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My basic questions are: why do the Government think that this part of the schedule is needed, how often have such powers been used in living memory, and what are the Government’s intentions and expectations as to how often these powers might be required? Again, we have to ask ourselves: are they needed? I beg to move.

Lord Dixon-Smith: I have some sympathy with the noble Lord, Lord Greaves, but, more importantly, Part 3 of this schedule is more relevant to the Planning Bill which will come to this House, because this is really a planning matter and has nothing to do with the subject of this Bill, housing and regeneration. This is a serious part of this schedule relating to planning. I would like the Minister to consider very seriously whether it should be here at all, because it would be much more appropriate as part of the Planning Bill, which we know is coming here, although we do not quite know when.

Lord Bassam of Brighton: The amendment would remove the ability of the Secretary of State and the appropriate Minister to extend or modify a statutory undertaker’s functions. It may not be immediately obvious to the noble Lord and others what the power and the further clauses that he seeks to repeal are aimed at achieving, so I shall try to take him through that and provide an answer to his questions.

I am sure that noble Lords will be aware that statutory undertakers are a particular class of public body and that the term “statutory undertakers” derives from planning legislation—the noble Lord, Lord Dixon-Smith, made that point. They include, as an example, persons authorised to carry on any

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railway, light railway, tram system or network, road or water transport, aviation, or gas, water and electricity services. They are therefore fairly fundamental.

Statutory undertakers have as a consequence special status in legislation and—as the noble Lord, Lord Greaves, will appreciate—particular rights to go with their responsibilities. Noble Lords will notice that these bodies, because of their nature, are likely to have duties to own, or have rights over, land in particular locations or to place what is technically called “apparatus” on land belonging to others. The schedule seeks to cater for situations arising from that need. For example, Part 2 applies where apparatus of a statutory undertaker is situated on, under or over land of the Homes and Communities Agency and the statutory undertaker needs to remove or re-site that apparatus because of a development.

In a similar vein, Part 3 of Schedule 2 gives statutory undertakers a right to make representations to the Secretary of State and the appropriate Minister to enable them to continue providing services on land which has been acquired by the HCA that would otherwise not be provided or satisfactorily provided. The statutory undertaker can make representations to the Secretary of State and the relevant Minister to have its functions modified to secure the provision of its services, so that, for example, it may enter that land to continue to carry out those functions.

Equally, Part 3 of Schedule 2 gives a right to the Homes and Communities Agency to make representations to modify the functions of a statutory undertaker so as to secure the provision of new services, or perhaps the extension of existing services, in relation to such land.

The other paragraphs that the noble Lord wishes to strike out set the notification and objection-making procedures that must be followed before an order of this nature can be made. It is perhaps worth adding that the power to make an order under paragraphs 16 and 17 of the schedule are subject to special parliamentary procedure, so the degree of analysis of the issues should not be underestimated before an order can be made.

These powers are not about giving statutory undertakers greater or wider powers; rather, they should be seen as ensuring that this class of body continues to provide the functions that it is meant to provide—for example, railways, water and access to other services.

The provisions are modelled on those contained in the Leasehold Reform, Housing and Urban Development Act 1993, which governed the relationship between the Urban Regeneration Agency—now English Partnerships—and statutory undertakers, as well as on the Town and Country Planning Act 1997. I say in response to the noble Lord that the powers are rarely used. Their function is to provide an incentive for developers and statutory undertakers to reach agreement where the activities of one come into contact with the other. There is interdependency in many instances. Removal of the powers would remove the incentive to

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sort and make sure that arrangements are put in place. If we were to take away the powers, I suspect that one might see lengthy and costly delays in resolving important development issues.

I therefore caution against removing these parts of the legislation because they have a value, even though I admit that the powers will not need to be used with great regularity. They ensure a degree of certainty that statutory undertakers will be required to continue to provide their functions and that there is no loss of service. I am sure the noble Lord will appreciate that that is important to all concerned if developments are to work.

5.30 pm

Viscount Eccles: If the HCA and the statutory undertaker come to an agreement, then there is no need to involve the Secretary of State in either of these sections. What would be the present situation if the HCA and the statutory undertaker did not come to an agreement? How would they now resolve the matter? Can they go for a court order? What would they do now? Is the Secretary of State needed to intervene in this? The worry that I have is that as you pile responsibilities on the HCA—of course, always leaving the door open for the Secretary of State to intervene directly—the top-down nature of the Bill is becoming clearer and clearer.

We shall come to some later amendments but perhaps I may go back a step to footpaths. I remember very well that when the right-to-roam Act was passed we were promised a strengthening of the footpath system. This Bill does not go to the aspect of what has been promised in the past in any way at all. Time after time, as we discuss these amendments, we are setting up local disputes of a serious nature, and any time the people involved in a local dispute get the feeling that it will be settled by the Secretary of State, that dispute will get worse and continue for longer.

Lord Dixon-Smith: My noble friend Lord Eccles is right. I have been trying to work out whether this part of the Bill puts the Homes and Communities Agency either in a privileged or disadvantaged position. For the life of me, I cannot decide which way round my judgment goes. In one sense, one should perhaps say the same thing about the statutory undertaker. If a statutory undertaker has a difficulty with the Homes and Communities Agency over a particular scheme, then, unlike the rest of the world where they would have to come to an accommodation, the statutory undertaker can come to the Secretary of State and say, “Please, Minister, will you redraft our remit so that we can get over this difficulty?”. That would put the statutory undertaker in a privileged position but it would put the Homes and Communities Agency at a disadvantage. The other side of that, of course, is that if there is a problem the Homes and Communities Agency can go to the statutory undertaker and say, “Look, if you rewrite their powers then we can get over this difficulty”. It is quite difficult. That is why I think this planning legislation has no business in here at all.

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Lord Bassam of Brighton: I beg to differ. The noble Lord’s own party put this in place when it passed the Leasehold Reform, Housing and Urban Development Act 1993. I am sure regeneration issues were in the minds of the legislators at the time because it governed the relationship between the Urban Regeneration Agency—English Partnerships—and statutory undertakers. So I think the legislation is in the right place.

I made the point that this was about ensuring that a solution is found where there are difficulties and a situation is not able to be resolved as one would expect. As we all know, during planning arrangements at a local level you expect the developer and the owner of the land to sensibly sit round a table and resolve these matters. But sometimes that is not possible, and this part of the Bill provides an element of certainty that the parties can make representations to the Secretary of State to modify the functions of a statutory undertaker so as to secure the provision of services, or to extend existing services, in relation to land. That is what the legislation is designed to do. The fact that it is not much used does not necessarily detract from its value because, as I said, it puts the onus on the statutory undertaker and developer to come to an agreement or a reasonable arrangement so that these essential services can be put in place.

Lord Dixon-Smith: I do not know what the noble Lord, Lord Greaves, is going to say but I think that the noble Lord, Lord Bassam, has just said that this creates a “situation of privilege”. If the statutory undertaker and the Homes and Communities Agency do not agree, there is a legal way out, but presumably that would not be possible for anyone else in the country. Would a change in the regulations which apply to a statutory undertaker dealing with the Homes and Communities Agency subsequently be available for the statutory undertaker to use elsewhere? That would be a fairly covert way of extending the remit. I go back to what I said: I think that it is inappropriate here.

Lord Bassam of Brighton: I think that the noble Lord needs to look at the matter in this way. Clearly, development issues are sensibly resolved through negotiation, and, in essence, that is all that this provision attempts to achieve. We are not seeking to put any additional draconian or excessive powers in place any more than was the case back in 1993. The arrangements appear to have worked very satisfactorily for English Partnerships and in the wider public interest, and that is what we are trying to achieve through this legislation. We are not seeking to do anything new; we are not seeking to achieve anything that has not already been put in place and achieved in terms of regeneration. This is probably a sensible provision which enables a lot of difficult situations to be sensibly resolved over time.

It may be worth emphasising that these provisions apply only to land that the Homes and Communities Agency owns. I do not think that one can say that it privileges the agency in any respect; it is only in relation to its own land that these provisions work.

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Lord Greaves: That is an interesting question. This issue will not be resolved today; we shall have to go away and think about it. I am glad that the noble Lord, Lord Brooke, has appeared, because yesterday he entertained us with stories of Alice in Wonderland and Lewis Carroll in relation to Otmoor. The more I think about it, the more I think that this is Alice in Wonderland territory. I had a vision of the Secretary of State as the Red Queen, but I thought that perhaps that was not fair and so would not pursue it.

The Minister has just stated that this provision applies only to land owned by the Homes and Communities Agency. If the HCA wants to transfer land to a statutory undertaker, it can do so voluntarily, but if a compulsory purchase by the statutory undertaker can be done only if the HCA asks for it, then it is not required to be done in relation to its own land. However, unless I have totally misunderstood it, paragraph 18 gives powers to statutory undertakers to acquire land compulsorily. That seems extraordinary. I wonder whether this legislation is not rather old fashioned and outdated. Although Ministers keep telling us that it is based on the Leasehold Reform, Housing and Urban Development Act 1993, I suggest that the provisions in that Act have probably been rolled forward from earlier Acts and may go back as far as 1946.

Lord Bassam of Brighton: Can I ask the noble Lord a question and make a point? I can see that he has become quite exercised by this. I have tried to explain to him in clear terms how minor issues that come up during development can sometimes be resolved through this process. It is not used greatly. I suggest that we write to the Committee, saying explicitly what the legislation does, how it replicates previous legislation and how that has worked, and giving some examples—a worked example, if we can find one—of how it will beneficially enable development to continue in an orderly process without treading on anyone’s toes and causing general upset and mayhem. There is nothing sinister here. This is a benign piece of legislation, put there simply to ensure that development can move forward in an orderly way.

Lord Greaves: The Minister has taken the words out of my own mouth. I was going to suggest exactly that, and I am grateful to him for the offer. The legislation may be benign or redundant—or otiose, as people sometimes call it in this House. In other words, it is not required. The Minister kept saying “rarely used”. I wonder if that is a euphemism for “never used”. I do not know. If that is the case, we do not need it. This is the point I was making previously about burial grounds: putting legislation on the statute book that is not required is bad practice and bad law, and we should not be doing it.

I suspect that when this legislation was first put on the statute book, the statutory undertakers were all nationalised industries or government bodies.

Lord Bassam of Brighton: Not in 1993.

Lord Greaves: I am suggesting that 1993 was a roll-forward from previous legislation. If I am wrong about that, I would be delighted to know. I suspect that this legislation goes right back to the 1940s and

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1950s. That is my guess. Now the statutory undertakers are almost all private companies. Why should a private company that happens to supply water, electricity or gas—and there might be several of them in an area competing with each other—be in a privileged position, in the words of the noble Lord, Lord Dixon-Smith, compared with other private companies? For example—and I am sorry to talk about where I live—Tesco is trying to get planning permission for a new supermarket in Colne, where I live. Without discussing that application, which we will have to resolve and determine tomorrow night, one of the things Tesco has problems with is that it does not own the land. The land is in several different parcels, and Tesco has requested the local authority to compulsorily purchase that land. That is the way a private company goes about trying to assemble land that it cannot assemble; it tries to persuade the local authority that it is a good idea and that authority will then compulsorily purchase it.

Why is it necessary to give compulsory purchase powers to private companies just because they happen to be providing people with electricity or with a tramway? Why can the compulsory purchase not be done in the normal way by a public authority, at whatever level? That is the fundamental question that lies beneath this. I look forward to the correspondence.

Lord Brooke of Sutton Mandeville: There is a moment in the Mad Hatter’s tea party where Alice is offered some more tea and she says, “As I haven’t had any tea already, there is no way in which I can get more tea”. Is the Minister promising to send correspondence to everyone who is participating in the Committee, or simply to those who are taking part in this amendment?

Lord Bassam of Brighton: The noble Lord qualifies on both grounds.

5.45 pm

Viscount Eccles: There have been a few occasions in this Committee when things have been modelled on previous legislation. There are some dangers. One is that you can cherry-pick between the various different predecessor Acts to find the bit that suits you best in the circumstances. The other danger is that modelling is modelling, not repeating. So far I have spotted at least two occasions, possibly three, where what is in this Bill is not the same. You could loosely describe it as modelled, but only with a stretch of the imagination. Such exchanges should be analytical, in the sense that they direct us. One such provision we had yesterday was Section 160 in the 1993 Act. It is completely different from what is in the Bill. Yes, it may be called modelled, but it is not the same.

Lord Bassam of Brighton: That is a fair point. When we try to demonstrate that there are no hidden add-ons, we will look at how both pieces of legislation work and provide the noble Lord with the examples.

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Lord Greaves: I hope that this correspondence will go to the whole Committee because it is on some fascinating stuff. I look forward to the correspondence and to an historical account of when this particular provision has been used within living memory. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Clause 13 [Power of Secretary of State to make designation orders]:

Baroness Hamwee moved Amendment No. 67:

The noble Baroness said: In moving Amendment No. 67, for the record I will say that I am speaking also to a number of my amendments, and that in the group are two government amendments and one from the noble Lord, Lord Dixon-Smith. They are Amendments Nos. 68, 68C, 69 and 70, government Amendment No. 71, my Amendment No. 71A, government Amendment No. 72, my Amendments Nos. 73 and 73A, Clause 13 stand part, Amendments Nos. 73B to 73F, Clause 14 stand part, and Amendments Nos. 116B and 117A. The provisions we have just been discussing may or may not be benign. I regard Clauses 13 and 14 as malign. That might be a little harsh, but not very.

I start by making clear that in our opposition to the provisions in these clauses these Benches are not anti-development. I do not want what we have to say to be read that way. Nor do I want what I have to say to be regarded as being particularly against eco-towns—not that I intend to mention eco-towns, but they do seem to arise in this context. I am very concerned indeed about the proposed planning powers going to the Homes and Communities Agency.

I am surprised that the Conservatives’ amendment is relatively benign—very benign, actually—but we will no doubt hear from the noble Lord on that. At a meeting organised by a number of those concerned, which the noble Lord, Lord Bassam, attended, he commented on there being guidance about how these powers are to be exercised. I have to say that we are seeking a change in the “what”, not just assurances about the “how”.

I read these clauses as being anti-devolutionary, anti-democratic and something of a paradox. When they were debated in the Commons a lot of assurances were given about consulting local authorities before an order is made. Clause 13(5)(a) refers to consulting a local authority whose area is intended to be included in a proposed designated area, but if as much regard is to be paid to the local authority as we have been led to believe by the debate in the Commons, then, by definition, there should be no need for the clauses. If the consultation is going to take on board what a local authority has to say, why do we need provisions which allow an overriding of the local authority’s position?

In the debate in Committee in the Commons, the Minister, Iain Wright, referred to ensuring that local authorities are,

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“Doing what we say” is the only thing that that can mean. He then referred to some local authorities needing “help and support” in facing the regeneration challenge. He also referred to,

I find that curious language. The provisions are about taking away the powers that democratically elected local authorities have in the planning arena. If this is to be a mechanism to enable cross-boundary working, the clause is not necessary. I have heard it suggested that this would help local authorities to get together to deal with issues about land which crosses local authority boundaries, but in London the so-called Olympic boroughs got together and agreed how to take forward some very complicated applications without it. By all accounts, they have done so in an efficient and effective manner. Noble Lords have been declaring all kinds of interests and I shall declare that the mother of the wonderful young woman who was my PA at the London Assembly—I miss her greatly—led that process. The rather avuncular term is that it would allow us to help the authorities to work together, but it can be done without this provision.

Most of my amendments are in fundamental opposition to these provisions. However, within the group I have some which may be regarded as a tweaking. I would not be content with that but I include them in order to probe some particular points. The cross-boundary issue is dealt with in Amendments Nos. 67, 68 and 73. Amendment No. 68C deals with the terminology in condition 1 of the conditions that have to be met before the Secretary of State will make a designation order. Condition 1 is that it is “appropriate” for the HCA to be the local planning authority. What does “appropriate” mean in this context? It is a term which relates to a matter of judgment and some people will consider that something is “appropriate” depending on where they start from in their assessment of a situation. It is a difficult term.

Amendment No. 71A would take the plan-making function out of the “permitted purposes”. I came rather late to the realisation that it is intended that the HCA will have not just development control powers but plan-making powers, and that worries me greatly. As I said, local authorities are elected democratically; we are all familiar with how they operate.

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