Counter-notice

Neighbourhood Planning Bill – in a Public Bill Committee am 11:30 am ar 27 Hydref 2016.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Housing) 11:30, 27 Hydref 2016

I beg to move amendment 31, in clause 12, page 10, line 10, leave out “6” and insert “3”

This amendment would reduce the length of time that an acquiring authority can take temporary possession of land.

It is a pleasure to serve under your chairmanship, Mr Bone. Amendment 31 would reduce the length of time that an acquiring authority can take temporary possession of land for. It is very similar to amendment 30, in that it aims to provide a degree more certainty for owners about what temporary possession means. At present, the Bill states that the amount of time that an owner—defined as having either a freehold or leasehold interest in the land—can limit temporary possession to by means of a counter-notice is 12 months where the land is or is part of a dwelling and six years in any other case, or else the acquiring authority must take further action.

The amendment would allow owners to limit the amount of time that land can be temporarily possessed, where it is not a dwelling, to three rather than six years. Our position reflects that of the Compulsory Purchase Association, which said in evidence,

“we feel that, for freehold owners, six years is too long. Three years as a maximum is better. Notwithstanding that, the ability to serve counter-notices is correct and encouraging to development.”

I want to stress that point to the Minister. It is not the counter-notice period as such that we have a problem with, but the length of it. The CPA went on:

“Six years is quite a long period. If a business is dispossessed of its property for six years, that is effectively almost as good as a permanent dispossession”.––[Official Report, Neighbourhood Planning Public Bill Committee, 18 October 2016; c. 66, Q117.]

If a business is away from its premises for six years, it will essentially have to completely restart the business somewhere else. One would assume that it will feel much more like a permanent relocation if it is away in excess of five years.

The IPD UK lease events review 2015, which was sponsored by Strutt and Parker and the British Property Federation, pointed to short-term leases of five years or less being particularly desirable for smaller commercial leases, stating:

“Flexibility remains key for many tenants, despite the lengthening of commercial leases, with 73% of total leases signed so far in 2015 for a term of between one and five years.”

Allowing counter-notices to be served that limit temporary possession to three years, rather than six, relates more directly to the reality of a lease’s lifespan, particularly for a small business. The whole point here is that if a lot of leases are five years in length and businesses are required to move for six years, it is very likely that a substantial number of those businesses will have lost the lease on the original premises and had to take out a lease on wherever they relocate to, for five years or even longer.

We are trying to find out why the length of time is being set at six years. What research did the Government do to come up with that period? Have they any plans to meet the CPA or representatives of small businesses who may be particularly affected by the measures in clause 12? Do they have any plans to review how the clause is operating in practice, and particularly whether it is producing problems for small businesses?

The Minister will probably say that only a small number of businesses would be affected by the relevant type of compulsory purchase, that the balance is right and that the provision should therefore remain. I am sure he is right that the clause will not be used in many instances. Nevertheless it is a critical matter for the businesses that are affected. We would not want the clause to result in businesses moving from a high street or an important position in the community and not being able to come back, so that there would be blight further down the line. I hope that the Minister has got the drift of our argument.

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

It is a pleasure to serve under your chairmanship again, Mr Bone.

The amendment is entirely legitimate as a way of probing why the Government have arrived at the figure in question. It may help if I explain the purpose of clause 12 before I discuss the amendment, because some of the provisions will, I think, help to reassure members of the Committee.

The Government recognise that in certain circumstances taking temporary possession of land may be at least as disruptive as permanent acquisition. Clause 12 therefore provides an important additional safeguard to protect the interests of those whose land is subject to temporary possession. I say “additional” because any proposal for temporary possession of land must be authorised in the same way as compulsory purchase.

Clause 12(2) allows the owner of a freehold, or a leaseholder with the right to occupation, to serve a counter-notice requiring the authority to limit the period of possession to 12 months for a dwelling or six years for other land. That ability to serve a counter-notice on implementation of temporary possession is a further check and balance, in addition to scrutiny during the confirmation process.

Under clause 12(3) leaseholders—who are, I think, the people in whom the hon. Member for City of Durham was particularly interested—will also have the option to serve a counter-notice providing that the acquiring authority may not take temporary possession of their interest in the land at all. In those circumstances the acquiring authority must either do without the land or acquire the leasehold interest permanently.

Where a counter-notice is served under clause 12(2) the acquiring authority will have to decide whether the limited possession period sought by the landowner is workable for the acquiring authority at that time, or whether permanent possession is necessary. Alternatively, the acquiring authority may conclude that it does not need to take temporary possession of the land in question; for example, it might alter its construction plans.

Where the acquiring authority opts for acquisition of the land, subsection (9) provides for the standard material detriment provisions to apply. That means that if only part of a person’s land is acquired, but the retained land would be less useful or valuable as a result of part of the land being acquired, a further counter-notice may be served requiring the authority to purchase all the land.

I hope that the Committee can see that there are a number of safeguards, including time limits that can be placed on periods of temporary possession of a leasehold interest; I think that that is the issue about which the Opposition are particularly concerned. It is possible to say, in that case, “If it is going to be for that length of time we do not want temporary possession at all, and you either need to take permanent possession or do nothing at all.” Also, if possession is taken of part of a site and that will have an impact on the rest of the site, there are provisions to require the whole site to be taken.

The amendment, as the hon. Lady explained, would limit the period of temporary possession of land not occupied by dwellings to three years, rather than the six specified in the Bill. I entirely appreciate why she tabled the amendment; it was, I think, out of a determination, which I share, to ensure that those whose land is subject to temporary possession are properly protected.

The limit of six years is designed to give those affected greater certainty about the total period that non-dwelling land can be subject to temporary possession. Restricting the temporary possession period to three years would limit the usefulness of this new power and may drive acquiring authorities down the route of compulsory purchase in certain circumstances where that would be unnecessary. There are some schemes—one example not too far from us here is the Thames Tideway tunnel—where the temporary possession of land has been required for longer periods than the three years in the amendment.

There needs to be a balance between giving acquiring authorities the power they need to deliver their schemes and ensuring that the interests of those whose land is taken on a temporary basis are protected. The Government believe that six years strikes the right balance. In many cases the temporary possession will be for far less than six years. In the case of the Thames Tideway tunnel, the maximum length of temporary possession is eight years, so the acquiring authority would have to decide to permanently acquire the land.

As the Bill continues its progress through Parliament, I am happy to consider any evidence that Opposition Members or interested parties are able to provide that suggests the six-year figure does not achieve the correct balance. I can also reassure the hon. Member for City of Durham that even if the legislation is passed in its current form, the Government will keep the time limit under review as the new power begins to take effect, because the regulation-making power in clause 19 would allow us to make changes to the time limit without having to come back to the House with further primary legislation.

I hope I have given significant reassurance. On that basis, I ask the hon. Lady to withdraw her amendment.

The Minister has kindly set out what clause 12 is all about, so there will be no separate stand part debate. If anyone wants to speak on stand part, now is the time to do it.

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

I thank the Minister for his largely helpful response. It is useful to point out that a counter-notice can try to remove possession being taken at all. It is quite a drastic measure to ask local businesses to enter into a lengthy and difficult process. However, it is worth stressing that that option is open to them, as is trying to suggest that possession should be for only a part of the site. Again, that could be helpful.

I listened carefully to what the Minister said about reducing the total period of temporary possession to three years. I am very pleased that the Minister said he would keep that under review. He did not address the fact that a lot of leases for businesses are five years, and that requiring them to move for six years is effectively a permanent removal to a new location for them. However, I heard what the Minister said about keeping the matter under review and seeking evidence from people who have a specific interest in this area. It was a very helpful response. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clause 13