Power to take temporary possession of land

Neighbourhood Planning Bill – in a Public Bill Committee am 4:30 pm ar 25 Hydref 2016.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Housing) 4:30, 25 Hydref 2016

I beg to move amendment 30, in clause 9, page 8, line 23, at end insert—

“(2A) The power of temporary possession of leasehold interests is not available if an interest would terminate within one year of the date on which the authority intends to hand back possession to the occupier.”

This amendment would establish a limitation on the temporary possession of leasehold interests.

Having been at the dizzy heights of permitted development, we turn to the really exciting bit of the Bill—the changes that the Government wish to make to the compulsory purchase order system. This is where we get particularly excited about the Government’s reading of the Lyons report, which recommended a major look at this country’s CPO system, with the particular intention of simplifying it and making it much easier for local government to operate.

Several of the people who gave evidence to the Committee seemed to suggest that the proposed changes to the compulsory purchase system were okay as far as they went, but that the Government could have used the opportunity provided by the Bill to do something much more substantial. However, people did express some concern about how the Government were taking simplification and rationalisation forward with regard to the power to take temporary possession in clause 9. Amendments 30 and 31 relate to temporary compulsory purchase, to which we do not object per se, but nevertheless we wonder whether, in pursuing the changes, the Minister should put in place further safeguards.

Some general concerns were expressed in the evidence received by the Committee about the interaction between temporary and permanent possessions. Witnesses just did not think that that had been suitably clarified. Richard Asher of the Royal Institute of Chartered Surveyors told us:

“There is one area of difficulty: the danger that authorities may use powers to acquire land compulsorily when it is only required on a temporary basis. That interferes with long-term prospects for development by landowners, whose development plans are quite often disrupted by compulsory purchase on a temporary basis. That needs to be considered to ensure that authorities only acquire land on a temporary basis when it is required temporarily.”––[Official Report, Neighbourhood Planning Public Bill Committee, 18 October 2016; c. 61-62, Q113.]

Similarly, Colin Cottage from the Compulsory Purchase Association said:

“There is still the possibility of taking both temporary and permanent possession, and that will create uncertainty for people affected by it, because, even if there is a period of temporary possession, it may be converted at a future date to permanent possession and they will have no control over that.”––[Official Report, Neighbourhood Planning Public Bill Committee, 18 October 2016; c. 66, Q117.]

Amendment 30 is a probing amendment that seeks to gain some clarification on whether the Minister thinks there should be a limitation on the temporary possession of leasehold interests so that there may be a greater degree of certainty in this area for the landowner, for the local authority and, indeed, for any possible future developer.

Some specific problems seemed to emerge on the temporary possession of leasehold land. The CPA pointed to those concerns in its written evidence:

“We are concerned that there should be limitations on the power to acquire short leasehold or other subordinate interests because the Bill does not deal with the situation where a leaseholder remains responsible to the landlord for the use, repair and payment of rent under the lease but is not in control of the property whilst it is under temporary use. The area is complex and clarity of the relative parties’ obligations to each other must be clarified in a leasehold situation where temporary possession powers are exercised.”

That was reiterated by Colin Cottage of the CPA when he said that,

“there are practical issues with temporary possession that need to be dealt with, including the interrelationships between different tenures in land, how to deal with an occupier of land when that land is taken temporarily, and what to do if buildings have to be demolished and so on. Those issues can be overcome, but they need to be looked at carefully if the Bill is to come into law and to not cause, rather than solve, problems.”––[Official Report, Neighbourhood Planning Public Bill Committee, 18 October 2016; c. 62, Q113.]

Those problems might be experienced by either the landowners or the local authority.

I hope the Minister will be able to answer some of the questions about the nature of temporary possessions, particularly with regard to leaseholds, and whether there might be some limitation on the timeframe. More generally, it is clear from some of the evidence we received that CPO legislation needs serious reform. The witness from the RICS said:

“I believe, and the Royal Institution of Chartered Surveyors has always believed, that codification of the whole of the CPO rules, which go back to 1845 and are highly complex, would be a sensible way forward. I think the simplification of the rules for CPO would be a major step forward…I think the complexity often deters people—particularly local authorities, in my experience—from using CPO powers. It also results in a number of CPOs being refused or rejected by the courts because of the complexity of the rules that surround them.”––[Official Report, Neighbourhood Planning Public Bill Committee, 18 October 2016; c. 63, Q114.]

That was echoed, again, by Colin Cottage of the CPA in answer to my question about whether the Bill was likely to result in more land for development. Given that the Government are meant to be coming up with ways to get more housing delivered, and assuming that the reform of CPOs might be one of the measures that the Government are trying to use to get more land into the development system, Colin Cottage’s answer to my question would probably have been of some concern to the Minister. When I asked whether the changes in the Bill were likely to bring forward more land for development through the CPO process, he said:

“My short answer to your question is no”,


“possibly they will not. There are more underlying problems with the system. It is lengthy. It is uncertain for all parties—both for acquiring authorities and for the people affected by it…The existing system is not helpful for reaching quick solutions. In fact, in many ways it encourages people to be fighting with each other from the outset. Ultimately, that increases the uncertainty, conflict and cost.”––[Official Report, Neighbourhood Planning Public Bill Committee, 18 October 2016; c. 63-64, Q114.]

In Labour’s Lyons review, which the Government are already familiar with, we outlined the need to update legislation on compulsory purchase orders to make them a more effective tool to drive regeneration and to unlock planned development. I will not go through the Lyons review for this particular amendment—I will come to it later in our deliberations—but, for the purposes of what the Government are seeking to achieve through the clause, they might have wanted to look at ways of simply speeding up and clarifying the CPO system for local authorities and others.

Temporary possession of land might be helpful, very much at the margins, but what we seemed to hear from people giving evidence to the Committee was that it was just as likely to cause other problems or simply not be clear enough to enable local authorities and the people whose land was affected to have assurances about the nature of the temporary possession. Furthermore, they thought that the lack of particular timeframes could bring additional problems and leave, in particular, people who have liabilities for a site in a very unfortunate situation. They might have liabilities based on the current use of the site, but its temporary acquisition might mean that they still had to discharge some of those liabilities without being in control of the property.

The purpose of amendment 30, therefore, is to tease out from the Minister whether the Government thought about such a set of circumstances and what they wish to do about them.

Photo of Gavin Barwell Gavin Barwell Minister of State (Department for Communities and Local Government) (Housing, Planning and London) 4:45, 25 Hydref 2016

We have now moved on to the CPO section of the Bill. A number of clauses relate to those provisions. Let me address a couple of the points that the hon. Lady made right at the outset.

The hon. Lady is right to say that several witnesses said that they would be interested to see a more fundamental reform of the CPO system, and I am certainly interested in talking to people about that, but I do not think that that should preclude some sensible reforms to simplify the system now, to make it clearer, fairer and faster. We can then have a longer-term debate about a more radical reform.

On whether more homes will be delivered, I do not think that anyone claims this particular reform to be a game changer. However, I believe that simplifying the system will make it easier for local authorities to make use of those powers. I speak from some experience because my own local authority recently embarked on a significant compulsory purchase order in relation to the redevelopment of the Whitgift Centre in the centre of Croydon.

Amendment 30 would amend clause 9, “Power to take temporary possession of land”, so it might help if I briefly explain the purpose of the clause. All acquiring authorities may need to enter and use land for a temporary period to help to deliver development for which they have made a compulsory purchase order; for example, they may require land to store construction materials for the scheme or to provide access to the construction site. At present, however, only certain acquiring authorities—such as those authorised under special Acts for very large schemes, such as the Crossrail Act 2008—have the compulsory power to occupy and use land on a temporary basis. Crucially, compulsory purchase orders cannot authorise temporary possession.

Clauses 9 to 21 will give all acquiring authorities the power to take temporary possession of land needed to deliver their scheme. At the same time, they will ensure that those whose land is taken are fairly compensated, and that appropriate safeguards are in place to protect their interests. The hon. Member for City of Durham quoted a witness who said that we needed to ensure that when land is required only temporarily, only a temporary occupation is taken. That is precisely why the clauses are in the Bill: to ensure that all acquiring authorities can take both permanent and temporary possession. Clause 9 sets out who may exercise the new power; essentially, everyone with the power to acquire land, either by compulsion or agreement, will have the power to take temporary possession of land for purposes associated with the development scheme for which they need compulsory acquisition.

I agree with the hon. Member for City of Durham that we need to ensure that the interests of leaseholders are adequately protected in introducing this power. However, I believe that amendment 30 is unnecessary, because we have already built in a safeguard that will deliver the outcome she is looking for but in a more flexible way. Her amendment would restrict the temporary possession power so that it could never be used if a leasehold interest had less than a year to run after the land was handed back. It is completely understandable why she wishes to do that, but her amendment would mean—this is quite complicated, so I hope Members will bear with me—that if the land was essential to the delivery of the scheme, the acquiring authority would have to seek to acquire the leasehold interest by compulsion. At the same time, given that there would still be a need to occupy the land on a temporary basis to implement the scheme, the authority would have to seek temporary possession of the freehold interest and any other longer leasehold interests in the same land. That would be contrary to the established principle that the authorising instrument deals with the need for the land, while the interests in the land are dealt with afterwards. It would make the authorising instrument more complicated, because it would have to deal with different interests in different ways for that plot of land. It would also restrict the leaseholder’s options, because they might be content for temporary possession to go ahead.

There is a problem and the hon. Lady has rightly put her finger on it, but we have tried to build in a safeguard that I believe will achieve the outcome she seeks in a different way. That safeguard is clause 12(3), which allows leaseholders who are not content with the situation to

“give the acquiring authority a counter-notice which provides that the authority may not take temporary possession of the land.”

On receipt of that counter-notice, if the land is essential to the delivery of the scheme, the acquiring authority will have to look into taking it permanently. That is a neater solution. because it will give leaseholders the flexibility to decide whether they are content with what the acquiring authority sought to do or whether they have concerns and want to serve a counter-notice. I therefore ask the hon. Lady to withdraw her amendment.

Before I take my seat, it might help if I briefly respond on a couple of wider issues that the hon. Lady raised in relation to clause 9 and to temporary possession in general. She is right to say that some witnesses questioned whether being able to take both temporary and compulsory acquisition over the same piece of land would work. The Government believe that there may be circumstances in which that is required. It would be for an acquiring authority to make the case to the confirming authority that it was necessary. For example, temporary possession of a large field might be needed for a working compound for construction of a pipeline, but compulsory acquisition of a small part of the field might be required on a permanent basis to install and then maintain the pipeline. Actually, there are some good historical examples. Compulsory purchase and temporary possession powers are often sought in relation to the same land in development consent orders. To give two examples, the docklands light railway extension and the Nottingham tram system both involved a mixture of those powers.

There was one other point that the hon. Lady referred to that I probably need to respond to. Her amendment deals with the issue of a minimum time—what happens to a leaseholder when they reacquire their land and there is less than a year left on the lease—but she was also probing about whether there should be a maximum period of time for which somebody could take temporary possession of land.

No maximum period is set in the legislation, because circumstances can vary a great deal from case to case; however, acquiring authorities must specify the total period of time for which they need temporary possession at the outset of the authorising instrument. The confirming authority will then consider whether the acquiring authority’s justification for the length of temporary possession is strong enough before deciding whether to authorise it. There are some safeguards built in. Both freeholders and leaseholders can serve a counter-notice on an acquiring authority, requiring them to limit the temporary possession period to 12 months when the land is part of a dwelling, or to six years in any other situation. Again, leaseholders have the ability to serve a counter-notice provided that the acquiring authority cannot take temporary possession of the land at all, in which case the acquiring authority would have to look at taking permanent possession.

This is a complicated area, but I hope I have been clear—maybe not.

Photo of Jim McMahon Jim McMahon Shadow Minister (Communities and Local Government) (Devolution)

I am not usually a suspicious person, but during that contribution there was a voice at the back of my head saying, “Is this all about fracking?” Is this about the Government’s newfound commitment to fracking and about trying to remove landowners’ rights, trying to create temporary compounds and trying to create opportunities to drill without going through the full and proper procedure? That may not be for today, but I would certainly appreciate the position on that in writing.

Photo of Gavin Barwell Gavin Barwell Minister of State (Department for Communities and Local Government) (Housing, Planning and London)

I am happy to write to the hon. Gentleman and provide him with a full response to that question. I can reassure him that these provisions do not come from that particular policy area. It was before my time—I am looking for inspiration—but I think I am right in saying that there were compulsory purchase provisions in the Housing and Planning Act 2016. It was in the discussion and debate around those provisions that these issues got raised, and that is why the Government are seeking to clarify the law in that regard. I will happily write to the hon. Gentleman and hope that I have now addressed the points that the hon. Lady raised, so I ask her to withdraw the amendment and hope the clause can stand part of the Bill.

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Housing)

I listened carefully to what the Minister had to say. I did emphasise that this is very much a probing amendment, testing whether the Minister and his Department had thought through some of the possible complexities that could arise with a temporary possession and a more permanent possession going through at the same time, and also some of the difficulties that might arise for landowners when a temporary possession is granted but they still have liabilities.

In the main, the Minister’s comments were quite reassuring. I am still not sure whether there is a need to have an overall time limit on temporary possession, to make sure that local authorities do not use it as a way of letting things run forward without having to put a full application for a CPO in place. I want to think about that; I will do so and will consult the Compulsory Purchase Association. For the moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 ordered to stand part of the Bill.

Clause 10