Lord Moylan:

Moved by Lord Moylan

53IA: Clause 33, page 49, line 1, at end insert—“(2) After section 250(8) of the Highways Act 1980, insert—“(9) Any compulsory purchase order made in exercise of powers under this Act that includes the right to take temporary possession or occupation of land must specify the maximum duration of such temporary possession or occupation, the mechanism for establishing compensation, and the condition in which the land is to be returned to the landowner.” (3) Before the powers in this section are implemented, the Secretary of State must publish guidance on the procedure for temporary acquisition, acceptable durations, calculation of compensation, and further compensation if the land is not returned in the agreed condition.”

My Lords, I apologise that this Amendment, which started life some time ago, got lost somewhere in the system. That was identified only yesterday, so it was tabled as a manuscript amendment, but the Minister has been aware for some time that the area is of concern. It is, I think, the first substantial area of concern. I set out my stall immediately as a Conservative who believes in the rights of private property and that, consequently, the Government’s power to undertake compulsory purchase should be constrained to occasions when it is absolutely necessary.

The Clause appears to create a new type of compulsory purchase altogether. It is entirely open to the Minister to correct me in all this, because I am not a planning or property lawyer, but it purports to create something that is, in effect, temporary compulsory purchase, and we have never heard of such a thing. We have heard of the temporary acquisition, compulsorily, of certain rights and usages across land that may be necessary for the purposes of construction on an adjacent site—way leaves, for example, may be acquired compulsorily—but the clause talks about the possession and acquisition of the land, and that seems to go considerably beyond what exists at the moment, unless, as I say, the Minister can correct me.

This measure is hard to find in the Bill because all this, which is at the bottom of page 48, is encompassed in five lines of text. So what I regard as potentially a very significant change—meriting, in my view, a Bill of its own, a Bill that actually has the words “compulsory purchase” in the short title—is possibly, though I am not saying deliberately, being slipped through in a way that would hardly be noticed at the bottom of a page in a Bill that on the face of it is about something very different.

My amendment does not seek to set the provision aside because it is possible that the Minister can correct me and explain that all he is doing is building on well-established precedents, which he will be able to cite. My amendment is simply to say that any order creating such a compulsion, any compulsory purchase order, must specify the manner in which the compensation is to be paid. Normally, for compulsory purchase, there is one payment and you pay to acquire the site, the land or the building. If you are doing it temporarily, what are you paying? Are you paying a form of rent, or are you paying a price together with a fixed repurchase price at the end of a defined period? None of that is known.

Then we come to the question of period. The second thing that my amendment would require is that when such an order was made, it should specify the period. Otherwise, what is to stop temporary becoming permanent—and for what purpose? If it is temporarily needed for a certain purpose, could it become permanent and used for a different purpose? If you temporarily need access to a field to put portakabins in it next to a construction site, could it somehow slip into being permanently acquired for development by the Government themselves? On what basis then would the recompense have been decided? Would that have been a valid recompense?

I think asking these questions through the amendment is more valuable than simply trying to slap the clause down completely, especially as I do not claim to be 100% sure of my ground, but this is potentially quite a dangerous clause that the Government are going to have to justify thoroughly if it is to stand, as it does, part of the Bill at the moment. I beg to move.

I endorse the comments of my noble friend Lord Moylan. I have two questions and observations. First, “temporary” can mean different things to different people. For example, in the context of onshore wind, temporary permission tends to be granted for 25 years, whereas if one is talking about occupation or possession of land, ordinarily one would think of a considerably shorter time. Can the Minister give any elucidation of the intent behind the use of that word in the provision to which the Amendment relates?

Secondly, can reassurance be given on whether the power that Clause 33 proposes to introduce would be used only where lesser alternative forms, such as those existing powers that my noble friend Lord Moylan referred to, would not do the job equally or similarly well?

This Amendment seeks to provide safeguards in legislation to implement powers of temporary possession under the Highways Act 1980. Of course, that Act already contains powers covering the compulsory acquisition of land and rights in and over land. Clause 33 would make it explicit that those powers can also authorise temporary possession.

We are introducing this power because currently in the Highways Act there is no mechanism for the temporary possession and use of land through means of compulsion. Where land is required only on a temporary basis, if access to such land cannot be achieved by agreement with the landowners, the highways authority will seek powers of compulsory acquisition to enable it to use the land. Powers of compulsory acquisition are disproportionate to the needs of highways authorities that need to access the land only temporarily. This measure will offer a more proportionate route, aid land negotiations and provide legal protection to landowners that they will regain their land following the carrying out of works.

The noble Lord, Lord Banner, raised the definition of “temporary”. This is not defined in legislation. It has the meaning of lasting for only a limited period and not permanently. This provides flexibility to the order-making authority and landowner when considering the nature of the powers. He is right that the power would not always be used, because if the land could be temporarily used in another way, the relevant public authority would use that instead.

The noble Lord, Lord Moylan, raised some very important points on compulsory acquisition of land and rights over land. These matters are already embedded within the existing compulsory purchase mechanism that underpins not only the Highways Act 1980 but other infrastructure consenting regimes. For example, land compensation is calculated in accordance with the Land Compensation Act 1961. The legislation sets out the mechanism by which compensation might be calculated and, in the case of dispute, the mechanism for seeking resolution. A suite of published guidance exists to support these established mechanisms. The Highways Act 1980 therefore already embeds an existing and well-founded mechanism for consideration of compulsory acquisition of rights in and over land. The clause would not amend this but simply make it explicit that it applies to powers of temporary possession and occupation, as well as powers to permanently acquire land.

My Lords, the noble Lord would surely agree that those provisions do not cover one of the questions that must arise in the case of temporary possession of land, which is the condition in which you are obliged to return it. Since the permanent acquisition of land by compulsory purchase does not contemplate that it will ever be returned, there will not be any provisions that cover that. This must be another one of the issues. In what condition are you required to return it? That is also addressed in one of my amendments. Surely the Minister cannot claim that prior legislation explicates and resolves all that.

I thank the noble Lord for his Intervention. Since he asked the question, I will write to him about how the condition of the returning land is to be dealt with. In the meantime, I kindly ask him to withdraw his Amendment.

I am sorry to interrupt the Minister, but on that point, Section 252 of the Highways Act allows for a counter notice from somebody where rights over their land have been compulsorily acquired to seek to have their interest in the land purchased. I wonder whether the Government might consider whether the temporary possession of land might also reasonably give rise to an opportunity for a landowner to seek that the land be acquired on a permanent basis.

I thank the noble Lord, Lord Lansley, for that point. He makes a very valid point, and we will go away and consider it. I thank him very much for raising it. I kindly ask the noble Lord, Lord Moylan, to withdraw his Amendment.

My Lords, I regret to say that the Minister has confirmed one’s worst fears about this Clause—that it has created something wholly new and unprecedented and has done so without proper safeguards and without being properly embedded in a piece of legislation that would invite appropriate scrutiny. Rather, it is in a very short clause in a Bill that appears to be about something else. He appears to be saying that, but I have a suspicion from what the noble Lord has said that, actually, something else might be going on: those who have drafted this clause have simply got muddled about the difference between acquiring rights over land, such as way leaves and so forth—necessary for the purpose of construction—and actually acquiring the land itself. Indeed, it is notable that, in the Minister’s response, he gave no reason and no examples as to why it should ever be necessary to acquire the land outright rather than to use the existing provisions available to those who can exercise compulsory purchase powers.

In all candour and friendliness, I suggest to the noble Lord that he consider very carefully whether this clause is necessary—and, indeed, whether it actually achieves what it was intended to achieve in the first place or goes way beyond it. It is certainly the case that, if an Amendment is not tabled by the Government at the next stage of consideration of this Bill, it will be the subject of a very significant and lengthy debate as a result of amendments tabled by this Bench. In the meantime, I would be grateful for your Lordships’ permission to withdraw my amendment.

Amendment 53IA withdrawn.

Clause 33 agreed.

Clauses 34 and 35 agreed.

Clause 36: Duty to hold inquiry or hearing