HC Deb 01 August 1947 vol 441 cc823-36

(1) A local planning authority may, with the approval of the Minister, enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be prescribed by the agreement, and any such agreement may contain such incidental and consequential provisions (including provisions of a financial character) as appear to the local planning authority to be necessary or expedient for the purposes of the agreement.

(2) An agreement made under this Section with any person interested in land may be enforced by the local planning authority against persons deriving title under that person in respect of that land as if the local planning authority were possessed of adjacent land and as if the agreement had been expressed to be made for the benefit of such land.

(3) Nothing in this Section or in any agreement made thereunder shall be construed as restricting the exercise, in relation to land which is the subject of any such agreement, of any powers exercisable by any Minister or authority under this Act, so long as those powers are exercised in accordance with the provisions of the development plan or in accordance with any directions which may have been given by the Minister under Section thirty-six of this Act, or as requiring the exercise of any such powers otherwise than as aforesaid.

(4) The power of a local planning authority to make agreements under this Section may be exercised also—

  1. (a) in relation to land m a county district, by the council of that district;
  2. 824
  3. (b) in relation to land in the area of a joint planning board, by the council of the county or county borough in which the land is situated,
and references in this Section to a local planning authority shall be construed accordingly.

Motion made, and Question proposed, "That this House doth agree with the Lords in the said Amendment."

Mr. Manningham-Buller

This is the Clause to which the right hon. Gentleman referred in the first speech he made today as reinstating Section 34 of the 1932 Act with regard to agreements regulating the development or use of land. We are glad to see that he has to some extent acceded to the arguments we put forward at the earlier stage of the Bill, but I want to ask one or two questions which call for an answer. Perhaps the Attorney-General can answer this? What is now the position, if this Clause goes through, with regard to an agreement by deed made under the 1932 Act by a local planning authority? There is nothing, so far as I can find, in this Bill to declare that those agreements under Section 34 of the 1932 Act shall be null and void. On the other hand there is nothing, so far as I can see, in this Bill to say that those agreements shall still remain in effect. Before we part with this Clause, we ought to be told what the position is now with regard to those agreements, particularly when those agreements are entered into, as many have been, by a local authority by deed under seal in the most solemn and binding fashion in which a local authority can make a contract.

I apprehend that this raises a question of some substance. There have been cases where agreements have been made which have served a useful purpose from a town and country planning point of view. We have had some instances where those agreements have not been so beneficial but where a man has voluntarily entered into an agreement subjecting his land to restrictions and limiting his powers to use the land, and the agreement has been made by deed. What will now happen to that deed made by the local authority under powers conferred by the 1932 Act.

Mr. Medland

Does the hon. and learned Gentleman mean agreements for private open spaces?

Mr. Manningham-Buller

Agreements regulating the development or use of land under Section 34 of the 1932 Act, which empowered authorities and owners to enter into agreements restricting the use of land. There are a variety of agreements of that sort. No matter what the particular, agreement related to, we ought to know before we pass from the Clause to what extent such an agreement made under powers conferred by Parliament will remain valid and in force. We really do get into a rather astonishing position if we say that an agreement made under the 1932 Act which is valid up to today ceases to be valid because Section 34 of the 1932 Act goes, so that the whole field is reopened and fresh agreements have to be entered into. I hope the Attorney-General will answer this quite clearly: Is it the case that the effect of the repeal of Section 34 is that a deed made by a local authority such as the London County Council is also to be treated as null and void?

I want to speak about the words of this Clause. I do not propose to comment upon Subsections (1) and (2). They are very similar to Section 34. But Subsection (3) is something quite new, and, as I read it, its effect is that although the owner is empowered under Section 34 to enter into a binding agreement with a local planning authority and the local authority is empowered to enter into a binding agreement with him, power is reserved by Subsection (3) for the local authority to say at any time it wishes, "This agreement is not binding on us and so far as we are concerned, it is merely a scrap of paper." That is the real effect of Subsection (3)— Nothing in this Section or in any agreement made thereunder shall be construed as restricting the exercise, in relation to land which is the subject of any such agreement, of any powers exercisable by any Minister or authority under this Act… "Authority" would include the local planning authority, the party to the agreement, so notwithstanding what was in the agreement which the local planning authority had voluntarily agreed to, this Clause, as I read it, would permit the local planning authority to tear up the document to which it had signed its name. If that view of the Clause is right, I can only say that, if it goes into the Bill, I hope that local authorities will not exercise the powers which it clearly gives them of repudiating documents they have signed. On the other hand, I cannot believe that if this power of repudiation is allowed to exist, local authorities will find many people willing to enter into fresh agreements under this Clause. It can be summed up in one sentence. If any man makes such an agreement, under the terms of this Clause the local authority can say "Heads I win, tails you lose."

12.45 p.m.

The Attorney-General

There is really nothing startling in the provisions of Subsection (3), to which the hon. and learned Gentleman has alluded. That Subsection makes it clear that an agreement made under this Clause cannot permanently over-ride the planning powers of the Bill. It may be that, subsequently to the Agreement, circumstances have changed, a new situation has developed, and that action has to be taken by the Minister or the authority under the Bill in order to secure certain other planning objects.

Mr. Manningham-Buller

The right hon. and learned Gentleman said, that it could not permanently over-ride the powers of the Bill. Does it over-ride them at all, even temporarily?

The Attorney-General

It is a matter of degree. One would assume that a local authority, having entered into an agreement, would not immediately thereafter seek to vary it or depart from it. It might be, however, that the circumstances might change in a very short time and, if so, the authority would have to discharge its duties. It is one of the best known, most elementary and, I respectfully venture to think, important principles of our constitution that executive authority of this nature vested in a Minister, or vested by a Parliamentary Statute in a public authority, cannot be fettered or contracted out of by contract. The Crown, the Minister and the authority in which certain obligations are reposed under this Statute must be free to discharge their duties if the circumstances do change. Those who enter into contracts of this kind do so in the full knowledge that, if the circumstances change, it may be that the powers conferred by this Clause will be exercised, and the agreement will be modified or departed from. There is no compulsion on them to enter into the contract, and they do so in the full knowledge that that is the position which may arise under them. They will be safe in practice if the circumstances remain as they were at the time of the agreement being entered into, but if there is a change of circumstances which makes it necessary to pro- cure other planning objects, then the local authority must be left free to do so.

On the other point, we may have an opportunity of discussing that on the Tenth Schedule, but the position is that under one of the Lords Amendments to that Schedule, in page 157, line 38, provision is made for retaining the existing agreements and modifying or revoking them in case of need. The matter has not been lost sight of, and machinery is there established in regard to it.

Mr. J. S. C. Reid (Glasgow, Hillhead)

I am astonished at the general doctrine which the learned Attorney-General has brought to bear to justify this, that under no circumstances must the executive be allowed to make a binding contract in case it chooses to change its mind next week. I thought that in the Crown Proceedings Bill we had been trying to bring the executive, as far as we could, into line with the ordinary law. Now we are told that the executive must have an overriding discretion to change its mind whenever it wants to do so, which I should have thought was making hay of the whole thing. What possible inducement is there for anybody to take advantage of this Clause if it is purely one-sided? Why should anybody bind himself to a certain course of action if he knows that the other contracting party is free to change his mind tomorrow? I should have thought that the whole purpose of this Clause, which is indeed an admirable Clause, intended to make landowners co-operate in these difficult matters, would be destroyed by this Subsection.

I would have no objection to a provision which said that the parties might put in a timetable 5, 10 or 15 years, or a provision which said that in any event no agreement was to be binding for more than 15 or 20 years. Surely, planners can see a little ahead? I agree that after some recent experiences that is perhaps an unwise assumption, but surely planners can see some small distance ahead and, if that is the assumption, I should have thought you were entitled to make an agreement to last at least for that duration, which people are normally expected to see ahead. But even that does not apply.

One would trust the local authority not to break the agreement unless for good cause, but there are at least two other people who can step in and cause trouble. One is the Minister and the other is the Central Land Board. One may perhaps assume that the Minister will behave reasonably in these matters, though that may be a rash assumption, extended over too many years, but I do not see that anybody at this moment has any ground for supposing that the Central Land Board will behave reasonably, because we have not yet the slightest idea of what it will do, and I view a board of this kind with the gravest apprehension, as I have said in the course of the corresponding Scottish Bill. Nobody making an agreement of this sort can be happy about the discretion of the Central Land Board or even the Minister, whatever he may think about the local authorities. Therefore, I suggest to the Minister that, even at this late stage, he might do something to modify this Clause to make it of some use. Speaking as a lawyer, if anybody came to me and asked whether he should enter into a contract under this Clause, I should say, "Don't touch it with a barge pole."

Mr. Henry Strauss (Combined English Universities)

I hope the Minister will respond to the appeals to look at this matter again. I am well aware, as I am sure the Minister is aware, of the great anxiety felt by the Council for the Preservation of Rural England, and other bodies, on the treatment of these agreements. Section 34 of the 1932 Act has been of great benefit to planning authorities because, under it, they have been able to secure the preservation of open spaces. There was, however, a defect in the law from the point of view of the central planning authority in that agreements under Section 34 could be entered into without the consent of the Minister, and that is why, when we revised the law in 1943, we provided that thereafter an agreement of this kind would need the approval of the Minister. From inquiries made at that time it was clear, however, that Section 34 agreements taken as a whole were very much to the public advantage.

I admit that circumstances may arise where it may be necessary on public grounds to interfere with almost anything, but, surely, in circumstances of that sort, what may be required is legislation. To say that one party to an agreement can simply ignore it is to make a most startling proposition, and is bound to have the effect that a private land- owner will simply not enter into an agreement of that kind. It will not help the Minister in the least to have this Subsection in the Bill; it will defeat the very object which the right hon. Gentleman has in mind. If it is desirable that these agreements should continue at all—and certainly the view of the amenities societies, so far as I know, remains what it always has been, that such agreements are desirable—then I hope, while a great deal of this new Clause is admirable, that the Minister will restrict the powers at present appearing in Subsection (3).

The Attorney-General

With the permission of the House, perhaps I might add a word. The right hon. and learned Member for Hillhead (Mr. J. S. C. Reid), with his usual ingenuity and skill, has succeeded in introducing a red herring in this matter. The Central Land Board is not really concerned or affected in any way by the provisions of this Clause, which deal with agreements between the local planning authority and a person interested in the land, and whilst an agreement between the local planning authority and the person interested in the land could not fetter the duties which are imposed upon the other bodies which are not parties to that agreement. This Clause seeks to say that, notwithstanding any agreement which may have been arrived at, these authorities which are specified in Subsection (3) of the Clause are to remain free. I agree that it includes the party to the agreement—[An HON, MEMBER: "Ah!"]—certainly, it includes the party to the agreement, but that is the local planning authority. Any agreement made by that body would not in the normal course fetter the jurisdiction of the Minister or the powers of the Central Land Board; but the purpose of this Clause is not only to preserve that situation but to preserve it also in relation to the local planning authority. The right hon. and learned Gentleman has suggested that this somewhat novel principle is in some way inconsistent with the provisions of the Crown Proceedings Act, but he will remember the Amphitrite case, where it was laid down in the clearest terms that it is not in the public interest for the executive, the Crown to fetter its future execution action by contract.

The Crown cannot contract out of obligations. It has to forward the public interest and that is, in effect, what this Clause ensures. It provides that although there may have been contracts, if circumstances change and the public interest otherwise demands, then, so long as those powers are exercised in accordance with the provisions of the development plan or in accordance with any directions which may have been given by the Minister those powers can continue to be exercised. There is nothing far-reaching or startling in this provision, and I hope that hon. Members opposite will recognise that it is consonant with ordinary principles.

1.0 p.m.

Mr. H. Strauss

Is not the point of the addition of the words in the Clause, which do not exist in Section 34 of the 1932 Act: with the approval of the Minister precisely to secure that each of these agreements should in the view of the Minister be in the public interest? The point I wish to put is that notwithstanding those words, if Subsection (3) is left as it stands, the Minister can approve a development plan which simply ignored the view he had expressed, perhaps two days previously, in approving an agreement.

The Attorney-General

I agree that is the legal position. It might be that within two days the circumstances would dramatically change. I do not think that is likely, but if the circumstances had not changed and the Minister was guilty of such astonishing conduct as to approve a development plan in complete contradiction to something he had approved the day before, no doubt suitable action would be taken against him in this House. Ministers do not act in that way as a rule, and it is not necessary or desirable to provide by legislative provision against the risk that they may do so. This preserves the power of any authority to act and carry out planning functions if circumstances change and the necessity arises.

Mr. J. S. C. Reid

The right hon. and learned Gentleman said I was wrong in referring to the Central Land Board. A development plan may be made, and following on that, an agreement may be made under this Clause, with the approval of the Minister, restricting a development of certain land which might otherwise be permissible under the plan. Now the Central Land Board can buy with the object of re-selling to other people for the purposes of developing. The Land Board ought to be bound in that case, but as far as I see this Clause does not hamper them taking such steps as they think fit to buy the land and re-sell it in defiance of the covenant. Whether that is to be revoked, I do not know, but I do not think it matters. If the Central Land Board had a good customer and convinced the Minister that a good customer was a change of circumstances, they could get rid of the agreement.

Mr. Silkin

The right hon. and learned Gentleman the Member for Hillhead (Mr. J. S. C. Reid) is quite wrong. A prospective purchaser from the Central Land Board would still have to apply planning provisions. It would be a revocation, not by the Central Land Board, but by the local authority. The fact that the Central Land Board come into it is irrelevant.

Lieut.-Colonel Dower (Penrith and Cockermouth)

If I may, as a layman, enter this discussion in which, so far, no person has been permitted to take part unless he is a distinguished lawyer, I would like to ask a question which worries me considerably. Is the Minister seriously saying that if I am a person interested in this land and enter into a contract with the local planning authority, the local planning authority under certain circumstances can say "We can no longer carry out our part of the contract as circumstances have arisen which make it no longer possible for us to do so"? Supposing that involved me, as an ordinary layman, in very great hardship and loss, would I have some remedy? I am not asking whether I could hold them to the letter of the contract, but this change of mind on the part of the planning authority might have involved me in very great loss. Would I have some means of getting compensation for what had occurred, or would my only consolation be that I ought to have realised when I entered the contract that they could not be held to the letter of the law if the occasion arose?

Lieut.-Colonel Elliot (Scottish Universities)

I think it is true that so far we have only had arguments by learned counsel, in which I am interested, but do not pretend to be able to take part. But looking at it, like my hon. and gallant Friend the Member for Penrith and Cockermouth (Lieut.-Colonel Dower) from the outside, I should think that the contention of the Attorney-General is wrong, because I should think "any authority" under this Act would include the Central Land Board.

The Attorney-General

In order to see what contracts are contemplated, one has to look at Subsection (1) which is quite explicit in mentioning a local planning authority which may enter into contracts, and contracts into which it enters, even with the approval of the Minister, cannot affect third parties.

Lieut.-Colonel Elliot

I got that point, but what confused me was the subsequent intervention of the Minister. I can understand the argument on a high legal basis, or the argument on a lay basis, but I do not see the two flats joining at any point. What the ordinary man in the street would like to know is why anybody should want to enter any of these contracts. The object of the Clause is that such contracts should be entered into, but all the explanations have been directed to proving that no such contract is worth the paper upon which it is written. I now understand that point. That is the point to which the Attorney-General is directing his argument and he has fully convinced me of that. I do not then understand why the Government have taken the trouble to put this into the Bill, and I was hoping the Minister would explain that. But all he explained was that the Central Land Board could act only in accordance with directions from the Minister, if it intervened in such a thing. That did not quite square with the explanations of the Attorney-General that the Central Land Board was not concerned, because it could not be bound. We agree that these contracts can be altered at will. I still do not understand, and I appeal to the Minister as one layman to another. I know he is learned in the law, but if he could dismiss his legal knowledge for a moment and approach this as an ordinary citizen, I would like to know why anyone should enter a contract, in view of the explanations given by the Attorney-General.

Mr. Silkin

Perhaps as man to man I can try to answer the right hon. and gallant Gentleman. One enters into the con- tract accepting the good faith of both parties, and I think that normally one can do so. Neither party is obliged to enter into the contract, the local authority or the individual. They enter in good faith, believing that it is for the public interest, and in the interest of the individual. We are accepting the position that planning is something flexible today. In the past it has been static, as no one knows better than the right hon. and gallant Gentleman. But circumstances do change, and less than every five years there is provision for review. On the occasion of such a review it may turn out that, looking at the best interests of the area, it may be desired to make some changes. That cannot be done at will, by a stroke of the pen, but there has to be a public inquiry. The owner can state his case, and if at the end of the day it is in the public interest that a change should be made, that change is made, and of course the Minister has to approve. On the assumption that everyone is acting in good faith, is not that the right thing? Subsection (3) will cause every one to be prudent in entering these things——

Mr. Manningham-Buller


Mr. Silkin

They will not enter lightly into a thing knowing there is a possibility that they may have to revoke. It would be quite in conflict with the conception of flexibility, in planning to have an agreement which in no circumstances could be revoked.

Lieut.-Colonel Elliot

As one who has had administrative experience, I can quite understand the right hon. Gentleman's point. We know that the Crown does not wish to bind this House by something which can never be revoked. But what about having some shorter period? It would be wrong for the Crown to bind itself for all time in a perpetual bargain. It is true that the contracts are entered into in good faith and foresight by either party. The five-year review period is for the local authority and the higher authority, and it would not be unreasonable if the Crown assumed responsibility for, let us say, a period of five years. That would lead to prudence being exercised on the part of the Crown. If one enters a contract which one can rub out at any moment, it is entered somewhat more light-heartedly than a contract which is to run for some time. The Minister says that he can be called to book on the Floor of the House, but a Minister who is going to have an awkward question asked, turns up his coat-collar and watches the clock and says, "My invariable ally will see me through." It is quite a different matter if he has entered a contract on which he can be challenged in the courts. I asked the Minister to consider the possibility of such a period. I put it no higher than that.

1.15 p.m.

Sir Hugh Lucas-Tooth (Hendon, South)

I understood the Attorney-General's point to be that the Executive should not be expected to bind itself in future. By that argument he is really missing the point of what it is to which we take exception in this Clause. What we do not like about it is that a local planning authority should be authorised to enter into an agreement which it can revoke the following day. That has nothing whatever to do with the Executive binding itself for the future.

Mr. Silkin

Surely the hon. Member is overstating his case, which I am sure he would not wish to do. It cannot revoke it the following day. This is an operation which must take a long time. It must be by way of a fresh development plan and a public inquiry.

Sir H. Lucas-Tooth

The wording of Subsection (3) of the proposed new Clause says: … powers exercisable by any Minister of authority under this Act, … As I understand it, an authority under this Act would certainly include a local planning authority.

Mr. Silkin

If the hon. Member would continue reading, he would see that the Subsection goes on to say: … so long as those powers axe exercised in accordance with the provisions of the development plan … That must mean that there must be a fresh development plan, otherwise the agreement could not have been entered into at all, and a development plan does assume a public inquiry and opportunity for objections. It cannot be done by a stroke of the pen.

Sir H. Lucas-Tooth

I think that there is some misunderstanding between the two sides of the House. Certainly, as I understand these words, they will mean that any powers which are exercisable under an existing development plan could be brought in aid to revoke at any date whatever an agreement which had been made. If that were the position, it would be open to any local planning authority which had entered into such a contract to say at any period, "In order to carry out our plans we shall have to revoke this agreement, because we have the powers to do so under the existing development plan." In other words, it would not mean having to bring in aid any new machinery whatever. If that is the correct interpretation of this Subsection, I think it is wrong. I understand from the Minister's interpretation that he is on the whole disposed to agree with that. If, of course, the Subsection means that before any revocation can be made some machinery has to be called in aid which would involve the exercise of powers by some outside person, in that case I should be perfectly willing to accept the decision of the Minister upon it. If it means that, I think there is really little difference of opinion between the two sides of the House.

Mr. Silkin rose——

Mr. Deputy-Speaker (Mr. Hubert Beaumont)

I do not wish to curtail Debate, but I must remind the House that we are not now in the Committee stage, and that hon. and right hon. Gentlemen cannot make a second speech without securing the leave of the House

Mr. Silkin

I was about to say, with the leave of the House, that I am willing to give an assurance that this provision will not be operated except after the procedure of a fresh development plan.

Mr. Manningham-Buller

If I may speak again, by leave of the House, I would say that I think that what the Minister has just said really meets the point we have raised. I am not quite certain as to what extent it provides that an agreement made under Subsection (1) will be reflected in a development plan. I am not satisfied that the revocation of an agreement by a local planning authority must necessitate the alteration or revision of the development plan. After all, there is an agreement which says that this land must not be used for a particular purpose, and then that agreement can be revoked by a local authority, without necessarily meaning that the local authority has to get a revision of the local plan. That is the point which worries me. We have had a valuable Debate, which I do not wish to prolong. I would ask the Minister to consider the matter again carefully to make quite certain that the local authority cannot have it both ways the whole time, that it is not "Heads I win, tails you lose." Perhaps the Minister will look at the matter, and try to meet the serious point that a local authority which has entered into an agreement should at least be bound to it for five years, subject to getting the approval of the Minister if a reduction of that period is desired. One does not like the idea of a local authority being able to repudiate its signature the next day. If the Minister says he will consider it again, I do not think we need pursue this matter any longer.