Twenty Fourth Report Contents

Levelling-up and Regeneration Bill

1.This Bill was passed by the House of Commons on 13 December 2022. It was introduced in the House of Lords on 19 December 2022 and had its Second Reading on 17 January 2023.

2.According to the Explanatory Notes to the Bill—

“The Levelling-up and Regeneration Bill supports the Government’s manifesto commitment to level up the United Kingdom. The Government’s objective is to reduce geographical disparities between different parts of the United Kingdom by spreading opportunity more equally”.1

3.The Bill contains 13 Parts and 18 Schedules. It deals with a range of topics including planning, combined county authorities, an Infrastructure Levy, community land auction pilots, environmental outcomes reports, nutrient pollution standards, development corporations, compulsory purchase, letting by local authorities of vacant high-street premises and information about interests and dealings in land.

4.The Department for Levelling Up, Housing and Communities has provided a Delegated Powers Memorandum (“the Memorandum”)2 for the Bill.

5.We draw the following powers to the attention of the House.

Clause 11—power to make provision about members of combined county authorities

6.Part 2 of the Bill establishes a new local government structure known as a combined county authority. A combined county authority (CCA) is an authority which exercises functions in respect of the combined area of at least one two-tier county council and one or more other such councils or unitary county or district councils. The provisions of Part 2 concerning CCAs substantially replicate the provisions for combined authorities in Part 6 of the Local Democracy, Economic Development and Construction Act 2009 (“the 2009 Act”).

7.Clause 11 confers a power to make regulations about all types of members of a CCA, the mayor of a CCA and the nominating bodies of a CCA. Regulations under clause 11 are subject to the affirmative resolution procedure for the first exercise of the power, with the negative resolution procedure applying to subsequent exercises.3 No explanation is given in the Memorandum for adopting this approach. The assumption made in the Memorandum is that the affirmative procedure will apply to all exercises of the power.4 In this regard, the Memorandum notes that providing for the affirmative procedure to apply is consistent with the level of scrutiny which applies to regulations under clause 8 which also confer powers to make provision about membership, and which are also subject to the affirmative procedure in respect of all exercises of the power. We agree that the affirmative procedure offers an appropriate level of scrutiny for regulations relating to the membership of CCAs. It is difficult to make sense of a proposal requiring the affirmative procedure to apply only to the first exercise of the power. It seems likely that the power will be exercised separately for different CCAs. That being so, there does not appear to be any reason for providing for the affirmative procedure to apply only to the regulations relating to the particular CCA which happens to be the first one in respect of which the power is exercised.

8.Accordingly, we consider that the affirmative resolution procedure should apply to all regulations made under clause 11.

Clause 61—power to make regulations about the constitution of combined authorities

9.As well as providing for the establishment of CCAs, Part 2 also amends the provisions of the 2009 Act in relation to combined authorities. Clause 61 makes changes to the provisions dealing with the constitution of combined authorities, including providing for two new categories of member: a non-constituent member appointed by a designated nominating body, and an associate member appointed by the combined authority itself. The changes relating to the constitution of combined authorities are achieved by inserting new sections 104A to 104C into the 2009 Act.

10.Section 104C(1) confers a power which is equivalent to that conferred by clause 11 in relation to CCAs. Section 104C(4) contains additional regulation making powers which allow the Secretary of State to provide for the new provisions relating to non-constituent members and associate members not to apply to a combined authority which already exists before the new provisions come into force.

11.As with clause 11, regulations under section 104C are subject to a first-time affirmative procedure.5 Again, the Memorandum assumes that the affirmative procedure will apply to all exercises of the powers, with the stated reason being the fact that the same procedure applies to the existing order making powers in the 2009 Act relating to membership of combined authorities.6

12.In the circumstances, we consider that the affirmative resolution procedure should apply to all exercises of the powers conferred by new section 104C of the 2009 Act.

Clauses 75 and 76—power to issue guidance with respect to council tax chargeable for long-term empty and periodically occupied dwellings

13.Clauses 75 and 76 amend the provisions of the Local Government Finance Act 1992 (“the 1992 Act”) which make provision for discounts from council tax for unoccupied dwellings.

14.As things stand, section 11(2)(a) of the 1992 Act provides for a dwelling to be subject to a discount from council tax for a day if there is no person who is a resident of the dwelling on that day. This is subject to section 11B which applies to long-term empty dwellings. Section 11B confers a discretion on the billing authority so it can decide that the discount under section 11(2)(a) should not apply, but instead the amount of council tax should be increased by an amount which does not exceed the relevant maximum. The amount of the relevant maximum varies depending on the period for which the dwelling has been left unoccupied.

15.Clause 75 amends section 11B in two ways:

16.Clause 76 inserts a new section 11C into the 1992 Act. That section operates in a similar way to section 11B but applies instead to dwellings occupied periodically while being substantially furnished. Under section 11C, the billing authority can make a determination in relation to such dwellings that the discount under section 11(2)(a) is to be disapplied for any day on which there is no resident, and instead that it should be subject to an increased amount of council tax for that day, with the increase not exceeding 100%. As with section 11B, section 11C(4) requires a billing authority to have regard to guidance given by the Secretary of State in exercising its functions under the section.

17.We have in the past made clear the need for guidance to be subject to parliamentary scrutiny, where there is a duty on authorities to have regard to the guidance in exercising statutory functions.7 We consider this is particularly likely to be the case where:

18.Sections 11B and 11C leave it entirely to the local authorities concerned to decide whether or not to use the powers conferred by those sections to charge a council tax premium on long-term empty dwellings and periodically occupied dwellings. They also leave it entirely to the discretion of the local authority to decide the extent of the increase to be charged, subject to the statutory maximum. There is nothing on the face of the provisions to indicate the matters to be taken into account by local authorities in deciding these issues, and it seems reasonable to assume that this void will in practice be filled by the guidance issued by the Secretary of State. As such the guidance is liable to have a significant impact on the way in which the powers are exercised by local authorities. Accordingly, we consider that guidance under sections 11B and 11C should be subject to parliamentary scrutiny, with the draft negative procedure offering an appropriate level of scrutiny.

Clause 99—amendments to the Town and Country Planning Act 1990: street vote development orders

19.Clause 99 inserts new sections into the Town and Country Planning Act 1990 to create a planning consent regime under which residents will be able to propose development in their “street area”8 and, subject to the proposal meeting certain requirements, to vote on whether that development should be given planning permission. According to the Explanatory Notes to the Bill, “This is intended to encourage residents to consider the potential for additional development on their streets, and support a gentle increase in densities, in particular, in areas where additional new homes are needed”.9

20.In paragraphs 21 to 57 below, we draw the attention of the House to seven separate regulation-making powers relating to street votes. A common thread runs through them all: in each case, we consider that the power relates to matters that are too significant in policy terms to be left to be determined by regulations. Yet five of the seven powers are subject only to negative procedure scrutiny, with the Memorandum claiming that they relate only to matters of administrative, procedural or technical detail.

Clause 99—new section 61QC(3) of the Town and Country Planning Act 1990: power to amend the list in the Bill of areas (“excluded areas”) to which a street vote development order cannot apply

21.Under the new regime, planning permission may be granted in relation to a “street area” by a “street vote development order” (“SVDO”) made by the Secretary of State.10 The Secretary of State is required to make regulations about the preparation and making of SVDOs.

22.“Street area” is defined in new section 61QC as an area in England “which is of a prescribed description” and “no part of which is within an excluded area”.

23.“Excluded area” means any of the areas listed in subsection (2) of that section. Six types of area are listed, each of which is afforded special protection by existing planning legislation. They include, for example, National Parks, sites of special scientific interest, areas of outstanding natural beauty and green belt land.

24.The Bill gives the Secretary of State a Henry VIII power11 to amend subsection (2) by regulations so as to—

Such regulations are subject to the affirmative procedure.

25.The Memorandum provides the following justification for the power—

“Street vote development orders are a new route to planning permission and the department considers it is important for Ministers to have the flexibility to adjust the scope of the measure if evidence emerges prior or following commencement that this is necessary to ensure the effective operation of the policy. The government anticipates using this power to extend the list to protect other sensitive locations and, in exceptional cases, to remove or amend existing ones, where protections can be secured through alternative means”12.

26.We consider that a proposal to remove (in whole or in part) any of the areas that are currently listed in the Bill as “excluded” would be likely to be much more controversial than a proposal to expand that list. Extending the application of SVDOs to any of those areas that the Bill currently excludes would be a highly significant step in policy terms: it would involve extending — to areas in which development is currently subject to significant restrictions in the wider public interest — a planning regime that is designed to encourage development at the request of small groups of residents.

27.The Memorandum suggests13 that the power would only be used to extend the application of SVDOs to any of the excluded areas “in exceptional cases” and “where protections can be secured through alternative means” but there is nothing on the face of the Bill to limit the power in this way and it is by no means obvious what sort of thing the Government has in mind when it refers to “exceptional cases” (and the Memorandum does not elaborate on this).

28.We consider that the use of the Henry VIII power in new section 61QC(3) to extend the application of street vote development orders to any of the protected areas that the Bill currently excludes would be such a significant step in policy terms that, unless the Government can fully justify it, the power should be limited so that it cannot be used for that purpose.

Clause 99—new section 61QD(2)(b) of the Town and Country Planning Act 1990: power to make provision as to the circumstances in which a street vote development order may be made

29.New section 61QD(1) requires the Secretary of State to make “SVDO regulations” about “the preparation and making” of SVDOs. Such regulations are subject to the negative procedure.

30.According to the Memorandum,14 this is a power to provide for “matters of administrative and procedural detail to augment the fundamentals of the policy which are set out on the face of the Bill”.

31.However, the matters about which provision must be made in such regulations include “the circumstances in which a street vote development order may be made”.15 We consider that this does not sound like a matter of administrative or procedural detail. The power would appear to allow the regulations to make provision that goes to a fundamental aspect of the policy. Yet such provision is left to regulations subject only to negative procedure scrutiny.

32.We consider that—

Clause 99—new section 61QE(1)(o) of the Town and Country Planning Act 1990: power to make provision as to the threshold of votes that must be met in a referendum on whether a street vote development order may be made

33.New section 61QE(1) gives the Secretary of State power to make provision in SVDO regulations about “referendums held in connection with street vote development orders”. It contains a non-exhaustive list of matters that may be provided for in such regulations. The regulations are subject to the negative procedure.

34.According to the Memorandum, this power is concerned with “matters of procedural detail to augment the fundamentals of the policy which are set out on the face of the Bill”.16 However, the matters about which provision may be made include “the threshold of votes that must be met before a street vote development order may be made”.17

35.We consider that provision as to the threshold of votes that must be met in a referendum on whether a proposed SVDO may be made (for example, as to whether the result is to be determined by simple majority or by a stronger mandate) is not merely a matter of procedural detail but is instead highly significant in policy terms. Yet the power to make such provision is subject only to negative procedure scrutiny.

36.The Memorandum states that “There is precedent for setting out detailed referendum procedures in secondary legislation in the context of planning permission granted by neighbourhood development orders, see for example the Neighbourhood Planning (Referendums) Regulations 2012 (S.I. 2012/2031)”.18

37.However-

38. We consider that-

Clause 99—new section 61QF of the Town and Country Planning Act 1990: power to “provide for exemptions” in regulations which make provision about the preparation and making of street vote development orders

39.New section 61QF gives the Secretary of State a broad power to “provide for exemptions” in SVDO regulations.20 The power is subject to the negative procedure.

40.According to the Memorandum,21 the power provides “for matters of detail to be set out in secondary legislation to augment the pillars of the policy which are set out on the face of the Bill” and “the negative resolution procedure is appropriate … because the provisions mainly relate to administrative procedures and the effective operation of the street vote development order process”.

41.However, as the power is broad and open-ended, it need not be used only in respect of mere “matters of detail” or “administrative procedures”. The matters about which provision may be made in SVDO regulations include—

We consider that neither of these can reasonably be described as mere “matters of detail” or “administrative procedure”, yet the power in new section 61QF would allow changes to be made in relation to such matters by regulations subject only to negative procedure scrutiny.

42.We consider that, consistent with our recommendations in paragraphs 32 and 38 above, the power in new section 61QF to “provide for exemptions” should be amended so that it is not capable of being used to provide for exemptions in relation to—

as these matters are too significant in policy terms to be left to be determined by regulations.

Clause 99–new section 61QG(2)(a) and (c) of the Town and Country Planning Act 1990: powers to prescribe (a) development for which planning permission may be granted by a street vote development order and (b) conditions that must be met in order for planning permission to be granted by a street vote development order

43.New section 61QG(2) gives the Secretary of State powers to make regulations to prescribe development for which a SVDO may provide for the granting of planning permission. A SVDO may only provide for the granting of planning permission for a development that—

44.The Memorandum provides the following justification for the powers to prescribe—

“These delegated powers allow the Secretary of State to prescribe in detail the requirements and criteria that development must meet before a proposal can be put to referendum. The government anticipates that these requirements will be highly technical in nature as they will need to take into account a wide range of urban contexts and circumstances. It would therefore not be appropriate to set out such a level of detail on the face of the Bill”.27

45.The powers are subject to the negative procedure. The Memorandum argues28 that the negative procedure is appropriate because-

46.We find this far from convincing. The Memorandum does not explain—

47. We consider that—

Clause 99–new section 61QH(2) of the Town and Country Planning Act 1990: power to amend the list in the Bill of categories of development (“excluded development”) for which planning permission cannot be granted by a street vote development order

48.A SVDO cannot grant planning permission for any development that is “excluded development”.30 “Excluded development” means any of the categories of development listed in subsection (1) of section 61QH. Five categories of development are listed, each of which is subject to special restrictions under existing planning legislation. They include, for example, development of a listed building and development of a scheduled monument.

49.The Bill gives the Secretary of State a Henry VIII power31 to amend subsection (1) by regulations so as to—

Such regulations are subject to the affirmative procedure.

50.The Memorandum provides the following justification for the power—

“Street vote development orders are a new route to planning permission and the department considers it is important for Ministers to have the flexibility to adjust the scope of the measure if evidence emerges prior or following commencement that this is necessary to ensure the effective operation of the policy. The government anticipates using this power to extend the list to remove other development from scope or, in exceptional cases, to narrow or amend the list where equivalent protections can be secured through alternative means”.32

51.We consider that a proposal to remove (in whole or in part) any of the categories of development that are currently listed in the Bill as “excluded” would be likely to be much more controversial than a proposal to expand that list. Extending the application of SVDOs to any of those categories of development that the Bill currently excludes would be a highly significant step in policy terms: it would involve extending - to categories of development that are currently subject to significant restrictions in the wider public interest - a planning regime that is designed to encourage development at the request of small groups of residents.

52.The Memorandum suggests that the power would only be used to extend the application of SVDOs to any of the categories of excluded development “in exceptional cases” and “where equivalent protections can be secured through alternative means” but there is nothing on the face of the Bill to limit the power in this way and it is by no means obvious what sort of thing the Government has in mind when it refers to “exceptional cases” (and the Memorandum does not elaborate on this).

53.We consider that the use of the Henry VIII power in new section 61QH(2) to extend the application of street vote development orders to any of the categories of development that the Bill currently excludes would be such a significant step in policy terms that, unless the Government can fully justify it, the power should be limited so that it cannot be used for that purpose.

Clause 99—new section 61QL of the Town and Country Planning Act 1990: power to modify or exclude the application of Schedule 7A (biodiversity gain in England) to that Act in relation to planning permission granted by a street vote development order

54.New section 61QL gives the Secretary of State power to make regulations that modify or exclude the application of Schedule 7A to the Town and Country Planning Act 1990 (biodiversity gain in England) in relation to planning permission granted by a SVDO. Schedule 7A was inserted into the 1990 Act by the Environment Act 2021. It requires grants of planning permission to be subject to a condition to secure that the “biodiversity value” attributable to a development for which planning permission is sought exceeds the pre-development biodiversity value of the onsite habitat by at least 10%. The power in new section 61QL to modify or exclude the application of Schedule 7A is subject to the negative procedure.

55.The Memorandum provides the following justification for the power-

“It is necessary for the Secretary of State to have the flexibility to make changes in respect of the framework in Schedule 7A so that the biodiversity net gain objective referred to in … Schedule 7A can be met in the context of SVDOs”.33

56.The Memorandum provides the following justification for the negative procedure applying-

“the provisions mainly relate to tailoring administrative procedures to ensure they operate effectively for street vote development orders and so that biodiversity net gain can be achieved in relation to this consent route”.34

57.We consider that-

Clause 113—new section 196E of the Town and Country Planning Act 1990: power to provide relief from enforcement of planning conditions

58.Clause 113 amends the Town and Country Planning Act 1990 by inserting a new section 196E which gives the Secretary of State power to provide by regulations that a local planning authority may not take — or is subject to restrictions in how it may take — enforcement measures in relation to failures to comply with planning conditions which occur during a period of time specified in the regulations (the “relief period”). The power is subject to the negative procedure.

59.According to the Memorandum35

60.The Memorandum refers to the unpredictability of “novel circumstances in the future [that] may cause disruption and which would merit a temporary relaxation of enforcement action against specified planning conditions and limitations”.36 However, it doesn’t explain why the power conferred is so broad and open-ended: its exercise is subject to no requirement for criteria to be met or for pre-conditions to be satisfied. There is nothing to limit the use of the power to “times of disruptions” or to “temporary relaxation” of enforcement measures.

61.The Memorandum refers37 to two existing powers which it suggests are comparable—

62.We consider that—

Clause 128—power to permit community land auction arrangements

63.Part 5 of the Bill establishes a new set of arrangements which will allow local planning authorities to raise money from land which is proposed for development. The Bill enables a limited number of local authorities to put in place a community land auction (CLA) arrangement. A CLA arrangement is where the local planning authority (LPA) invites anyone who has a freehold or leasehold interest in land to offer to grant the LPA what is known as a CLA option with a view to the land being allocated for development in the next local plan.

64.The provisions of Part 5 will only have effect for a period of 10 years. The plan is that they should be piloted by a limited number of local authorities. Provision is made in clause 128(1) for the LPAs to be chosen by the Secretary of State by direction. In our view, this constitutes the delegation of a legislative power because its effect is to determine which LPAs are able to exercise the powers conferred by Part 5. The power of direction is not however subject to any parliamentary scrutiny.

65.In our special report, “Democracy Denied?”, we expressed concern about powers having legislative effect being placed outside of legislation:38

“Provision in bills giving ministers powers to make determinations, directions, arrangements or to issue codes of practice, public notices etc.—where they are in effect camouflaged legislation—is an unacceptable ploy and, as matter of principle, should not be sought by the Government in the bills they put before Parliament. In the absence of convincing reasons to the contrary, therefore, we recommend that they should not be used.

Where the Government take the view that they have convincing reasons, then the use of these devices—and the level of scrutiny applied to them—should be clearly identified in the delegated powers memorandum and fully justified.”

66.the Department gives the following reasons for the direction power under clause 128(1) not being subject to any parliamentary scrutiny:39

67.We do not find these reasons convincing. Although the giving of a direction does not require the LPA concerned to put in place a CLA arrangement, it is nevertheless of significance because it is a necessary condition which has to be met before an authority is able to exercise those powers. It is not clear from the memorandum as to precisely what criteria will be used in deciding which authorities are given the powers to put in place CLA arrangements. The memorandum refers to the fact that the direction power will be enable the Secretary to retain control over the number of CLAs in place during the piloting period.40 That suggests that not all local planning authorities who want to run a CLA arrangement will necessarily be able to do so, and therefore it is possible that the process of choosing will be controversial.

68.Nor do we find it convincing that it will not be practicable to bring to Parliament each decision to allow a LPA to put in place CLA arrangements. A statutory instrument specifying a LPA for the purposes of Part 5 is likely to be very short and is unlikely to be time-consuming to draft. It is only the draft affirmative procedure which could have the effect of delaying the implementation of the decision. Otherwise, the legislation would be capable of having immediate effect.

69.We consider that the Department has failed adequately to justify using a direction making power to specify the local planning authorities which are to have the power to put in place CLA arrangements. In our view, the designation of the relevant authorities should instead be done by regulations contained in a statutory instrument, with the negative resolution procedure offering an appropriate level of parliamentary scrutiny.

Part 6—environmental outcomes reports

70.Part 6 is intended to replace the EU processes of environmental impact assessment with a new framework for assessing proposals using environmental outcome reports. The new system will provide for an outcomes-based approach under which the Secretary of State will specify outcomes in relation to environmental protection, and the assessment will be done through environmental outcomes reports which will assess the extent to which proposals are likely to impact on the delivery of the environmental outcomes specified by the Secretary of State.

71.Part 6 constitutes skeleton legislation, with the result that all the key elements of the new environmental impact assessment regime are to be set out in subordinate legislation:

A. The specific environmental protection outcomes against which any proposal is to be assessed

At its heart are the outcomes relating to environmental protection which are the focus of environmental outcomes reports. Clause 138(2) defines environmental protection for these purposes in very wide terms: it includes protection of cultural heritage as well as the protection of the landscape and the protection of the natural environment (ie land, air and water; and plants, wild animals and organisms together with their habitats). The outcomes relating to environmental protection are left wholly to be specified in subordinate legislation. There is no requirement for specific matters to be included. Nor does the Bill provide any indication as to any principles to be applied in determining the outcomes except that there is a requirement for the Secretary of State to have regard to the current environmental improvement plan formulated under Part 1 of the Environment Act 2021. No indication is given on the face of the Bill as to the types of outcomes which are to be specified or how general or specific they are to be.

B. The types of proposal for which environmental outcomes reports are required

Part 6 leaves it wholly to regulations to determine the circumstances in which there will be a requirement for an environmental outcomes report. The requirement to have an environmental outcomes report applies where there is a “relevant consent” or a “relevant plan”. By virtue of clause 140, what constitutes a relevant consent or relevant plan for these purposes is to be set out in regulations. “Consent” is defined to mean any consent, approval, permission, authorisation, confirmation or decision (however described, given or made) that is required, or otherwise provided for, by or under any enactment in relation to a project, where “project” is defined to mean a project in the UK involving any activity capable of affecting the natural environment, cultural heritage or landscape. “Plan” is defined to mean a plan or programme which relates to a project or to environmental protection in the UK. Accordingly, the requirement for an environmental outcomes report is capable of applying to virtually any activity which is subject to some form of statutory consent process or which can be described as a plan or programme as defined in the Bill.

C. The details of how the impact assessment process is to work

Clause 139 makes it clear how in general terms environmental outcomes reports are to work. Where an environmental outcomes report is required for a proposal, no step may be taken to give effect to the proposal until the report has been prepared, and the report must be taken into account in determining whether the proposal is to proceed. Also, clause 139(4) defines what constitutes an environmental outcomes report. Broadly, it is an assessment of (a) the impact of the proposal on the delivery of specified environmental outcomes, and (b) any steps for increasing the extent of that delivery and remedying, avoiding or mitigating effects which limit that delivery. However, key elements are still left to be set out in regulations:

Given the very wide range of consents and plans which the requirement may apply to, these things are liable to differ significantly in different cases.

D. How the enforcement of the environmental impact assessment regime is to work

Clause 145 enables regulations, which set out the new environmental impact assessment regime, to make provision about the enforcement of any requirements imposed by the regulations. This includes:

All of these powers are at large with nothing to limit the circumstances in which they may be used.

72.The starting point for the Department in structuring Part 6 as skeleton legislation appears to be the fact that the existing environmental assessment framework which it is replacing is for the most part contained in subordinate legislation- i.e. regulations under section 2(2) of the European Communities Act 1972. According to the Department, there is therefore nothing new in these matters being the subject of delegated powers. The Department asserts that it would be odd if going forward the only ability to amend provision previously made by regulations is by way of primary legislation.41

73.We have in the past made clear our view (most recently in the report on the Energy Bill)42 that:

“… the fact that provisions governing a subject area are currently contained in regulations made under section 2(2) of the ECA does not by itself make it appropriate to use a regulation-making power to amend and extend the provisions in that subject area. Instead, the proposal to confer regulation-making powers needs to be justified on its own merits, particularly where, as in these cases, they are framework powers which are therefore capable of providing a very broad scope of regulation making powers to the Secretary of State.”

This is because of the very different context in which section 2(2) regulations are made as a means of implementing measures where required to do so under EU law.

74.The Department provides three other reasons in the memorandum for structuring Part 6 as skeleton legislation:43

75.We do not consider that the need to update the legislation to reflect scientific change and best practice etc. is a sufficient justification for the very wide, and wide ranging, powers granted by Part 6. Nor does it seem to us that the wide range of activities covered by the Part should be used to justify the scale of the powers being conferred. Arguably, this justification is circular because it relies on the wide scope of the powers being conferred (and the consequent need to make changes resulting from that) as a reason for conferring such wide powers. The safeguards contained in clause 142 do not affect or limit the width of the powers or the scope of the provision which may be made in exercise of them.

76.In enacting Part 6, Parliament will have set no policy framework for assessing the environmental impact of proposals over as wide a range of activities as it is possible to imagine. This would enable successive Ministers to implement regimes of greatly different character and effect without the need for further primary legislation. In our report, “Democracy Denied?”,44 we set out our view that skeleton legislation is rarely justified, and we do not consider that the Department have provided adequate justification in this case, particularly with its reliance on the precedent of regulations under section 2(2) of the European Communities Act 1972. Accordingly, we consider that the delegated powers conferred by Part 6 are inappropriate in creating skeleton legislation.

Clause 156—amendments to section 134 of the Local Government, Planning and Land Act 1980 to allow urban development areas to be designated and urban development corporations to be established by negative procedure statutory instrument; and

Clause 157—amendments to the New Towns Act 1981 to allow an area to be designated as the site of a proposed new town by negative procedure statutory instrument

77.Section 134 of the Local Government, Planning and Land Act 1980 gives the Secretary of State power, exercisable by statutory instrument, to designate an area of land as an “urban development area” if the Secretary of State considers this to be “expedient in the national interest”. Where an area has been so designated, section 135 of that Act requires the Secretary of State to establish, by statutory instrument, an “urban development corporation” for the purposes of regenerating the area.

78.Clause 156 of the Bill amends section 134 to give the Secretary of State a new power, exercisable by statutory instrument, to designate an area of land as an “urban development area” where—

Where an area is designated via this new route, the Secretary of State is required by section 135 to establish, by statutory instrument, an urban development corporation for the purposes of regenerating the area.

79.A key distinction between (a) the Secretary of State’s existing powers to designate an area as an urban development area and to establish an urban development corporation for that area, and (b) the new powers to do so in response to a “locally-led proposal” is that the existing powers are subject to the affirmative procedure but the new powers are subject only to the negative procedure.

80.Section 1 of the New Towns Act 1981 gives the Secretary of State power, exercisable by statutory instrument, to designate an area of land as the site of a proposed new town if the Secretary of State considers it to be “expedient in the national interest” that the area is developed as a new town by a corporation established under that Act.

81.Clause 157 of the Bill inserts a new section 1ZB into the 1981 Act to give the Secretary of State a new power, exercisable by statutory instrument, to designate an area of land as the site of a proposed new town where—

82.A key distinction between (a) the Secretary of State’s existing power to designate an area as the site of a proposed new town, and (b) the new power to do so in response to a “locally-led proposal” is that the existing power is subject to the affirmative procedure but the new power is subject only to the negative procedure.

83.According to the Memorandum45

84.We consider that a proposal to reduce the level of Parliamentary scrutiny which applies to the establishment of urban development areas and new towns merits a convincing explanation. We find the explanation given - that maintaining the existing requirements for affirmative procedure scrutiny “could lead to uncertainty and delay”–entirely unconvincing.

85.The Memorandum fails to adequately explain—

86.Accordingly, we consider that—

Clauses 66, 153 and 219(10)—de-hybridisation provisions

87. The following clauses each contain provision for statutory instruments that are made under specified powers and that would otherwise be treated as hybrid instruments for the purposes of the standing orders of either House of Parliament to instead proceed in that House as if they were not hybrid instruments-

88.Hybrid instruments are instruments considered to affect specific private or local interests in a manner different from the private or local interests of other persons or bodies of the same class. Under House of Lords Private Business Standing Orders, a special procedure allows anyone whose private interests are directly and specially affected by an instrument to petition against it. The petition may in due course be considered by a select committee of the House of Lords.

89.The clauses referred to in paragraph 98 above contain provision preventing this special procedure applying to instruments made under specified powers and that would otherwise be hybrid.

90.We routinely draw the attention of the House to such “de-hybridising” clauses so that the House can satisfy itself that any interests that would normally be afforded protection by the hybrid instruments procedure are afforded protection by other means, e.g. statutory consultation.

91.We therefore draw to the attention of the House the de-hybridisation provisions in—


1 At paragraph 1.

2 Department for Levelling Up, Housing and Communities, Delegated Powers Memorandum, undated.

3 Clause 219(6) and (9) provides for the negative resolution procedure to apply to the second or any subsequent regulations made under clause 11. Otherwise, regulations under Chapter 1 of Part 2 are subject to the draft affirmative resolution procedure by virtue of clause 219(4) and (5)(a).

4 See paragraph 10.

5 See the amendment to section 117 of the 2009 Act made by clause 65(5).

6 See paragraph 135 of the Memorandum.

7 See in particular paragraphs 91 to 97 of the 12th Report of Session 2021- 22, “Democracy Denied? The urgent need to rebalance power between Parliament and the Executive”.

8 See new section 61QC(1) (inserted by clause 99 of the Bill).

9 At paragraph 590.

10 SVDOs are not subject to any Parliamentary procedure.

11 In new section 61QC(3).

12 At paragraph 637.

13 At paragraph 637.

14 At paragraph 643.

15 See new section 61QD(2)(b).

16 At paragraph 650.

17 See new section 61QE(1)(o).

18 At paragraph 651.

19 In section 61E(4) and (5) of the Town and Country Planning Act 1990.

20 Regulations which make provision about the preparation and making of street vote development orders.

21 At paragraphs 655 and 656.

22 See new section 61QD(2)(b).

23 See new section 61QE(1)(o).

24 See new section 61QG(2)(a).

25 “Excluded development” is defined in new section 61QH.

26 See new section 61QG(2)(c).

27 At paragraph 660.

28 At paragraph 661.

29 The Memorandum does not explain what it means by “sector stakeholder”.

30 See new section 61QG(2)(b).

31 See new section 61QH(2).

32 At paragraph 664.

33 At paragraph 712.

34 At paragraph 713.

35 At paragraph 877.

36 At paragraph 877.

37 At paragraphs 879 and 880.

38 See paragraphs 102 and 104.

39 See paragraph 1271 of the Memorandum.

40 See paragraph 1270.

41 See in particular paragraphs 1399 and 1400 of the Memorandum.

42 11th Report of Session 2022–23. See, in particular, paragraph 44.

43 See paragraphs 1401 to 1403 and 1409 of the Memorandum.

44 See, in particular, paragraph 66.

45 At paragraphs 1513 to 1515.




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