CLAUSE 16.—(Power to permit building operations pending the coming into operation of a general development order.) (Hansard, 3 June 1932)

§ Mr. E. BROWN
I beg to move, in page 20, line 27, to leave out from the word "application" to the end of the Sub-section.
This and the following Amendment are drafting in order to remove overlapping between Sub-sections (1) and (2).

§ Sir S. CRIPPS
There is an Amendment to leave out the words "or refuse the application," which is a very material alteration. It takes away a power to refuse an. application which is at present contained in the Bill and confines the power of refusal to certain limited and specified cases. Although this does not arise on the present Amendment, I hope the Parliamentary Secretary will give us a further explanation of this Amendment.

§ Mr. BROWN
I have no intention of misleading the House, but all that the Amendment does is to avoid overlapping because Sub-section (2) deals with the same subject. They not only overlap, but they conflict, and the effect of the Amendment is to confine Sub-section (1) to the right of the owner to apply to the responsible authority for their consent and deals with the powers of the responsible authority in connection with the application solely in Sub-section (2).

§ Mr. E. BROWN
I beg to move, in page 20, line 39, to leave out the words "or refuse the application."

§ Sir S. CRIPPS
This Amendment, as I understand, makes a material alteration in the Clause. As it stood originally the Clause dealt with the power of the responsible authority, if they were satisfied that the operations proposed did not contravene any permanent provisions of the scheme, to give their consent. Subsection (2) gave them power to give a conditional assent or refuse the application entirely. Then there was a provision that there should not be a refusal except in certain specified conditions. Now I understand that the absolute power to refuse has been taken away and instead we are to foe asked to insert an Amendment which provides that where an authority has power under this Subsection to grant an application they shall not refuse it unless they are satisfied that other suitable land is available. I understand that the meaning of that is that if they have power to grant they must grant, and they are not entitled to refuse, except in the specific cases which are mentioned. I am not quite certain why this new form of words has been used unless there is some intention to make the refusal more difficult. The words to be inserted in one of this series of Amendments is: Where the authority has power under this Sub-section to grant an application they shall not refuse that application unless they" etc., etc. Without the Amendment incorporated the Clause provided that an application could not be refused "or unless the authority are satisfied" etc. My view is that the original words gave them larger power of refusal, and left the matter more to the determination of the local authority than the words that it is now proposed to insert. Perhaps the Minister will explain what is the object of the alteration.

Sir H. YOUNG
Again I approach this matter of the general interpretation of a Statute with some diffidence, but, subject to a higher legal authority than my own, I imagine that where the matter is referred to an authority for decision you must necessarily leave power to decide either way. There is the proceding in the nature of a hearing, and a decision has to be made, and that decision may be either in the negative or the affirmative. The hon. and learned Member will have noted that certain 1555 specific additions are made to this part of the Clause, which, with the Amendments introduced, would read: The responsible authority shall, in deciding any such application, have regard to any injury likely to be caused to the applicant by the refusal of the application, as well as to any public advantage likely to result from the maintenance of the prohibition or restriction, pending the coming into operation of a general develpment order, and may if they are satisfied that the proposed operations will not contravene any permanent provision of the scheme grant the application unconditionally or subject to such conditions as they think proper to impose. Then we come to the proviso which, with a suggested Amendment introduced, would read: Provided that where the authority have power under this Sub-section to grant an application, they shall not refuse that application unless they are satisfied that other land suitable … It is clearly the intention of the draftsman, in view of the insertion of the proviso, that they are not to refuse an application except in certain cases. I should suppose that there is an inherent power to decide in the negative as well as in the affirmative.