HC Deb 22 November 1954 vol 533 cc838-46

Lords Amendment: In page 28, line 3, leave out from "which" to second "or" in line 4 and insert: consists of or includes the making of any material change in the use of any buildings or other land".

The Solicitor-General

I beg to move, "That this House doth agree with the Lords in the said Amendment."

This is a drafting Amendment. Apprehension has arisen in quarters well qualified to have their apprehensions actively attended to that it is something more than a drafting provision. If necessary, I would set about persuading the House that there is no need for apprehension on ground level if the House so desires, but it would be a long and necessarily technical process and I think I might begin by seeing whether the House desires further explanation or not.

Sir L. Ungoed-Thomas

I should like to have a fuller explanation of this Amendment. I am a little puzzled about it as the provision does not seem to be quite the same as the words it replaces. I imagine that the Solicitor-General will refer to the definition of use in the 1947 Act. Perhaps he is relying on that. I am puzzled by the words as they stand, particularly by the use of the word "includes." If we can have an explanation of that I shall be obliged.

Mr. C. N. Thornton-Kemsley (North Angus and Mearns)

I am apprehensive about this Amendment. On the face of it, it seems to me rather more than a drafting Amendment, for reasons which I must ask the House to bear with me while I try to explain them. As the Solicitor-General said, it is a very technical matter, but it is one which I think we ought not to pass without receiving further assurance from the Government Front Bench.

As I see it, in another place the Government changed this Clause from a negative to a positive form. Before it left us it said that compensation in this part of the Act shall not be payable in respect of refusal of permission for any development which does not consist in the carrying out of building, engineering, mining or other operations. Now it comes back to us from another place in a positive form, the words being that compensation shall not be payable … (a) in respect of the refusal of permission for any development which consists of or includes the making of any material change in the use of any buildings or other land. I agree with the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) that the material words are "or includes." It seems to me that, in the form we are now asked to pass this Clause, it is possible—I do not put it higher—that we may exclude from compensation the great majority of refusals of planning permission under Parts II and V of the Bill.

Let me say straight away that we accept the point of view—I think we must, although we may not agree with it, but it has been germane to the whole of our discussions both on this Bill and the Scottish Bill—that the intention of the Government is that there should be no compensation for refusal of permission for a change of use. We may not like it, but that seems to me to be germane to the whole of the discussions in both Houses of Parliament.

But what of the case where planning permission is refused for development consisting of the erection of buildings which, when they are occupied, will constitute a change in the use of the land? The difficulty arises from the use of the words, "or includes." I do not know whether I shall make myself clear, but I hope that I shall do so, by quoting from the principal Act.

I ask the House to look at Section 18 (3) of the principal Act, which states: Where permission is granted under this Part of the Act for the erection of a building, the grant of permission may specify the purposes for which the building may be used; and if no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed. If that means anything at all, it seems to me to mean that permission to erect a building includes permission to use it for certain purposes when erected. In future, it seems to me, if the House passes this Amendment in the form in which it is proposed, and if the occupation of the house erected is different from the purpose for which the land was occupied before the application for planning permission, then a material change of use occurs.

It is always easier if one gives a specific instance, and with the permission of the House, I will endeavour to do so. Suppose I were the owner of a piece of rough scrubland or woodland which was used for little other than amenity purposes, perhaps for some rough shooting or something of that kind, which kept the land open. Suppose I wanted to build a house on it for my own occupation. I should apply for planning permission, and I might get that to build a house. And when that house had been completed, I should occupy it. In so doing, under the terms of Section 18 (3) of the principal Act, I should be changing the use of the land.

If that be so—and I hope that the learned Solicitor-General will be able to assure me that that is not the legal effect, because I am not a lawyer—it seems to me to be ruling out people who are refused planning permission to build a house in the Green Belt, for example. Because they embark on the development of building a house in the Green Belt, and then occupy it, that becomes a material change of use which is excluded from compensation by the terms of this Amendment. I hope that that is not the case, but I should like an assurance.

I will put a direct question to the learned Solicitor-General in which I will try to crystallise my argument in as non-legal and non-technical language as I can. Does the Amendment which another place proposes to insert in this Clause exclude compensation where development for which permission is refused would, had the permission been granted, have involved the erection of buildings and their subsequent use for a purpose for which they are intended, but which differs from that for which the land was being used before development took place? Does the Amendment exclude compensation in such cases? That is the question I wish to ask, and upon which the whole of my argument hangs.

6.15 p.m.

Mr. Irvine

Had the learned Solicitor-General not assured the House that this was a drafting Amendment, I do not think that there would have been any other reason to be found for regarding it only as a drafting Amendment. Whatever may be the intention, I suggest that the consequences of the proposed wording are a great deal more serious.

Broadly speaking, I share the view of the possible effect of this provision which was voiced by the hon. Member for North Angus and Mearns (Mr. Thornton-Kemsley). I do not think that my repercussions to that interpretation are necessarily the same, but I am inclined to agree with that view. It seems to me possible that this wording may have the effect of eliminating a large number of cases which the whole tenor and mechanism of the Bill made the subject of compensation and it is obviously better that the matter should be clear.

This, of course, is a remarkably confiscatory Bill. It is undoubtedly one of the most remarkable events of recent years, that it has been put through by a Conservative Government. I believe about this Bill that if the Government knew what they were doing, they would not be doing it. But although it is a confiscatory Bill, I do not think that it is intended to be as confiscatory as this so-called drafting Amendment appears to make it.

I should have thought that it would take a tremendous lot of argument to persuade anyone that the proposed words, "or includes" have not the effect of making the exemption from compensation very extensive indeed. Even within a rather narrower definition than that, there is this further objection which I would put before the House. It may often be a desirable feature of any particular development to incorporate into the scheme, in the plans put forward, a proposal for a material change in the use of the existing buildings.

That may often be a desirable thing from the planning point of view, but even on that narrower interpretation, this Amendment will have the effect of discouraging that kind of proposal, that kind of development, from being made the subject of a request for permission; because a scheme will not be put forward proposing that kind of desirable feature if it is known that the effect of incorporating a material change in the use of an existing building would be to eliminate compensation for refusal. So on that narrower ground, as well as on the wider ground, it seems to me that the proposed Amendment is open to serious objection.

The Solicitor-General

I hope that now, by leave of the House, I may be allowed an opportunity to make an explanation of what my assurance that this is a drafting Amendment is based. I hope that right hon. and hon. Members will acquit me of any discourtesy in not giving it before when they hear how abominably technical it necessarily has to be. But I refuse to be discouraged by the hon. Member for Edge Hill (Mr. A. J. Irvine), who says that it would take many words to satisfy him. I will endeavour to be brief about it.

Would the House bear in mind the principle on which all this planning legislation has been working? It has always been that the use of a building is something distinct from the use of land. When one puts up a building, it is prescribed by statute that that is not to be a use of land. When one puts up a building on land, the land, by reason of one's putting a building upon it, ceases to have a use as land. What is substituted is the use of a building.

The first use of the new building is controlled at the stage when the planning authority is asked to give permission for the erection of the building, the reason being that the building, being brand new, has no existing use—nothing from which to start. Once it has an existing use, then a material change in the use of the building, under the principal Act, would be a development to be controlled as such. With these things in mind, I ask hon. Members who feel these apprehensions to consider how the matter stands in law.

Section 18 (3) of the 1947 Act, which my hon. Friend the Member for North Angus and Mearns (Mr. Thornton-Kemsley) read, deals with the moment when a new building has been put up and it has no existing use. The Section is necessary to bridge a gap, as it were, that would exist if no use of the new building were permitted. Where it has no existing use, control is exercised by the authority giving permission for the erection of the building, either by specifying how it should be used or having it impliedly specified—if one may use that phrase—that it is to be used for the purposes for which the building is designed.

My hon. Friend the Member for North Angus and Mearns and other hon. Members will have noticed that nothing in that Section relates to any change of use of any sort or kind and nothing in that Section advances at all towards the proposition that the use of a building, as a building, is a use of land. One would get the most absurd position if it did.

Let me take the case of land in use as a car park for years and then, pursuant to permission, a great block of offices is erected on it. It would be manifestly absurd, in common sense or law, to suppose that the use of a car park still went on as the existing use of the land, after the building had been put upon it. When one puts a building on land, one puts a stop to the use of the land and creates a new entity, a building, which is to start with the use of the building.

What is excluded by the words that the Lords Amendment would propose to insert, are two categories of development, that which includes a material change in the use of the building and, a second category, development which includes a material change in the use of the other land, which means land other than buildings. The words come out of Section 12. What is not excluded is development which involves the change from one category to another—from the category of the use of land to the category of use of building. That is included.

When my hon. Friend the Member for North Angus and Mearns asks me the direct question whether compensation would be excluded by these words in the case of a developer who took, for instance, agricultural land and then built a cottage on the agricultural land and lived in it—he asked whether compensation would be excluded because there is involved in that process a change from agricultural land to a residence—the answer is, no. That is not excluded. It is not excluded by these words, because the use of the building is never a use of land in any sense. A use of a building for residence is not a use of the land. It would be contrary to all the principles by which this has ever been worked. The words do not have that effect.

I hope that in that analysis of what the wording means, I have satisfied hon. Members that this is a drafting Amendment and that is as briefly as I can state it.

Mr. Thornton-Kemsley

By leave of the House, I should like to say how grateful I am, as, I think, are all those who felt some disquiet about this, for the very clear explanation which my hon. and learned Friend, the Solicitor-General, has given us and which I may say, straight away, removes all the anxieties which I felt.

Lords Amendment: In page 28, line 31, leave out paragraph (a) and insert: (a) the order of priority, if any, indicated in the development plan for the area in which the land is situated for development in that area;.

Mr. Deedes

I beg to move, "That this House doth agree with the Lords in the said Amendment."

During our earlier debates it was suggested that the use of the word "stages" might give rise to difficulty and the then Minister undertook to try to find a better form of words. These are hose words.

Mr. Skeffington

I think I was one of those who raised this point. I very clearly remember the argument about the wording of this subsection. It seems to us that the words "order of priority" are better than "stage" in this connection. I take it that if anyone were dissatisfied with the decision of a local authority in excluding a claim for compensation because of this subsection, they would still be able, under other provisions, to appeal to the Minister.

In general, I strongly approve of this exception. Obviously, a local authority in considering development, for example, on the borders of a town, will want to see that the development takes place in some proper order for the very simple reason that one cannot simultaneously provide five or six main drainage schemes, or lighting schemes. Therefore, I am very much in support of the proviso. But if there were a decision of the planning authority which might be considered to be frivolous, or perverse, I take it the normal machinery for appeal does exist.

Mr. Deedes

By leave of the House, I am able to give the hon. Member the assurance he seeks. The answer is, yes.

Lords Amendment: In page 28, line 40, leave out "ten" and insert "seven."

Mr. Deedes

I beg to move, "That this House doth agree with the Lords in the said Amendment."

The effect of this Amendment is to reduce from 10 years to seven years the maximum period during which compensation can be withheld on the ground that development of the land would be premature. There was, as hon. Members who took part in earlier discussion will remember, considerable discussion on this point in Committee, during which the Minister undertook to consider introducing a shorter period of between five and 10 years. That is the purpose of this Amendment.

Mr. Skeffington

Can we have some reasons why the period of seven years has finally been decided? I know there have been all kinds of suggestions put forward. Some people have suggested that the period should be as long as 15 years. The effect of this Amendment, in some cases will be to extend the measure of compensation. Could we have a little more detail in explanation of the Government's decision to finally decide upon seven years?

6.30 p.m.

Mr. Deedes

I speak again by leave of the House. The hon. Gentleman will be aware that there is very varied opinion about what would be the right period. No period is self-evidently right. In both this House and another place, there has been argument for as little as five years and periods of 10 years or even 15 years have been advocated. In fact, we are here dealing with the case where the planning authority considers that the land is suitable for the proposed development but the development ought to be deferred under the provisions of the development plan or in relation to the availability of services.

It was not clear from what the hon. Gentleman said whether he thought that seven years was too long or too short a period. One point to be considered is that developers do not always wait until they are ready to start before they apply for planning permission, preliminary steps often being taken a year or more in advance, and the subsection may encourage an even earlier start. In effect, there are few people to whom the period of seven years will apply. The period may be considerably less for a large number.

Question put, and agreed to. [Special Entry.]