Housing and Regeneration Bill

My Lords, I am grateful to all noble Lords who tabled these amendments. This has been an excellent debate, as it was in Committee. Although we consider that these amendments are not necessary, that does not mean that they are not important in prompting debate and enabling us to reconsider our response. I am also grateful for the contribution of my noble friend Lady Ford, who speaks with such clarity and authority; there is no substitute for practical experience. Although I shall do my best to persuade the House that we have responded to concerns with integrity and care—I accept that there are deep concerns about this issue—the fact that my noble friend was able to explain the circumstances under which exceptional powers are used in partnership was extremely helpful to everyone. The noble Viscount, Lord Eccles, also commented on the matter. What we want the HCA to achieve—this is certainly true of the chief executive, Sir Bob Kerslake—could not be realised unless the entire organisation was completely committed to partnership with the agencies, especially local authorities, which will build the houses. The HCA’s task is to ensure that all parts of the complex system for planning, regeneration and housebuilding work in harmony and to the best effect. That is what we want the HCA to achieve. Therefore, I completely concur with everything that noble Lords have said across this range of amendments about the need for partnership and a close working relationship. As Bob Kerslake says, the HCA will be the best and closest partner for local authorities. I hope that I will exemplify that in my response to these amendments. I completely understand the intention behind Amendment No. 2, in the name of the noble Baroness, Lady Hamwee. However, I cannot accept it because it would be too restrictive. Where the Secretary of State uses her powers to designate an area and confer planning functions on the HCA, the amendment would require it to exercise those functions by means of a committee. It specifies that the committee should meet in the local area within which any designated land lies. The noble Baroness spoke eloquently about the need to work closely with and listen to the local community, a matter that I shall return to when I discuss my amendments. We believe that this amendment is too restrictive. The amendments that I will bring forward in respect of Clauses 13 and 14 provide that the HCA may set up a committee or sub-committee for the purpose of exercising planning functions, which would be a likely option. If it does so, it must inform every local authority for the designated area and invite them to suggest one or more candidates for membership of such a committee. However, I do not think that that is the only possibility or that we should stipulate in the Bill that it would be the only possibility for exercising functions. The noble Baroness and I agree that it is important that the HCA, when acting as the local planning authority for a designated area, should be properly accountable to those living in and around that area. One way in which that might be achieved would be if the HCA exercised planning functions in meetings that were open to the public. When we come to the noble Baroness’s amendment that deals with that point, in relation to Schedule 8, I will undertake to consider it. I am happy to help that amendment along. However, this amendment would restrict the ability of the HCA to exercise its functions as it sees fit. Amendment No. 4, tabled by the noble Lord, Lord Dixon-Smith, relates to working through the planning system. The noble Lord was eloquent in his concern and his conviction that the HCA will work only if it is within the planning system. He is right about that. We support everything that he says. In his attempt to ensure that the HCA works in partnership, he uses the term ““co-operating””. The language does not matter so much as the intent and what is to be achieved. His amendment refers to co-operating with local authorities and any other body involved in any activities related to its objects. He argued that, without express provision that the HCA must work through the planning system, it could be used to circumvent the system and local opinion to drive through unwanted development that is not in accordance with the development plan. He also argued that, without a requirement in the Bill compelling the HCA to co-operate with local authorities and other groups already working towards the achievement of its objects, the agency will be a top-down leviathan with no knowledge of or sensitivity to local concerns. I cannot agree. There are a number of ways of interpreting the difference between co-operation and partnership. Co-operation is a slightly lower test than partnership, but the effect would be the same. It is simply not the case that the Bill as drafted in any way enables the HCA to circumvent any part of the planning system. Even in the unlikely event that the Secretary of State designates an area and confers responsibility for preparing and maintaining all or part of the local development framework for the designated area on the HCA, that in no way exempts the HCA from having to go through the same process as any other local planning authority to amend the plans for the area, including consultation and examination in public. If it is involved with a development that requires planning permission, that must be applied for and obtained in the normal fashion. There are no short cuts for the HCA. I take the point made by the noble Baroness, Lady Hamwee, that this is a major undertaking. These plans are complex to make and amend. They will not be undertaken lightly. Nothing in the Bill in any way exempts the agency from abiding by the laws of the land, including on the development and use of land. As for the HCA being centrally driven, it will work with local communities to determine the best way of delivering national objects locally. We have included the HCA as a body that will be a statutory partner authority for the local area agreement and local improvement targets. The agency will support local partners to deliver the new homes and regeneration projects that their communities need, which will have been identified at a local level. The agency will be working closely with local authorities and regional partners to identify the best way of delivering their priorities. The remainder of what I want to say about how this will work is best left until I address my amendments, because that will pick up the argument. If the noble Lord will forgive me, I will leave his amendment there. Amendment No. 9, in the name of the noble Baroness, Lady Hamwee, is about the support that the HCA may provide to local planning authorities. The debate on that was quite lively. I am happy to give an assurance that the HCA will indeed share its planning knowledge and expertise with local planning authorities. I have said at different stages of the Bill that it is very much our intention that the HCA should become a one-stop shop for local partners who need to seek advice, guidance, skills or funding support. We have made provision for that in the Bill. For example, Clause 22 provides that the HCA may, with the consent of the Secretary of State, give financial assistance to any person. Clauses 41, 42, 43 and 47 empower the HCA to provide information services, advice, education, training, guidance and support services to those that need them, within its objects. To pick up the noble Baroness’s language, the HCA will indeed be a centre of excellence and will put its expertise at the disposal of local authorities. It is worth highlighting the excellent work of the existing organisations that will make up the agency. They are already working to provide support and improve knowledge and skills. For example, the Advisory Team for Large Applications, ATLAS, provides an independent advisory service to local planning authorities. It works with local authorities and the private sector to deliver large-scale development. ATLAS is sponsored by my department and is hosted by English Partnerships, as part of the Planning Advisory Service. As my noble friend said, that service already does an excellent job in assisting planning authorities in practical ways. However, these services should not be restricted to planning authorities. The Housing Corporation’s good practice programme aims to encourage the development and testing of new ideas to generate and promote good practice in the delivery of social housing. Within the centre of excellence is another resource of which I have great expectations: the Academy of Sustainable Communities. The academy has, for two or three years now, been applying itself to raising the skills and expectations of building communities, in terms not just of physical infrastructure but of what is needed in the social infrastructure of communities. The academy aims to inspire, motivate and influence people across many sectors to create sustainable communities. For example, its first priority was to work with schools. It works with people with leadership roles in the communities and with professionals. It will be a source of growing more planners. The academy is an exciting and innovative group of people. The HCA will be enriched, and it will enrich and expand its work, because of that. These are some of the tools currently at our disposal. I hope that they demonstrate our intentions for how the HCA will work to improve places and to grow the skills that we need. Amendments Nos. 16, 21, 27, 35 to 38, 80, 81, 83, 85 and 192 are a group of miscellaneous government amendments. This is a sort of trailer for the more important amendments that I shall address in a minute. All these amendments are related and go some way towards responding to points raised by noble Lords in Grand Committee. The noble Lord, Lord Greaves, specifically asked for these amendments to be made. I gave him an undertaking to consider these clauses further, to determine whether they were necessary to the success of the HCA’s operations and to return to them on Report. It was a useful exercise because, after consideration, we decided that the clauses were not needed and, therefore, we now seek to remove them from the Bill. I am keen to respond to noble Lords’ concerns about carrying forward all powers when they are no longer needed—we had an interesting debate on that in Committee—and so I hope that noble Lords will be pleased to hear that we have gone further still. We have removed the HCA’s ability to serve notices on local highway authorities requiring them, under Clause 21, to connect private streets to existing highways. When we considered the use of Clauses 15, 16 and 17, it became evident that the powers of Clause 21 were not necessary. If the HCA wants a private street to be connected to an existing highway, it should work in co-operation with the local authority. It should not have a power that could be viewed as riding roughshod over it. Although Clause 21 is not directly linked to the amendments to Clauses 15 to 17, it raises similar issues, and I hope that these amendments demonstrate to your Lordships that we see the partnership between local authorities and the agency as being fundamental to the success of the agency. By removing these clauses, we are confirming our commitment to the fact that designation powers will be used only in rare circumstances and that, where the agency is involved in a development or regeneration project, it will work with the relevant local highways authority to ensure that roads are connected if the development requires it. The remaining amendments in this group are all consequential on the deletion of Clauses 15, 16, 17 and 21. They remove references to the clauses and so can be considered as housekeeping amendments. Before I come to the major block of amendments in my name, I want to say a few words about Amendment No. 15, in the name of the noble Lord, Lord Dixon-Smith, concerning consultation with local government. This is an important issue, as I hope to show shortly, but I do not think that it is necessary to state in the Bill that the Secretary of State should consult the HCA. In practice, the Secretary of State will not possibly be able to designate an area out of the blue without the involvement of the HCA. She could not impose such resource-intensive work on the HCA without extensive planning, as that would jeopardise the HCA’s ability to deliver against its objects. I hope that that has provided an introduction to Amendments Nos. 20, 22, 23, 24, 34, 66 and 68 in my name, which go to the heart of noble Lords’ concerns about the designation power. We have brought forward an important group of amendments in response to concerns raised in Committee about there being no explicit statement of partnership with local authorities in the Bill. We have also brought them forward to make it clear that the exceptional powers of designation will ensure a clear and central role for the respective local authority. I want to underline what the noble Lord, Lord Dixon-Smith, said: planning control is central to local government; it is one of its most important functions. I have said again and again that we regard the relationship between the HCA and local government as a vital partnership. However, because it was clear that noble Lords wanted a more explicit statement of that fact in the Bill, I have tabled these amendments, which amount to a substantial package of government amendments. The amendments should also be seen alongside something even more recent: the protocol with the LGA, which was launched in draft at the LGA conference last week. The protocol makes it clear how firm our commitment is to the new agency working in partnership with local authorities. The draft protocol is timely, as has become even clearer in the past few days. It says: "““The aim will be to reflect the shared endeavour between councils and central government to secure more and better homes that are both affordable and in places where people want to live, to regenerate and renew our most deprived communities, and to build councils’ strategic capability to achieve these ends””." That is a powerful and welcome statement of partnership. Amendment No. 68 will require the HCA to consult such representatives of local government as it considers appropriate about how the HCA pursues its objects and to publish a statement describing how it proposes to do that. In Committee, the noble Lord, Lord Dixon-Smith, suggested that he wanted psychology in the Bill that would indicate the nature and warmth of the partnership. I hope that we have achieved that in this amendment. I understand that some noble Lords think that the proposed new clause is rather far into the text. I have some sympathy with that view. The problem is that this is where logically it should sit. It does not belong after Clause 2 because, while it is about the HCA pursuing its objectives, we do not yet know how the HCA will be empowered to do that. In so far as the architecture of every Bill has logic, this new clause is logically in the right place. I hope that, given the LGA protocol, the clear statement and the other changes, noble Lords will be satisfied on this point. We go on to explain how the HCA will be empowered. Clauses 3 and 4 elaborate on that, as do Chapters 2 and 3. Chapter 4 sweeps up the rest, and so on. It was not a question of tacking it on at the back hoping that nobody would notice. Far from it—I wanted it to be something to celebrate. Its location makes no difference; it has the same meaning wherever it is. I hope that it meets the objectives of noble Lords. I turn to the designation powers set out in Clause 13. I studied the concerns expressed by noble Lords regarding the Secretary of State’s powers, and I have tabled amendments that address the issues in three key respects. First, we have imposed a new standard, which the Secretary of State will have to meet in reaching a decision. Amendment No. 20 sets out in more detail when it would be appropriate for the HCA to be the local planning authority for the whole or part of the designated area. It provides that in determining, "““whether it is appropriate for the HCA to be the local planning authority””—" in relation to the designated area— "““the Secretary of State must … be satisfied that making the designation order is likely to improve the effectiveness with which the functions of the local planning authority … are discharged””." My noble friend Lady Whitaker asked whether that would cover design. She will see that design is now expressed as an object, so it will certainly be part of the dialogue. In terms of effectiveness, it might mean that the area to be regenerated comes under more than one local planning authority, and the authorities find it challenging to co-ordinate their efforts. It might be that the regeneration objects are on a large-scale or a difficult site such that the local planning authority cannot deliver its ambitions for that site and maintain its level of service and core planning functions in the rest of the area. That is a very important test. The amendment makes the Bill explicit that not only must the Secretary of State consider it appropriate that the HCA should be the local planning authority for the whole or any part of the area, but she should consider that the HCA is likely to make more effective the discharge of the planning functions in that area. We can cite the example Milton Keynes as satisfying that test. Taking these powers, should it happen, would be a serious step for the HCA. There would have to be a clear understanding that it would bring extra capacity and added benefit to any area in which the step is taken. It implies not that the powers will be used to punish less effective local planning authorities but that as a particular part of the consideration, the Secretary of State must be satisfied that giving a selection of planning functions the HCA will improve things. Secondly, we have responded to concerns that the Bill was not clear enough about the consultation process and the place of the local authority within it. Amendment No. 22 imposes additional obligations on the Secretary of State that must be carried out before making a designation order. On top of the requirement to consult every local authority and/or local planning authority in any part of whose area is to be included, the amendment requires the Secretary of State to publish a draft of the order, reasons for making it, including why it is more effective, and to consult more widely on the proposed designation order. Amendment No. 24 adds the duty to consult not only local authorities but the representatives of the interests of local authorities—something about which noble Lords were concerned—in this case, the LGA, and people who live or carry on business in the proposed designated area. They are added to the list of statutory consultees. I hope that that will satisfy the noble Baroness, Lady Hamwee, who talked about listening closely to what people in the local area are saying. That gives the local government community as a whole— local authorities, but also those most likely to be affected by the making of a designation order—far greater ability to inform a decision whether to designate an area and the form any designation order may take. The noble Baroness asked me how that sits alongside the statement of local involvement. It is an addition to the provision in the 2004 Act, so there will be a separate statement on that point. I know that the suggestion that the Secretary of State consult directly with members of the public on the issue, rather than through the local authority, is unusual, but the use of the powers will be exceptional, so the circumstances will be unusual. It therefore seems appropriate that the Secretary of State should carry out a full public consultation in the affected areas. Of course, that would not prohibit an affected local authority from conducting its own consultation. We have also proposed in Amendment No. 34 a new clause to prepare and publish a statement of local involvement to set up the policy and make it clear how much it will involve the local authorities and relevant people affected by the designation order. That would be published after any designation order is made, but before the HCA could use any powers conferred on it. Thirdly, we are making provision for the local authority to be part of the implementation process, if a designation order is made. The new clause therefore also requires that where the HCA sets up a committee or sub-committee for the purpose of exercising functions conferred on it by a designation order or appoints a member to such a committee or sub-committee, it must inform every local authority for the designated area and invite the authority to suggest one or more candidates for membership. In practice, we expect that if the HCA ever has planning functions conferred on it, it will form a committee or sub-committee to exercise those functions. We further expect that if that happens, it will have members who will have been nominated by the affected local authorities. The noble Baroness asked me about membership. I know that there is some pressure to set out the detail of how the committees and sub-committee might work, who might sit on them and in what numbers, but, given that in this whole process we want to enable local authorities to use their judgment, they should be left free to decide in the event how they do it. It would not be very sensible, given the possible permutations of sub-committees, committees, functions and so on, to lay down any hard and fast rules. As I keep saying, we are here dealing with extraordinary circumstances. If the area is designated, we will certainly develop a robust code of practice and build on the experience of the Milton Keynes Partnership to address concerns about potential conflicts of interest, so there will be a clear code of practice to deal with the issues that the noble Baroness raised. We have examples—I will not go into them because this is a very long speaking note—of how that works. In Milton Keynes, for example, there are planning sub-committee standing orders that set references. The London Thames Gateway Development Corporation published a code of practice and terms of reference for the planning committee, and so on. I can provide noble Lords with a lot more detail. None of those examples will be an exact fit for the HCA being made into a local planning authority, but they give us some clear and reassuring ideas about how it could be managed in practice—we have some experience of success. We are absolutely committed to working with and supporting local authorities, as the locally elected bodies, with their experience. We will ensure that the Homes and Communities Agency, should such a need arise, will have a full toolkit of powers to use. The Secretary of State’s designation order-making powers are part of ensuring that it has a full toolkit, should it need it. I believe sincerely that the overall effect of the amendments is to give local authorities and local residents a great ability to shape any possible designation order, to allow them to influence the decision to designate and the functions to be conferred. If the decision is taken to continue the designation order, local authorities will now have a greater ability to influence how the functions conferred on the HCA may be exercised. The amendments, which include those on the general requirement on the HCA to consult representatives of local government about how it pursues its objects and to publish a statement describing how it proposes to do that, amount to a substantial package. That and the protocol with the LGA make it clear how firm our commitment is. I am delighted to tell noble Lords that the LGA has publicly welcomed this substantial package, and I hope that noble Lords will welcome it, too. In that context, I shall deal with the noble Baroness’s Amendments Nos. 17 to 19, 25, 26 and 28 to 33, which I hope she will see we have considered with equal care. Amendments Nos. 17 to 19 seek to remove the possibility of the Secretary of State determining that it is appropriate for the HCA to be the local planning authority for all permitted purposes and for all kinds of development. I understand what she is trying to do. She explained very clearly that she seeks to limit the HCA to being the local planning authority for specific permitted purposes for specific kinds of development. In fact, the amendments would not prevent the Secretary of State from determining that the HCA should be made the local planning authority for all permitted purposes for all kinds of development. In order for the amendments to prevent him doing so, the noble Baroness would have to set out each purpose and each type of development in the designation order. That would make this about analysis and definition, as she said, but it would make things complex and rather unwieldy. It is right and proper that consideration should be given to each committed purpose and type of development. Full consideration would also have to be given to which functions should be conferred. However, the noble Baroness has made an interesting point, and I propose to return to this matter at Third Reading. I will think about her argument in the mean time. I will not go into the detail of Amendment No. 25 and the question of a public inquiry, as I have tabled what I hope is a better alternative to a public inquiry, which is a much more limited option. I therefore hope to be able to chop half an hour from my speaking notes. I am sure that I will be incredibly popular if I do that. Amendment No. 26 would exclude Part 2 of the Planning and Compulsory Purchase Act 2004 from the permitted purposes for which the HCA could be made the local planning authority. That would mean that the Secretary of State could not confer plan-making functions on the HCA. I know that the noble Baroness feels very strongly about that. First, I shall address her point that this is an extension to the powers that could be conferred on predecessor bodies. UDCs, which have only development control functions available to them, have encountered real difficulties in working within a local plan that for some reason is not up to the task of delivering regeneration. With these updated powers, we are simply trying to provide for that exceptional circumstance and to ensure that that avoidable situation is avoided in the future. The local development framework, as the noble Baroness will know only too well, aims to put greater emphasis on the development needs of a local area. Where the existing development plan for a designated area provided an up-to-date and relevant framework for the regeneration of the type of development envisaged, there would be no point in conferring plan-making functions on the agency. There would be a point only where a local development plan is out of date or inadequate for the regeneration activities which the local area urgently needs and which the agency can help uniquely to take forward. It is really important that this positive function can be conferred on the agency, because the agency’s effectiveness will be limited without it. Again, we expect this function to be used extremely rarely. It will be conferred only where this is considered to be vital to the delivery of regeneration. This means that it will be used even less frequently because it will have to meet that condition as well. It might be appropriate where an area is designated which covers two or more local authority areas. Giving plan-making powers in that situation would enable the HCA to take a strategic and co-ordinated view of development prospects. The amendment would restrict that, but in the event that it was made, it would now be subject to all the consultation procedures set out in the speaking note on the previous group. It will have safeguards, not least planned consultation but also parliamentary input, which should be sufficient to ensure that it will be conferred only where necessary and with appropriate constraints. Amendment No. 32 would prevent the Secretary of State providing that any enactment relevant to the function to be conferred did not apply in the case of the HCA exercising local planning authority functions in a designated area. I am keen to maintain as much flexibility as possible in the Secretary of State’s powers, but I can understand why the noble Baroness has difficulties with this provision. I want to return to that matter at Third Reading. Amendment No. 33 would remove the ability of the Secretary of State to amend by order the definition of ““planning-related provisions”” or ““relevant functions””. The effect is to limit the functions that may be conferred to those set out in subsection (7), with the Secretary of State unable to amend them, except consequentially. I find it difficult to think of any circumstances in which the Secretary of State would want to amend these lists, other than consequentially. However, a new function might be created and the Secretary of State might wish to be able to confer it on the HCA, although even in those circumstances she could do so if the new function were to be created by primary legislation and an appropriate amendment were made to Clause 14(7). It is a wide power and the flexibility we sought to retain clearly concerns the noble Baroness even with the safeguard of any orders being made subject to affirmative resolution. I will also consider that issue further. I am conscious of wearying the House, but I have come to the last amendments in this important group. Amendments Nos. 193 and 196 propose that any designation order should be made by affirmative resolution. The noble Baroness has argued that the very exceptional nature of these powers suggests that they should be the most powerful instrument available for scrutiny. I am not entirely persuaded by the argument, but I am inclined to take it away in the context of today’s debate and what other noble Lords have said around the Chamber about the designated powers. I know that I have spoken for a very long time, but I hope that I have answered most points that were raised. I do not think that I have anything else to say on any of these amendments.