Neighbourhood Planning Bill - Report (2nd Day)

Part of the debate – in the House of Lords at 6:00 pm on 28th February 2017.

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Photo of Lord Young of Cookham Lord Young of Cookham Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office) 6:00 pm, 28th February 2017

My Lords, the co-pilot is back in charge and I am hoping for a smoother flight than the one I had on Thursday, when I encountered some turbulence as we flew over Clause 13. I listened with some interest to the debate we just had as a former councillor of the south London Borough of Lambeth; that was a very long time ago. We now move on to Part 2 of the Bill and amendments to the compulsory purchase provisions. Noble Lords will have noted that there are a large number of government amendments. These are mainly to ensure that the temporary possession provisions in the Bill work as intended and are fair to all, but they also respond positively to issues raised by noble Lords in Committee.

Amendments 41 to 43 amend Clause 16, which sets out the procedure for authorising temporary possession. In Grand Committee the noble Baroness, Lady Parminter, spoke eloquently to the amendment tabled by the noble Baroness, Lady Andrews, and herself about the need to ensure that land held inalienably by the National Trust is appropriately protected in the context of the new temporary possession power. As I indicated we would, the Government have considered the matter further, and I am happy to tell both noble Baronesses that we are now in agreement that the special interest of inalienable National Trust land, and its irreplaceable nature, requires particular protection.

Amendment 42 is the principal amendment in this group. It makes provision for any inalienable National Trust land which is required temporarily to be subject to the same additional protection as National Trust land which is to be acquired by compulsion. This means that where the National Trust sustains an objection to the taking of temporary possession of any of its inalienable land, the authorising instrument will be subject to special parliamentary procedure, in the same way as it would if the land was being acquired by compulsion.

The other amendments are technical and consequential. Amendment 41 clarifies that temporary possession must be authorised by the same type of instrument as would have been used if the land in question had been compulsorily acquired for the same purposes for which temporary possession is needed. Amendment 42 works by an exception to Clause 16(3)(c), which provides that where an authorising instrument authorises temporary possession then, for the purposes of the procedures for authorising and challenging it, temporary possession is treated in the same way as compulsory acquisition. Amendment 42 is therefore drafted so that it disapplies special parliamentary procedure for special kinds of land except for National Trust land held inalienably. As confirmed in the Government’s policy paper published in December 2016, special kinds of land other than National Trust land will be subject to the serious detriment test in the temporary possession regulations made under Clause 26. Amendment 43 clarifies Clause 16(3)(c) by removing a potential ambiguity allowing the clause to be interpreted in two different ways.

I now move to Clause 17 and Amendment 45. In Grand Committee, the noble Lord, Lord Shipley, raised the issue of whether there would be a time limit on acquiring authorities exercising their power of temporary possession after it had been authorised. This is an important matter and I am grateful to the noble Lord for raising it. Amendment 45 addresses the issue by providing that acquiring authorities must serve a notice of intended entry within three years from the date on which the compulsory purchase order authorising temporary possession becomes operative. Where temporary possession is authorised by a different type of authorising instrument—for example, a development consent order—the time limit for serving the notice of entry is within five years of it becoming operative. These limits are in line with those where land is being acquired by compulsion.

Amendments 47, 50, 50A, 50B, 50C, 51, 52 and 61A deal with the power to override easements and other third-party rights over land taken for temporary possession. Where land is taken by compulsion, acquiring authorities have this power, which is necessary to ensure that there are no impediments to the scheme going forward. These third-party interests are typically rights to allow underground services such as water, gas, electricity and telecommunication belonging to one property to pass beneath the land of neighbouring properties; there are also rights of light and of way and covenants restricting development to certain uses or density. Land needed for a temporary period may also be subject to easements or restrictive covenants, so to avoid problems such as those with insurance or litigation it is necessary for acquiring authorities to have the power to override these rights when they take temporary possession of land. That is what these amendments do. The provisions are modelled on the corresponding provisions for schemes where land is acquired by compulsion as set out in Sections 203 and 205 of the Housing and Planning Act 2016. Amendment 51 is the principal amendment, as it contains the power to override a relevant right or interest. Amendment 47 sets out the compensation provisions.

I come now to the four starred amendments. Noble Lords will have observed that the Government have withdrawn Amendments 44, 46 and 61 from the Marshalled List, and these four amendments are consequential on the withdrawal of Amendment 44. For the Government to withdraw three amendments and table four consequential amendments the day before Report is unusual, and I apologise to the House for that.

Amendment 44 would have required the acquiring authority to serve a notice of intended entry on those who own land subject to easements and other third-party interests, as well as those who have an interest in or a right to occupy the land. Amendments 50A and 61A replace Amendments 46 and 61. Amendment 50B is required to amend the advance payment provision in Clause 21 because, as currently worded and in the absence of Amendment 44, third-party right owners would not be able to claim an advance payment of compensation. This would clearly be unfair to them and should be corrected. Amendment 50C is consequential on Amendment 50B. I hope I have been able to reassure the House that these late amendments are minor in scope and will ensure that the temporary possession process mirrors the compulsory purchase process on this small but important point.

Amendment 52 provides protection for statutory undertakers and National Trust land and this corresponds to the provisions in Section 203 of the Housing and Planning Act 2016. Amendment 50 is consequential.

Amendments 48 and 49 relate to the compensation provisions for temporary possession. The noble Lord, Lord Shipley, tabled an amendment in Grand Committee seeking to remove subsections (3) to (6) of Clause 20. In responding to that amendment I indicated that the Government would discuss the issue further with the Compulsory Purchase Association. Those discussions have happened and I am pleased to say we have reached an agreed position. Amendments 48 and 49 delete subsections (3) and (4) of Clause 20, which require the value of the leasehold interest in the land for the period of temporary possession to be taken into account in calculating the amount of compensation due to a claimant. Expert practitioners have advised that taking into account this interest for this period may not be relevant in all cases. Saying it should be taken into account is, therefore, likely to lead to confusion and may cause unnecessary disputes about how the leasehold value is to be assessed.

The key point in this is that a claimant will be compensated for any loss or injury they sustain as a result of the temporary possession, as set out in Clause 20(2). We consider that the Upper Tribunal can assess loss or injury perfectly well by applying the established common-law principle that losses must be reasonably incurred and subject to the principles of causation, remoteness and mitigation, without being required to take into account something that may be irrelevant in a given case. We consider subsections (5) and (6) of Clause 20 to provide useful clarification to the compensation provisions concerning disturbance compensation and have therefore retained those subsections.

Finally, on temporary possession, we have a number of amendments which deal with the recommendations of the Delegated Powers and Regulatory Reform Committee concerning the regulation-making power in Clause 26. As I said in Grand Committee, we take the committee’s recommendations very seriously. We have, therefore, given further careful consideration to these matters and discussed them again with key stakeholders. I am pleased to inform the House that we agree completely with the committee’s recommendations in respect to the reinstatement of land subject to temporary possession. Amendment 53, therefore, places an obligation on the Secretary of State and Welsh Ministers to make regulations providing for the reinstatement of temporarily possessed land and for the resolution of disputes about reinstatement by an independent person.

Amendment 57 removes the previous reinstatement provision in Clause 26(2)(i), which is no longer required as a result of Amendment 53. Amendments 54 to 56 respond to the committee’s recommendation on Clause 26(2)(a). This subsection states that the Secretary of State or Welsh Ministers may make regulations to exclude or modify the temporary possession provisions in the Bill in particular cases or types of cases. The Delegated Powers Committee thought that this subsection was too wide and should be redrafted to reflect the narrow policy intention set out in the Government’s policy paper. We highlighted in the policy paper that development consent orders under the Planning Act 2008, and orders under the Transport and Works Act 1992 and Harbours Act 1964, can modify or exclude a statutory provision which relates to any matter for which provision has been made in the order, but that there is currently no corresponding power under the Pipe-lines Act 1962 or the Gas Act 1965.

Having now explored this issue further with stakeholders, we have discovered that the Pipe-lines Act 1962 and the Gas Act 1965 are not the only examples of legislation which do not contain the corresponding power to modify or exclude statutory provisions relating to matters for which provision has been made in the order or authorisation. We understand the committee’s concern that the power to exclude provisions, as drafted, could be used more widely. Amendments 54 and 55 therefore remove the general power to exclude or modify in Clause 26(2)(a) and limit the power to exclude provisions to the Pipe-lines Act 1962, Gas Act 1965, Gas Act 1986 and the Electricity Act 1989. However, we consider that there is a need to retain a general power to make limited modifications that appear necessary or expedient for giving full effect to the temporary possession provisions. For example, in some cases it may be appropriate to modify the time limit within which notice of intended entry must be served. Amendment 56 amends Clause 26(2)(b) to allow for this. Amendments 70 and 73 are consequential on Amendments 53 and 54.

Another recommendation from the Delegated Powers Committee was that Clause 26 should be amended to include a requirement that interested parties should be consulted before any temporary possession regulations are made. It has always been our intention to consult on the detail of the regulations before they were made. Amendment 58 demonstrates that the Government are therefore fully content to agree to the committee’s recommendation to include in the Bill a requirement that interested parties should be consulted before any temporary possession regulations are made.

Moving away now from temporary possession, I turn to Clause 29 and Amendment 62. New Section 6A of the Land Compensation Act 1961, in Clause 29, will set the rules by which the no-scheme world is defined. This is the world in which compensation for compulsory purchase falls to be assessed, and this amendment deals with no-scheme Rule 4. In Grand Committee the noble Lord, Lord Shipley, argued that Rule 4 is unnecessary and should be omitted. In responding, I said that we would discuss the matter further with the Compulsory Purchase Association. These discussions have now taken place and I am pleased to inform the House that the Government and the Compulsory Purchase Association agree that Rule 4 serves a useful function and should be retained.

Rule 4 was thought to duplicate no-scheme Rule 3 but, in disregarding other schemes that could be brought forward only by,

“the exercise of a statutory function or … compulsory purchase powers”,

Rule 4 performs a different function to Rule 3. Rule 4 comes into play when the same land is subject to two statutory schemes: an example would be those of the Olympic Park and Crossrail. Where land would be taken for the Olympic Park, that scheme is assumed to be cancelled, applying Rule 1. It is then assumed that there would be no other scheme to meet the same need, applying Rule 3. Applying Rule 4 assumes that no other public scheme would come forward; this allows the blighting effect of Crossrail to be disregarded as well, thus creating a fair no-scheme world for claimants.

I should mention here that a question has been raised by the noble and learned Lord, Lord Walker of Gestingthorpe, who is in Hong Kong and so unable to be in his place, about a possible tension between no-scheme Rule 4 and Section 14 of the Land Compensation Act. Having carefully considered his question and discussed this with expert practitioners, we are satisfied that there is no tension between Rule 4 and Section 14. I shall therefore write in detail to him and place a copy of the letter in the Library.

Amendment 62 adopts a conceptually different approach for what the valuer must do in applying Rule 4, to be consistent with the conceptual approach adopted for no-scheme Rules 1 to 3. It changes it from a negative into a positive action—from,

“no consideration of whether other projects would have been carried out”,

to an active assumption that,

“it is to be assumed that no”,

other projects would have been carried out. Amendment 62 therefore brings no-scheme Rule 4 into line with the conceptual approach used for no-scheme Rules 1 to 3, which use the same formulation.

I am sure that the House will be pleased to know that we are now nearing the end. Perhaps I may tell noble Lords that this speech is a lot shorter than it was originally. Amendment 63 is the Government’s final amendment to Part 2. It is a minor and technical amendment to correct an omission in Clause 33, which inserts new Sections 403A and 403B into the Greater London Authority Act 1999. It ensures that new Section 403B is treated in the same way as new Section 403A for the purposes of paragraph 20 of Schedule 11 to that Act. I beg to move government Amendment 41.