land must be in accordance with planning permission. That goes without saying. We are in discussions with the Ministry of Justice over the content and nature of the prescribed requirements and will consult on them in due course. The paragraphs as drafted are modelled on those in the Leasehold Reform, Housing and Urban Development Act 1993 and the Town and Country Planning Act 1990.

I would be pleased to report to the Chamber on the progress that we make with those regulations. If I accepted the amendment, that condition would occasionally, though not significantly, hold up important developments. But we will have the regulations and bring them forward.

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Lord Greaves: I am grateful for the Minister’s comments. She tells us that the provisions here are modelled on previous Acts, the TCPA 1990 and the Leasehold Reform, Housing and Urban Development Act 1993. She may not be able to tell us now, but how many times have those provisions been used during the past 18 or 15 years? I do not know whether anybody knows that but it is an important question. We have been told by the noble Baroness, Lady Ford, that the only thing that she can remember in that regard is a giraffe with anthrax. I do not think that that applies to burial grounds, in this sense. It would be interesting to know the answer. It is easy to churn over existing legislation that was made for a previous era and previous circumstances, under a very different planning regime, and to re-enact it on the off-chance that it may be required.

Baroness Andrews: I can answer the noble Lord’s question; that is very surprising, I know. The prescribed requirements that would have enabled the URA to make full use of the powers which it was granted by the 1993 Act were never made. This means that, had the URA wished to move any human remains, it would have had to rely on the provisions in the Burial Act 1857, which would have required it to obtain a faculty or licence from a bishop or a licence from the Secretary of State. We do not centrally hold records regarding these, so are unable to say whether any has ever been sought or received. That has not taken us a long way forward, but perhaps it gives us a bit of colourful background to why we cannot answer the question.

Lord Dixon-Smith: That begs another question. If it was not necessary to make the regulations then, is it actually necessary to make them now, or these changes?

Baroness Andrews: In the spirit of the Government wanting to be secure and safe and to make provision as and when it might arrive, we should probably carry on with them.

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Lord Greaves: It is not the Government who might want to make this provision but the HCA, which is a large national quango. The Government keep telling us that it is not the Government but whatever it is described as—an agency that is at arm’s length, at least, from the Government. The basic point that I was making was to ask why the powers that the HCA has in issues such as these should be different from the powers that other public bodies have under other existing legislation. Why is it necessary to create special legislation just for the HCA? The answer is that it is what some previous agencies had under previous Acts, but now we have been told that those regulations were never made—so why are we being provided with pages 162 and 163 and two-thirds of page 164 in this legislation, which could just be scrubbed out as not needed?

If the HCA requires this, why should it not have to go through exactly the same procedures that a county council, a borough council or any other body has to go through? That is the fundamental question that I ask. Okay, so that comes from a slight scepticism on my part about large national agencies and, if they are necessary, the need to keep them constrained in what they can do so that they do not have powers that lots of other bodies do not have. It is all to do with the rights of people to object, and so on.

The fundamental point was raised by the noble Lord, Lord Dixon-Smith. If these regulations have not been required for the past 15 years, why are they required now? The Minister tells us that they are required because something might happen—but the truth is that if these provisions had not happened in some historic legislation, the Government would not now put them in this Bill. It is just because they can recycle them and roll them forward that they are being put in here. That comes back to the point that I made about rights of way. When this recycling of historic legislation goes forward, we should really ask whether it is still needed in this day and age. If I were on a jury listening to this discussion, I might say that it was not required now. I might say that because that is what my amendment is saying, but my amendment was probing and I am strengthened in my view.

We will ponder further about these things, but I hope that the Government will do so, too. There is no point in putting legislation on the statute book just for the point of it. There is already far too much legislation and, if we could get rid of some of it, that would be wonderful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 65 and 66 not moved.]

Schedule 3 agreed to.

Clause 12 agreed to.

Schedule 4 [Powers in relation to, and for, statutory undertakers]:

Lord Greaves moved Amendment No. 66A:

The noble Lord said: I shall be brief because my questions are similar to those I have asked previously. Part 3 of Schedule 4 gives substantial powers to

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statutory undertakers following representations by them and the HCA to the Secretary of State. For example, paragraph 18 gives statutory undertakers powers,

and so on.

On the face of it, this is draconian stuff which gives statutory undertakers the power to acquire land by compulsory purchase, for example. Why is this needed? How often has this power been used in the most recent period that the Government have figures for? No doubt they will tell us that this is just re-enacting legislation from 1993, 1990 or before then—perhaps going back to the New Towns Act 1946. Is such power needed now? In particular, on a lot of these matters we have to understand that the planning regime has changed enormously in the past 50 years. The Town and Country Planning Act 1947 very much filled a vacuum. In the past 60 years the planning system has developed and is now very comprehensive—some would say it was all embracing—and all sorts of plans exist at national, regional and local levels, and at county level in two-tier areas. Then there is all the planning guidance and planning statements and so on. The planning system was not so comprehensive in those days, yet all this old legislation is being re-enacted although it was designed for different circumstances in different times.

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