Localism Bill
House of Lords, 14 July 2011.
Committee (8th Day)
Lord Lucas (Conservative)
My Lords, according to the programme we are supposed to conclude the Committee stage of this Bill on Wednesday after one further day's debate. That does not seem to be a realistic prospect. I would like to make good progress with the Bill and the House has the flexibility to do better than that and to give itself some additional time. We could hoof the Education Bill out of the Moses Room on Monday. We could perhaps use the Moses Room on Tuesday or put the Finance Bill into the Moses Room and use the Chamber on Tuesday. We could sit on Thursday. There seem to be a number of options available to enable us to complete the Committee stage of the Bill before we rise. I very much hope that the Government will be able to tell us which of them they propose to use. One way or another, we are not going to complete it unless we do something.
Lord Tope (Liberal Democrat)
My Lords, I support what the noble Lord, Lord Lucas, said. We might wish to be where we are now but none of us would wish to be where we are with the Bill, if I can make that distinction. We are where we are. We on these Benches remain committed to completing the Committee stage of the Bill as soon as possible. As the noble Lord, Lord Lucas, said, there are a number of options available to enable us to do that before the Recess. We are willing to stay as late as may be on Wednesday evening and if necessary to come back on Thursday or take what other measures can achieve that. It is not for us to determine the progress of other Bills or where they may be taken but we and your Lordships' House can urge the Government and the usual channels to co-operate with each other to ensure that we achieve the objective that we all share: to complete the Committee stage of the Bill as soon as possible before the Recess.
Baroness Gardner of Parkes (Conservative)
My Lords, I, too, support the statement of my noble friend Lord Lucas. It is quite appalling that we have made such little progress. My next amendment is Amendment 149. Today is the eighth day that I have come here believing that we have reached Amendment 149. Instead, as I have said to people, I find 50 other amendments piled in before it. I have counted them while I waited through proceedings on the police Bill, and 125 amendments are piled in before me today. Of those, only three groups have simple numbers, and come from before the first day of the Committee. They are original amendments. Others go as far as Amendment 152ZZA. That seems the most far-reaching number that I have found for any of the other amendments. It is unbelievable how many Zs and things can come up in this. This is a terribly important Bill and the rate of progress has been dreadful. It is very important that we deal with this before the Recess because there is so much work to be done before Report. The Minister and those who have moved amendments will need to do a lot a work before we get to Report. We must finish this before we rise. If we have to sit on Thursday, I am only too happy to do so, or I will sit all night on Wednesday. For the Bill to just drift on in the way that it has is a disgrace to the House.
Lord McKenzie of Luton (Labour)
My Lords, we all share the desire for the Bill to make as speedy a passage through your Lordships' House as possible. It is not up to us or indeed to the Ministers who support the Bill to arrange these things but for the usual channels. The noble Lord, Lord Lucas, in raising the issue talked about being able to reschedule Tuesday and other days in the week. The noble Lord perhaps ought to be mindful that some of us, not just one of us, have commitments under the Welfare Reform Bill as well, which has its Second Reading. We understand that that is a very important Bill for the Government.
I am very clear that we need to do the job properly in scrutinising this Bill. In so far as it might be alleged that there has been delay, it cannot be laid at our door. I do not believe that the noble Lord did that. We still have a lot to get through: most of the planning stuff, some very important housing stuff and issues around London. Frankly, even if we sat right through the night on Wednesday, I do not see that we would conclude by having one more day, particularly as we must have the Third Reading of the Bill that we just sat through. I do not think it is practical.
I really am opposed to sitting through the night when we are discussing a Bill that has a lot of intricacies in it; a lot of it is complex and technical, and we need to deal with it when we have minds that are still relatively fresh. I do not personally see that it would be a great disaster if we picked this up and concluded it when we are back in September. The key thing is that we should have the time to scrutinise the Bill properly and have the time and opportunity to do it when we are at least not all falling asleep on the Benches.
Lord True (Conservative)
I have taken some part in this Bill and, on the basis of having spent 13 rather misspent years in the usual channels, I heard what my noble friend Lord Lucas and others have said about potentially sitting on another day. As other noble Lords have said, I would be very willing to do that to make progress on the Bill. I did not hear the noble Lord opposite express similar willingness.
One thing that I looked up, which might be helpful to these discussions, is what has happened in previous years. This is in fact the earliest date on which the House would rise in July since and including 1996, apart from 2003. If one looks at three separate years after the party opposite formed a Government, in 1998 we were asked to sit until 31 July and noble Lords on this side co-operated; in 2002 we were asked to sit until 30 July and noble Lords on this side co-operated; and in 2006 we were asked to sit until 25 July and noble Lords on this side co-operated. I do not think that it is unreasonable to ask noble Lords opposite to show the same willingness as noble Lords on this side have to allow the usual channels some flexibility in considering not only sitting late but perhaps allowing an extra day to complete this important Bill.
Lord Best (Crossbench)
Perhaps a word could be said from the Cross Benches, too. I have quite a lot of the amendments that might detain us further on. Although we must all accommodate whatever the usual channels decide, it is quite late notice for next Thursday suddenly to be removed from our diaries when we had every reason to expect to be on Recess at that time and had other plans. I, for one, would be letting down an awful lot of other people, which I may have to do if we have to sit next Thursday. If it is of any help-and I am sure that we all have our different preferences-I would be quite prepared to go into all hours of the night on Wednesday night and will try to remain fresh, if that is required of me.
Lord Shutt of Greetland (Liberal Democrat)
My Lords, I thank noble Lords for their contribution. It is not easy, because we had no idea of the exact time when the earlier Bill would conclude today. There were great expectations that there would be a serious amount of time to discuss localism today, but noble Lords in regulating themselves felt that it was important to consider the previous Bill. Those who have been observant will have seen that various noble Lords have been talking off the Floor of the House, as others have been talking on the Floor. If we could make a start on the Localism Bill now, even though there are only 22 minutes before seven o'clock, we could do one or two amendments. That would be sensible.
The usual channels can channel away a little longer and, I hope, make a statement before we conclude tonight. We do have it in our diaries to come here on Monday, Tuesday and Wednesday. The prospect has been put-
Lord Bassam of Brighton (Labour)
It might be for the convenience of the House if we invite the government Chief Whip to make her statement now, because I think it would help us to draw proceedings to a close. I, as ever, wish to be helpful.
Baroness Anelay of St Johns (Conservative)
My Lords, my deputy and I are joined at the hip, like twins. In this occasion, the Gemini were slightly apart, and I had the advantage of being able to have a further conversation with the opposition Chief Whip as well as briefly with the Leader of the Opposition and their spokesman on these matters. The noble Lord, Lord McKenzie, is spokesman not only on this Bill but also on the Welfare Reform Bill, which as he has just this moment said is very important. We have perhaps found a new way forward, which needs further examination but would provide for the inclusion of the Localism Bill next week. It would also meet some of the concerns expressed around the House that, having started the Welfare Reform Bill Second Reading, we would do the Committee stage as soon as we got back in September.
The discussions now afoot would mean that we would do whatever we may within about the 20 minutes or so remaining tonight on the first amendment on the Localism Bill. However, we would expect to continue discussions. The proposal is around the idea that Monday would go ahead as anticipated, with the Fixed-term Parliaments Bill followed by the Finance Bill, but on Tuesday it may well be that instead of the Welfare Reform Bill Second Reading, we could then have a full day on the Localism Bill and on Wednesday, as already scheduled, start the day on the police Bill Third Reading but then move into the Localism Bill, with a fair expectation of being able to conclude that business.
People say that the House of Lords stays the same over centuries, but things can happen in seconds here by agreement. That is one of the interesting things of this place, where there is self-regulation. I know that there is continuing good will on these matters. I think that this is the time when Chief Whips sit down and invite the Convenor and others to come to a meeting to discuss what the impact might be on their Benches.
Lord Bassam of Brighton (Labour)
My Lords, as ever, my door is open for discussions and if there is some small progress this evening and we can carry on discussing next week's business, that would be very helpful.
Baroness Byford (Conservative)
My Lords, I remind the House of my interests, particularly my membership of the CLA. We come to the section of the Bill which causes it and others concern. As I see it, if an area of land is designated as a town or village green, any development on it is prohibited notwithstanding any grant of planning permission. As a result of the changes made by the Commons Act 2006 and a series of court cases, it is now far easier to probe that a particular area is a town or village green than was previously the case. It is of course important that bona fide applications should succeed but, all too often, spurious applications are being made with the aim of overturning the effect of planning permission being granted. I believe that the Minister and his team have been in discussions with the CLA, so I will not go into further detail on that.
However, I have also been contacted by Sue Chalkley from the Hastoe Housing Association, which has raised the issue of vexatious use of the towns and village greens registration system to delay or block legitimate development. It is concerned that such misuse is causing increasing delays and costs to developers. The risk of having land blighted by a TVG application is a considerable deterrent to landowners. In rural communities, this problem is more acute and may well jeopardise the provision of much needed affordable rural housing.
I give but one example: in Marsh Gibbon in Bucks, eight affordable houses were planned, with six for rent and two for shared ownership. A half-acre site was chosen by the parish council and the planners. The field had been farmed for over 200 years, most recently for strip-grazing dairy cattle. Full planning permission was granted in February 2008. The parish councillor and the landowner were adamant that the field was not a village green. A TVG application was made on the whole of the 15-acre field. In June 2010, the inspector's decision came. The TVG application was unsuccessful, but one should be aware that there was a delay of two and a half years at a cost of £80,000 to Hastoe Housing Association.
We need those village developments, as indeed we need developments elsewhere, and I am very concerned that the Bill will not help in that way. In answering a Question on 23 May, my honourable friend Richard Benyon indicated that from 2005 to September 2009, 650 applications were made, 99 were granted and 551 were rejected. I understand that it costs nothing to put in a TVG application, but the costs incurred to the registration authority can be significant. There is a problem and I beg to move.
Earl of Lytton (Crossbench)
I support the noble Baroness, Lady Byford. I, too, am a member of the Country Landowners' Association and a landowner. Briefly, we need to ensure that there is an authentic local view at work here. We need a reasonable level of general support to be established and demonstrated, and we need a coherent and reasoned justification for things to be included as "commons". We do not need national agendas, narrow sectoral bases of arguments, frivolous or vexatious grounds, or to give succour to a no-development ethos. As the noble Baroness rightly pointed out, this is currently capable of being a free bet. That cannot be allowed to continue. There are clearly well-documented instances of abuse of process and therefore I support her in the amendment.
Lord Lucas (Conservative)
My amendment seeks to remedy this difficulty by allowing neighbourhood plans to rule out the creation of village greens that the neighbourhood plan does not recognise.
Lord Best (Crossbench)
My Amendment 170CK, which comes later in the Bill, is not quite as imaginative as the approach of the noble Lord, Lord Lucas. It is a more pedestrian way of dealing with the matter by amending the Commons Act 2006, which is essential. At nominal cost to the applicant, frivolous and vexatious applications can add so much cost and delay to a scheme as to deter the developer or housing association from proceeding. I have personal experience of this, being familiar with a development in York. We were attempting to create a significant new mixed-tenure community of some 540 homes and, despite the council being fully in support of that, havoc was wreaked by a village green application to incorporate the whole of a 53-acre site. It was made on the basis that a local resident had been walking their dog on the site for the past 20 years, thereby meeting the criteria of lawful sport or pastimes. Since the tolerant owner had taken no legal action against them, the case could be made that this large site could possibly be England's largest village green. Although the proposition was in due course thrown out, it involved my charity in considerable frustration, the potential loss of public and private funding, considerable expense and delay of more than a year. A less tenacious developer might well have given up, depriving the city of York of what will be a huge asset for generations to come.
Perhaps I may quote from one landowner in Norfolk, whose perspective has been sent as an illustration by the Hastoe housing association. They state:
"I believe that affordable homes are vital in sustaining rural communities. As a result, when Hastoe with the backing of the parish council approached me about selling them some land, I agreed. Many people retiring from the south-east have moved to this area of Norfolk, raising prices beyond the local people's means and threatening the future of the [village] school ... Unfortunately, this decision to help has resulted in me becoming involved in an extraordinary process that will last several years and cost me many thousands of pounds. What is so frustrating is I have detailed crop records for the past 20 years and an acknowledgement from those claiming the arable field as a village green, that they never walk on it when it is in crop. On top of that, those making the claim have taken more than two years putting in their village green application, are funded by somebody whose main home is not in the village and have refused to reveal themselves to the rest of the village. However, it appears that the law is so badly drafted and open to so much interpretation, that the County Council admits that it is extremely unlikely to throw out the claim until it has gone to Public Inquiry as they do not want to run the risk of having to pay for any legal challenge to their initial decision".
Naturally, this example of big society action by the landowner means that he and no doubt dozens of others are unlikely to part with any land until this overindulgent legislation is reined in.
My amendment looks at the nitty-gritty of the situation and proposes ways in which the law could be amended. I will briefly outline what it says. Amendment 170CK would stop retrospective application for town and village green status after planning consent has been granted, which is currently possible. It would prevent efforts to overwhelm the authority with excessive paperwork, allow authorities to reject vexatious or frivolous applications and allow the recouping of costs in such cases. It would make deregistration possible where a review showed that the village green status had, some time later, become obsolete. I hope that the amendment commends itself to your Lordships and the Minister.
Lord Greaves (Liberal Democrat)
My Lords, I remind the House of the interest that I declared at the beginning of the Committee stage. I am vice-president of the Open Spaces Society, which is the expert voluntary organisation on village and town greens and spends a lot of its time advising people who wish to register greens. It strongly advises people not to do so purely to resist development and not to proceed if the evidence appears to be poor. Not everyone takes that advice, unfortunately.
The amendments attempt to tackle this perceived problem-it is indeed a problem in some areas-by amending this legislation and thereby amending the Commons Act 2006. I suggest that this is probably the wrong time and the wrong legislation to do that. Town and village green legislation, as noble Lords who took part in the discussions of the Commons Act in 2006 will know, is extremely complex and somewhat difficult. Section 15 of that Act laid down a new system for the registration of greens, but that was based upon much older commons legislation, going back to the past, describing what is and is not a green.
I have some questions. Is there an identified problem? Yes. Is it hugely widespread? No, but it is serious where people are abusing the system. Some instances of that have been identified here today and I could provide some more. Does it need sorting out? Yes. Does it need new primary legislation and is this the right Bill to do it? No. As the noble Baroness, Lady Byford, has identified, what is required is an overhaul of the Commons Registration (England) Regulations 2008, which result in a system of greens registration that, in my view and that of the Open Spaces Society, is overly bureaucratic, takes far too long and can be far too costly.
I was involved on the other side, as it were, in an application for a green in Lancashire where Lancashire County Council wanted to build a new secondary school, which I was in support of, and a group of people tried to suggest that the land on which it was being built was a green. I met them, advised them and told them that it was not, but fortunately Lancashire County Council, perhaps because it was a project of its own that was potentially being blocked, was very expeditious in sorting it out. Quite correctly, it rejected the application.
We have a 10-point programme that would greatly improve the green registration system. It could be done simply by secondary legislation by amending the 2008 regulations. I am not suggesting that that is the whole answer and I am not going to tell your Lordships today what all the 10 points are, but we are happy to discuss this with Ministers. They will be Defra Ministers, though, as this is not a CLG matter. Defra is already looking into the problem; it has commissioned research, it is having discussions and it is considering its responses. I hope that on that basis we can let the department get on with it.
There is an understanding on all sides that this is urgent. It is important not to throw the baby out with the bathwater and not destroy the system of registration of town and village greens, which is a very useful process, but to stop people abusing it.
Lord McKenzie of Luton (Labour)
My Lords, we should thank the noble Baroness, Lady Byford, and the noble Lords, Lord Best and Lord Lucas, for identifying and raising this issue this evening. Clearly, as the noble Lord, Lord Greaves, said, we must cherish and support the legislation which enables the identification, reclamation and maintenance of town and village greens. However, there is clearly a problem here. As the noble Lord, Lord Greaves, asks: is there a problem? Yes. Does it need sorting out? Yes it does.
I am not sure that we necessarily have the way forward encapsulated within the amendments before us. The noble Lord, Lord Greaves, has made some interesting suggestions and I will be interested in the Minister's response. The noble Lord, Lord Lucas, offers the prospect of being able to identify and establish a town or village green only through a neighbourhood plan. That seems potentially too restrictive: if you do not have a neighbourhood plan in place, what happens? They will not necessarily be universal.
I side with those who say that a misuse of this legislation is taking place. I accept that it may not be widespread, but it does need sorting out. I look to the Minister to see what solutions he offers.
Earl Attlee (Conservative)
My Lords, I welcome the opportunity to respond to these amendments and the balanced way in which the arguments have been presented to the Committee. Of course, I speak for Her Majesty's Government and not one particular department.
I know that the system for registering new town or village greens is a matter of rising significance to those of us interested in development sites, as well as to local authorities in their role as commons registration authorities. As I shall explain, it is also a matter of considerable interest to this Government.
We recognise the value of the town or village green registration system in safeguarding traditional open spaces in local communities. Government surveys show an increasing trend in applications during the past decade, although not all of these applications are granted. The noble Lord, Lord Greaves, suggested that problems were not widespread, although he agreed that they could be serious. Around 200 applications are made every year to register land in England as greens. The volume of applications, the character of application sites, the controversy which such applications often attract, the cost of the determination process on parties affected and the impact of a successful registration on the landowner are all matters of serious and increasing concern. We are well aware of the difficulties that some registration applications can cause where an application is made in response to advance plans for the development of a site. However, we also appreciate the importance that local communities can place on an open space as well as new development. We understand that there must be confidence that the relevant decision-making processes are working coherently in the interests of the community as a whole and not just in those of a minority.
The natural environment White Paper announced that we will consult on proposals for a new green areas designation that will give local people an opportunity to protect green spaces which have significant importance to their local communities. We are considering what changes to the greens registration system are required in connection with the new designation as a response to the Penfold review, which recommended changes to the registration system to ease non-planning impediments to development.
Amendment 148ZZBB in the name of my noble friend Lady Byford would give the Government powers to achieve a sharper focus in the criteria for registering greens. I have some sympathy with the purpose of the amendment, which could help to address some of the cases where applications have been used as a last resort only to delay development, such as my noble friend has described to us. The noble Lord, Lord Best, asked a question about rural housing. We share the concerns of my noble friend Lady Byford and the noble Lord, Lord Lucas, that the green registration applications can have an unfortunate deterrent effect on the provision of land for rural affordable housing. We are actively looking at whether amendments to the registration criteria are needed. We shall want to hold discussions with those with an interest in our proposals before concluding on the nature of any legislative changes. Legislative changes may be necessary. My noble friend Lord Greaves is right: the registration of a green is indeed a matter of fact. The criteria against which registrations are considered are set in law. There is no discretion. Local communities have no say in whether registering land as a green is desirable or not.
Amendment 148AG in the name of my noble friend Lord Lucas would enable a neighbourhood plan to designate town or village greens but would block the registration of new towns or village greens that had not been so designated. I appreciate why my noble friend has neighbourhood plans in mind when thinking about protecting green areas. We propose that the green spaces to be protected by the new green areas designation can be identified by local communities through their neighbourhood plans. As I have said, we are looking at whether changes to the registration criteria for town or village greens are needed. I should add that we have no plans to weaken protection for existing registered greens, as his amendment would appear to do.
Amendment 170CK in the name of the noble Lord, Lord Best, is quite specific in tackling some of the concerns of local authorities that deal with greens applications. Here, too, I say to the noble Lord that we understand the frustration experienced by local authorities and others in dealing with certain greens applications, which may be seen as a last ditch defence against development. I believe there is a consensus that local authorities should be able swiftly to reject vexatious applications. We are certainly looking at that. However, I am not confident that this amendment necessarily adopts the best approach in every case. We certainly do not think it is right to open existing registrations to re-examination, as the proposed new Section 15A would do. However, we are actively reviewing the way in which new greens are registered.
My noble friends and the noble Lord may feel that we have taken too long over our deliberations on whether changes to the registration criteria for town or village greens are needed. I agree with them, but I very much hope that we shall be able to announce our conclusions later this summer, and that my noble friends and the noble Lord will see that those conclusions respond to many of the concerns raised tonight. Given this assurance, I hope that the amendment can be withdrawn.
Baroness Byford (Conservative)
My Lords, I thank the Minister for his, I think, encouraging and detailed response. There are clearly difficulties. Indeed, my noble friend Lord Greaves accepted that 551 rejected schemes means a great trial for each of those individuals who had to go through the process. They are very costly and a great deterrent to landowners opening up some of their land to future development, particularly for affordable rural housing, as we hope they will. However, I am grateful to noble Earl and particularly pleased that there will be ongoing discussions. I hope we may have some news later in the summer, perhaps before the Bill is passed. With those few comments, I beg leave to withdraw my amendment.
Amendment 148ZZBB withdrawn.
Clause 100 : Use of Community Infrastructure Levy
Amendments 148ZZBBA and 148ZZBBB not moved.
Amendment 148ZZBBBA
Moved by Lord Jenkin of Roding
148ZZBBBA: Clause 100, page 79, leave out line 20 and insert-
"(b) providing that which CIL provided initially under paragraph (a) on an ongoing basis."
Lord Jenkin of Roding (Conservative)
In moving this amendment, I wish to discuss the other two with which it is grouped. I tabled these amendments before we had the debate last Tuesday in which we discussed the application of the community infrastructure levy. Anxieties had already been aroused with regard to the original purpose of the levy being altered. My noble friend Lord Attlee spelt out that purpose very correctly. It is meant to support infrastructure development and be paid by the developer of a facility such as housing or industry. My noble friend Lord Greaves had moved an amendment which would widen the permitted use of the levy receipts beyond infrastructure matters that support the development of the area. My noble friend Lord Attlee said:
"We want to reflect on whether continuing to limit spending solely to providing infrastructure restricts local authorities' ability to support and enable development of the area".-[Official Report, 12/7/11; col. 707.]
He went on to say:
"We want to reflect on the amendments proposed by my noble friends Lord Greaves and Lord Tope to allow the spending of the levy on matters other than infrastructure".-[Official Report, 12/7/11; cols. 709.]
These words have aroused considerable anxiety. I have a copy of a letter written yesterday by the Institution of Civil Engineers to the Secretary of State. The letter was copied to my right honourable friend Greg Clark and my noble friend Lord Attlee. The institution's chairman wrote:
"I am writing to highlight concerns regarding the Government's undertaking to reflect on allowing the use of the Community Infrastructure Levy on matters other than infrastructure. The Levy was specifically conceived and justified to provide for new and upgraded infrastructure-a point reinforced by the Government many times".
Indeed, they did so most recently last Tuesday through my noble friend Lord Attlee.
The purpose of these three amendments is to try to get clarification on three specific issues. First, Amendment 148ZZBBBA seeks to ensure that the application of CIL is confined to the provision and maintenance of an infrastructure project which is in an approved charging schedule, on the ground that that fulfils the original purpose of the introduction of the CIL. The institution believes-I accept the case that was made on Tuesday and is in the Bill-that this should include what is called in the Bill "ongoing expenditure", which I understand to mean the maintenance of an approved infrastructure project financed by CIL. I hope that my noble friend can give me a very clear undertaking that there is no question of this levy being used simply to fill a revenue hole in a local authority's budget. It has to be confined to the provision and maintenance of an infrastructure project.
My second point has been touched on but I would like to be given a much needed assurance. There are plenty of examples of where developers have agreed to make a contribution under Section 106 of the Town and Country Planning Act 1990. If a developer has made such an agreement-sometimes it can last for a number of years-he should not be charged the CIL in addition. I hope that my noble friend can give me a clear undertaking on that. It was briefly discussed, and if we had not risen when we did on Tuesday, I would have intervened, because I was expecting to move the amendment on Tuesday night. I said, "Let's wait until I am speaking".
My third point concerns the suggestion of compensating communities by allowing CIL receipts to be passed to other persons. I do not quarrel with that-although I know that some object-but it must be spent on infrastructure projects. It must not be allowed to be a financial recompense paid to a community because it has development in its area. I hope that my noble friend can give me a clear assurance on that.
My final point is that the area must not be too tightly defined. There is anxiety that that may be the effect of the Bill. For instance, if the money has to be spent in the area, how will that fund a bypass which may be necessary as a result of the development, or flood defences, which may have to happen well outside the area but is clearly for its benefit?
I have asked a number of questions, and I do not think that I need to go on longer. Those are seen as serious issues by those concerned with re-establishing our infrastructure in this country. I took part in the original debate on the CIL when the 2008 Bill was going through the House. Indeed, I tried to ensure that both Houses would be able to approve the delegated legislation under it. I carried that in this House, but it was turned down by the then Leader of the House in another place. I have a considerable interest in making sure that we get this right. I beg to move.
Lord Berkeley (Labour)
My Lords, I am very pleased to support the noble Lord, Lord Jenkin of Roding, on this group of amendments. He has articulated very well the problems which the CIL could cause developers. It is particularly important for bigger projects, which might be taken through a hybrid Bill process, through the IPC or the Transport and Works Act, where the decisions are effectively made by Ministers. Ministers will approve-or not-a deal which ends up as a Section 106 agreement. The worry is that, completely separately, the local authority might want to put a CIL charge on the project. One must think of the effect on business confidence when considering ports, airports, logistics centres, railways, roads, power stations or anything else of that size, and of the figures involved.
The people who run Gatwick Airport have told us that they are committed under a Section 106 agreement to contribute about £1 million annually to public transport via a levy on their car park revenues. If they had also been required to pay a CIL to the local authority-probably retrospectively, because it may well have happened after the Section 106 agreement was signed-they would not know what liability they would be stung for, frankly. To give two bigger examples, Hutchison Ports had a Section 106 agreement to extend the ports at both Felixstowe and Bathside Bay. It was committed under the agreement to spend about £100 million on upgrading the railway line to Leeds. We can question why it should be Leeds, but that is what was agreed. I think that the London Gateway port project, downstream on the Thames, had to contribute a similar amount for road improvements between there and the M25. If, having signed up to all that, they are suddenly stung for a CIL, it will put off developers from going ahead with these projects. It is after all the Government's wish to develop new projects-I return again to the Secretary of State for Transport's plan to build a high-speed railway line to Birmingham and beyond. You can imagine that people in villages along the route who do not like the plan, having had their referendum to vote against it, will then try to sting the promoters, whoever they may be, for a CIL. It could get quite interesting. It will put off business and I hope that when the Minister responds he can strengthen the assurance that was given in another place that a CIL will not be levied on projects for which a Section 106 agreement has been entered into and agreed.
Lord Greaves (Liberal Democrat)
There is a great deal of sense in that. Some of the difficulty is the muddle between Section 106 agreements and the community infrastructure levy, but it is the clear intention-it was the clear intention of the previous Government and I assume that that has not changed-to phase out Section 106 and replace it with CIL. The difficulty with that is that it brings levies and what they might be used for down to a quite small-scale local level. Large infrastructure projects are one thing, and I agree with many of the comments made by the noble Lord, Lord Berkeley, about that, but there are big projects, small projects and projects in-between. The amount of CIL that would be levied on many local development projects is quite small. Unless it can be seen as a replacement for Section 106 for the kind of things that Section 106 is spent on, and perhaps some further flexibility, a great deal will be lost. It is difficult to find ways of spending those relatively small amounts of money on things that might be classified as infrastructure.
One large-scale thing that Section 106 has been important in subsidising and helping to develop is affordable housing. We have had a debate about that and the Government have said that they are looking seriously at allowing CIL to be used for affordable housing. Affordable housing is not really infrastructure, apart from for the people living in a particular house. It is development that needs infrastructure around it. Classic cases of Section 106 funding include subsidising local bus services, whether it is a service to a new supermarket or a new estate. It is not infrastructure. Lots of local amenity areas, playgrounds, and so on, have been paid for out of Section 106. Are they infrastructure? A common-sense use of the word would suggest that they are not. Unless the levies can be used from local developments on this kind of thing, local authorities will find it much more difficult to provide them. Often new housing is developed by converting a mill into flats and then improving some of the areas around, which are pretty run down, by turning them into nice amenity areas and playgrounds, which is very important and linked to the development.
We have a new supermarket, which released £390,000 under Section 106 to spend on the local town centre. A lot of the spending on that town centre could not be described as infrastructure. It is about improving the appearance, relaying flags and grassed areas, improving shop fronts, and so on, which is all very important in helping the town centre compete with the new supermarket and hold its own, but is it infrastructure? My right honourable friend Simon Hughes suggested that double glazing might be an appropriate use of CIL from local projects. That is not infrastructure, but it is the kind of area in which we hope for some flexibility. I am not sure that we are that far apart. Clearly if a project is big enough to pay for a bypass, that is certainly infrastructure. However, we need flexibility.
Lord McKenzie of Luton (Labour)
My Lords, as I indicated to the noble Lord, Lord Jenkin, we support the thrust of these amendments. Certainly I agree that CIL must not be used to fill revenue holes in the budgets of local authorities. A specific assurance on that from the Minister would be entirely appropriate.
When we debated this last week, our concern was about the interaction of CIL, Section 106 and affordable housing. As the noble Lord, Lord Greaves, said, the Minister indicated possible flexibility in future after consultation. We welcome that. We also agree with the noble Lord, Lord Jenkin, that if part of CIL is to be paid to a neighbourhood forum, for example, it must be linked to infrastructure. We would prefer the decision to be made by the local authority rather than dictated according to an arrangement of the Secretary of State.
The definition of infrastructure for these purposes in paragraph 12 of the CLG book, Community Infrastructure Levy: an Overview, published in May this year, states, surprisingly:
"The Planning Act 2008 provides a wide definition of the infrastructure which can be funded by the levy, including transport, flood defences, schools, hospitals, and other health and social care facilities. This definition allows the levy to be used to fund a very broad range of facilities such as play areas, parks and green spaces, cultural and sports facilities, district heating schemes and police stations and other community safety facilities. This gives local communities flexibility to choose what infrastructure they need to deliver their development plan".
There is already quite wide discretion in the rules.
I particularly support the point about potential double charging when a development has already entered into Section 106 obligations, some of which may be very long-term. Like my noble friend Lord Berkeley, we had discussions with Gatwick. However, this is not just an airport or a Gatwick issue.
I am not sure how best to resolve this issue. Part of the solution may relate to how and at what point CIL is charged. I understand that what triggers it is the commencement of development that has been the subject of some form of planning permission. Therefore, in a situation in which Section 106 obligations are already in place from prior development, I do not see how under the rules that could trigger a new CIL charge. However, any new development might, so Section 106 and CIL could still be paid at the same time. The potential for double charging is an issue, and I look forward to the Minister's response on that. However, the thrust of this is exactly right and we support it.
Earl Attlee (Conservative)
My Lords, Amendment 148ZZBBBA, moved by my noble friend Lord Jenkin of Roding, seeks to limit spending on the ongoing costs of providing infrastructure to those items that were originally funded by the levy. New developments may create additional demands on existing infrastructure as well as demands for new infrastructure. The amendment would prevent local authorities from using levy receipts to address the intensification of demand on existing infrastructure, despite the fact that this could be exactly what is needed to support a new development.
My noble friend's Amendment 148ZZC seeks an exemption from the levy for any development that makes a contribution to existing infrastructure through Section 106 planning obligations. This is not appropriate as the two instruments are concerned with different aspects of development. Through the levy, most new development would contribute towards the cost of meeting the cumulative demands that development of an area places on infrastructure. Conversely, planning obligations are concerned only with the site-specific matters necessary to make a particular development acceptable in planning terms.
Local infrastructure may or may not be part of the planning obligation. Where it is any part of a planning obligation, it must satisfy the statutory tests that ensure that they are necessary to make the development acceptable, are directly related to the development and are fairly related in scale and kind. We do not believe that it is appropriate to exempt development that is subject to a planning obligation from making a contribution to the more general infrastructure demands that it places on the area. In addition, the existing legislation already prevents developers being charged twice for the same item of infrastructure through both instruments. That answers the concern of the noble Lord, Lord Berkeley. I will check to make sure that it also answers the concern of the noble Lord, Lord McKenzie. I am not absolutely certain that it does, but I will check, and I am sure we will return to this at a later stage.
Lord Berkeley (Labour)
The port down the Thames-London Gateway-committed probably £100 million to upgrade the junctions on the roads and the motorway leading to the M25 to cope with additional traffic reported to be coming from its development. I understood the Minister to say that that is exactly what the CIL might be required to do. I see that as double taxation.
Earl Attlee (Conservative)
My Lords, I think that I will come to a point later in my speech that should deal with the noble Lord's concerns.
My noble friend Lord Jenkin also proposes Amendment 148ZZD, the effect of which would be that where regulations require the charging authority to pass funds to another body, it would retain ultimate control over how those resources are used by confining spending to matters it determines appropriate.
Lord Jenkin of Roding (Conservative)
It is a question not of control but of what the funds can be spent on. That is what I am asking. If it is going to pass the resources to somebody else, it is with the purpose of giving the somebody else the opportunity to spend them. What I have argued is that it must be infrastructure, whether initial or ongoing. Will my noble friend not accept that?
Earl Attlee (Conservative)
I am grateful to my noble friend. I hope that when I have finished my speech, he will be a little bit more satisfied.
We intend to use the powers of Clause 100 to require charging authorities to allocate a meaningful proportion of any revenue generated from development in an area to the parish or community council for that area. The local council will be free to determine how those funds are used to address the demands that the new development will place on its infrastructure. This amendment seeks to take control away from those local councils and the communities that are being asked to accept the new development and will significantly reduce the incentive effect of these changes.
My noble friend Lord Jenkin asked whether CIL can be passed to others on condition that it is spent on infrastructure. Where CIL is passed to another body, it must be spent on infrastructure to support the development of that area. I think I have repeated that answer.
Lord Greaves (Liberal Democrat)
Will my noble friend confirm that passing those resources to other bodies will occur only in the case of parish and town councils, and community councils in Wales, and that they will not be passed to neighbourhood forums or any other organisations?
Earl Attlee (Conservative)
My Lords, that is a slightly technical question for me, but I will write to the noble Lord on it, unless inspiration comes quickly.
My noble friend Lord Jenkin of Roding and the noble Lord, Lord McKenzie, asked whether such resource will be used to meet local government shortfalls. We have clearly set out that the purpose of the levy is, and must continue to be, to support development. I can assure noble Lords that the money cannot be substituted for general local government spending.
My noble friend Lord Jenkin asked the Government to consider greater flexibility in the use of CIL. We will consider whether allowing spending on infrastructure and other matters could improve the levy's ability to support development. We agree that infrastructure is vital to supporting new growth and development but we do not accept that it is necessarily all that is needed. We will reflect on that and return to it at a later stage.
The noble Lord, Lord Berkeley, suggested that strategic developments such as ports et cetera might be prevented from going ahead due to charging under both instruments. CIL applies to new buildings. It does not apply to buildings where people do not normally go, such as power stations, ports, service areas of airports et cetera.
I am grateful for the input of my noble friend Lord Greaves. He asked whether CIL could be spent on playgrounds and bus routes, as the funds from Section 106 agreements can be. The short answer is yes. The Act does not define the term infrastructure exclusively and it is therefore wide as to what could be considered infrastructure. The answer to the noble Lord's recent question is yes.
The noble Lord, Lord Berkeley, suggested that there could be double taxation through Section 106 and through CIL. There is no double tax. Developers may not be charged twice for the same thing.
I have seen today the letter that my noble friend Lord Jenkin referred to. We are considering it carefully. I have no doubt that my noble friend will return to this matter on Report. By that time we will have considered the letter and these matters further, and of course I look forward to further debate. In the mean time, I hope that my noble friend is willing to withdraw his amendments.
Lord Berkeley (Labour)
The noble Lord, Lord Greaves, suggested that Section 106 might be being phased out. Is that correct?
Earl Attlee (Conservative)
No.
Lord Jenkin of Roding (Conservative)
My Lords, I have listened to my noble friend with great care. I shall clearly want to read very carefully what he has said. I realise that we asked him a number of questions for which he perhaps did not have the original briefing. I do not think that what he has said today will provide any comfort to the bodies that have been very concerned about the provisions in the Bill.
The provision in Section 216 of the original 2008 Act uses the word "includes", but this has always been taken to mean, "This is what it is". The purpose of the clause of the Bill is to extend it: that is, the regulation is taken and the powers are there for ongoing expenditure-we have accepted that. However, the question is: can it be extended to something that is not infrastructure? I contend that the original intention of the Act was perfectly clear and that the answer to that has to be no. My noble friend Lord Greaves thinks that it ought to be spent on things like double glazing. I totally disagree. This is not infrastructure in any conceivable sense of the word, and therefore he put forward an amendment to say that it should be used for other forms of development. My noble friend replied to that on Monday by saying that he was going to look at it and reflect on it.
The people who are really concerned with getting on with building infrastructure, and I quoted from the Institute of Civil Engineers, are really very concerned about this, because this is not what was said when the Bill was introduced in 2008. We have to be very careful. We are talking about very large sums of money. I was very grateful for the support of the noble Lord, Lord Berkeley. He made the point that some of these projects are very large. The ICE estimates that the CIL income by 2016 will be around £1 billion a year, so we are not talking about peanuts, we are talking about very large sums indeed. We have to get it right. My noble friends have said that they will consider this and, I hope, be able to meet with some of those who are genuinely concerned before we have to deal with it on Report. What is perfectly clear is that this is not a satisfactory state of affairs at the moment. I will certainly want to return to it, but in the mean time I hope that we can have a meeting to which I can bring along some of the advisers who have been helping me with this, and that we can talk to the departmental officials. It really has to be dealt with so that the position is clear. As I say, we are talking about large sums of investment money. If you are going to have investment, there has to be certainty so that people know where they stand. I beg leave to withdraw the amendment.
Amendment 148ZZBBBA withdrawn.
Amendments 148ZZBBC and 148ZZC not moved.
House resumed.
Lord Shutt of Greetland (Liberal Democrat)
My Lords, it may be helpful if I make the point that it is very much the Government's hope and expectation to publish the forthcoming business early tomorrow. It will set out the programme for next week and, indeed, for the two weeks in September. It has not been possible to be absolutely certain about this because at least one of the participants, particularly as far as September is concerned, has been taking part in the debate, and a little more consultation has to take place. However, it is expected that the forthcoming business can be produced by tomorrow.
Lord Jenkin of Roding (Conservative)
Does that mean that we will be taking the Localism Bill next Tuesday?
Lord Shutt of Greetland (Liberal Democrat)
My Lords, I believe that that is exactly what will be in the document on our forthcoming business, but there will be other features too. However, as noble Lords heard earlier, it is the hope and expectation that the Localism Bill will be the major business next Tuesday and, indeed, on Wednesday.
Lord McAvoy (Labour)
I said there was a thread running through the amendments.
Baroness Garden of Frognal (Liberal Democrat)
I apologise for intervening on the noble Lord, but we have a group coming later that is all to do with faith and religious worship. I think the comments that he is making might possibly be more appropriate when we come to the next group. Given the lateness of the hour, we might perhaps let the Opposition and the Minister wind up this particular debate, but focusing on PSHE rather than the broader issues of faith.
Lord McAvoy (Labour)
Very briefly, in response to the Minister, I have not said much different from my noble friend Lady Massey, so it seems to me a strange distinction that she is making. But if it is the will of the Committee that I shut up and sit down, tell me. It is? That is fine.
The Office of the Official Report apologises for any difficulties caused by this omission.