My Lords, I thank the noble Lord, Lord Kennedy, for tabling his Amendment 88. I appreciate that his aim in doing so was to make things clearer, an ambition which I fully support. However, on this occasion I do not think that an amendment is necessary because subsection (7) provides that Clause 16 must be complied with,
“in relation to each subsequent period of temporary possession”.
That makes it clear that acquiring authorities can serve more than one notice. Having said that, this is the sort of thing that could usefully be covered in guidance. We will update our compulsory purchase guidance in light of the reforms in the Bill and in the light of what the noble Lord has said, I will ask for this matter to be looked at again.
Amendments 89 and 91 to 93 deal with the counternotice provisions in Clause 17. These provisions are an improvement on the current temporary possession regimes, which have no counternotice procedure in them. I thank the noble Lord, Lord Shipley, for tabling his amendments. No one would be keener than I to simplify all this, if it were possible so to do. I doubt whether it would be realistic wholly to redraft this clause between now and Report but I endorse his sense of direction. He is quite right to say that there is a difference between the treatment of leaseholders and that of freeholders. This is because the Government believe that there could be a greater impact on leaseholders than freeholders when their land is subject to temporary possession, as the leaseholder may be left with a useless lease at the end of the temporary possession period—for example, when there is only a short period left to run on the lease. We considered this in debate on Amendment 69.
Clause 17(3) affords leaseholders additional protections in these circumstances by giving them the option to serve a counternotice, as the noble Lord, Lord Shipley,
said, providing that an acquiring authority cannot take temporary possession of their land at all. However, no such issues arise for freeholders. The justification for the temporary possession of the land will have been carefully considered on its individual merits at a public local inquiry before an independent inspector and confirmed only where it is in the public interest.
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The Government do not therefore consider it right for a freeholder to attempt subsequently to overturn the confirming authority’s decision by being able to serve a counternotice providing that the acquiring authority may not take temporary possession of the land, which would be the impact of the noble Lord’s amendment. Allowing freeholders to do so could force acquiring authorities down the more draconian route of permanent acquisition, resulting in more land than is necessary or desirable being acquired by compulsion. If that happened, the land would be surplus to requirements after the completion of the scheme and the acquiring authority might be obliged to offer it back to the original owner.
I appreciate why the noble Lord, Lord Shipley, tabled Amendment 94 and I agree that in the vast majority of cases, the acquiring authority should know exactly for how long it will need temporary possession of the land and work within those constraints. However, there will always be exceptions and the Government consider that there is a need for flexibility. For example, an acquiring authority may have a scheme to deliver a new road and temporarily needs some land for storing the construction materials. The authority may accept a counternotice on the basis that, allowing for foreseeable delays, this should be sufficient time to deliver the purpose for which temporary possession is required.
However, perhaps something unforeseen happens towards the end of that period—flooding, for example—which delays the scheme. The acquiring authority could then be left with a half-finished road if it is at the limit of the temporary possession which has been authorised. In those circumstances, the Government believe that there should be flexibility to acquire the land by compulsion. To answer the noble Lord’s question, in such circumstances the acquiring authority would need to proceed by making a new authorising instrument, such as a compulsory purchase order. This would have to be authorised separately; the acquiring authority could not just change its mind and opt to proceed as if the land were subject to compulsory acquisition under Clause 17(5). I hope that gives the noble Lord the assurance he is looking for.
Finally, I do not think that Amendment 90, regarding a limit of three years rather than six, was spoken to. I assume that the matter does not unduly disturb noble Lords, so I will not read out my copious briefing on it.