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Housing and Regeneration Bill

I am grateful to my noble friend Lady Whitaker for identifying an interest that I should declare: hacking my way through quite a lot of footpaths in parishes that shall remain nameless. The quality of footpaths varies enormously within counties, and in another life I would be much more militant about that than I am at the moment. I take these amendments seriously. I hope I can bring comfort to both noble Lords. The noble Baroness’s amendment asks the blunt question, ““Have we got it right?””—that is, has what we have done in the Bill established the right balance? First of all—and this reflects what the noble Lord, Lord Greaves, said—the powers in this part of the Bill are not new. They are closely modelled on the powers contained in paragraph 9 of Schedule 20 to the Leasehold Reform, Housing and Urban Development Act 1993 for the Urban Regeneration Agency. I say ““closely modelled”” because—again, I hope I can address the question of the noble Lord, Lord Greaves—we have strengthened the power in favour of the many people who use public rights of way. In response to debates in the other place, we laid an amendment that made it a requirement that if the HCA wanted a public right of way extinguished, it would have to offer a replacement right of way or show that such an alternative was not required. Part 2 of Schedule 3 and Clause 3 make that clear. That alternative right of way has to be offered, whether or not it has gone to public inquiry. That demonstrates how much we value the protection that we can offer public rights of way. I stress also that it is for the Secretary of State to extinguish the right of way, not for the HCA. If the Secretary of State were asked to exercise such a power I know she would do so with a great deal of consideration and diligence, not least because the decision would be subject to judicial review. The import of the amendment—which is essentially an opportunity to have this sort of debate, but I have to address the implications—would effectively mean that the HCA was hampered in regenerating or developing any land that was crossed by a public right of way. It would also mean that there was no statutory way for the HCA to deal with, for example, any electronic communications equipment that may be on land of this type. Part 2 of Schedule 3 allows for that to happen, but only after the Secretary of State has exercised the power to make an order under paragraph 3. I hope that will deal with the thrust of the amendment tabled by the noble Baroness. I turn to the issues raised by the noble Lord. Regarding Amendment No. 63, it is important that I point out that there is a distinction between the Town and Country Planning Act and the Bill. The questions he raised about the role of local authorities are reflected in that difference. As I read the amendment, it appeared intended to ensure that the same procedure was followed for the extinguishment of public rights of way over land owned by the HCA as for land held by local authorities for planning purposes under the Town and Country Planning Act 1990. My assumption was that the noble Lord considered that the TCP Act 1990 contains an established procedure for extinguishing public rights of way and that that procedure should apply in the case of public rights of way over land owned by the HCA. I shall explain the difference between the two and then answer his question about what has been updated. The procedures are in many ways extremely similar. In particular, Schedule 14 to the Town and Country Planning Act 1990 and Part 2 of Schedule 3 to the Bill provide for notice of the order to be published and served and for a public local inquiry to be held in certain circumstances. The procedures are not identical but they are similar. In both cases the local authority or the Secretary of State must be satisfied that an alternative right of way has been or will be provided, or that the provision of an alternative right of way is not required. That is the important safeguard. Essentially, the key difference is the question of who has the power to make the order extinguishing the public right of way. Section 258 of the Town and Country Planning Act gives a local authority the power to make the order to extinguish a public right of way over land which is held by that local authority for ““planning purposes””. The local authority may make the order itself if the order is unopposed but it must be confirmed by the Secretary of State if it is opposed. Under the provisions at Part 2 of Schedule 3, only the Secretary of State has the power to extinguish a public right of way over land which is owned by the HCA. That is a very important and necessary difference. The intention of the amendment seems to be to give the HCA a greater role in the process. In fact, the Bill removes the HCA’s involvement and strengthens the process by giving the responsibility for publishing the notice, considering objections and, importantly, making a final decision to the Secretary of State. That is right and proper because these are very serious issues and we think that that responsibility should reside with the Secretary of State. It is the same procedure that applied to the Urban Regeneration Agency in the Leasehold Reform, Housing and Urban Development Act 1993 and for urban development corporations, so we have not invented a new procedure; we are taking over the powers that previously existed in that respect. The noble Lord’s final amendment, Amendment No. 64, worries me slightly because it seems to remove some of the discretion that the Secretary of State had when making a decision to extinguish a public right of way. As I understood it, the noble Lord said that there should always be a public inquiry and that the Secretary of State should not have the discretion not to hold a public inquiry. I argue that that is a necessary discretion to have when there are no objections, because going through the burden of a public inquiry is a major challenge for everyone, not just for a local authority. It involves cost, as well as a time cost. Therefore, I do not think that that is a good way forward. The problem is that the amendment would mean that the Secretary of State could make a decision to remove a right of way without further investigation only if further information had been requested from an objector but it had not been provided within the required period. Slightly perversely, it would remove the Secretary of State’s ability to consider evidence already provided and make a decision if it was considered that all the necessary information had been provided on which to make an informed and reasonable decision. That takes me back to the bigger point that the Secretary of State must be allowed to act on the information that is available and to make an appropriate decision. Clearly, the ability to extinguish public rights of way will be important for the agency. If it were unable to do so, that could prevent it developing as we would all wish. The provision to require the HCA to provide an alternative right of way or demonstrate that it was not required should result in an overall neutral effect, but that is for the Secretary of State to consider when she is reaching her decision. These decisions are often not easy to make; indeed, they are often quite complex. In the information that is provided, there is a lot of history about public rights of way and ownership and so on. Therefore, it is necessary that the Secretary of State should have that information and, certainly when there is no challenge, be able to move to a decision without going via a public inquiry. Finally, the provision as drafted is very similar to that to which the URA is now subject. Therefore, essentially it is something that we are carrying forward rather than amending or diluting. The interrelationship between the Bill and the procedures is slightly complex, but I hope that my explanation has been sufficiently clear to enable the noble Baroness to withdraw her amendment.