Lords Amendment: In page 68, line 27, at end, insert new Clause "C":
(1) Where, after the commencement of this Act, an application is made to a local planning authority for permission to develop land by the erection thereon of an industrial building, being an application which would, apart from this section, be of no effect by virtue of subsection (4) of section twelve of the principal Act (which provides that certain applications for such permission shall be of no effect unless it is certified by the Board of Trade that the development in question can be carried out consistently with the proper
distribution of industry) the local planning authority shall consider whether, if the requirements of the said subsection (4) had been satisfied, they would nevertheless have refused the permission sought by the application either as respects the whole or as respects part of the land to which the application relates; and if they are of opinion that they would so have refused that permission, they shall serve on the applicant a notice in writing to that effect.
(2) Where a notice has been served under the preceding subsection as respects the whole or part of any land, the provisions of this Act and of sections seventeen and eighteen of the principal Act, and, where by virtue of the preceding provisions of this subsection a direction has been given under subsection (3) of section twenty-six of this Act, the other provisions of the principal Act, shall have effect as respects that land or that part thereof as if the application had been of effect and permission had been refused.
§ 1.45 a.m.
§ The Lord Advocate
I beg to move, "That this House doth agree with the Lords in the said Amendment."
The purpose of the new Clause is to remove an anomaly in relation to the compensation provisions of the Bill produced by Section 12 (4) of the principal Act. That subsection is designed to secure the proper distribution of industry and provides that a local planning authority may not entertain an application for permission for industrial development over a certain size unless the application is accompanied with a certificate from the Board of Trade certifying that the proposed development is consistent with the proper distribution of industry.
The new Clause places a duty on the local planning authority where it receives an application for planning permission for industrial development, which requires to be supported by such a certificate, but without any such certificate accompanying the application. The local planning authority is required to consider the application and, if it would have refused planning permission, to notify the applicant to that effect.
§ Mr. T. Fraser
The Lord Advocate said that the new Clause is to remedy an anomaly in Section 12 (4) of the principal Act, and he went on to say what subsection 4 does. But he hardly sought to convince us that anomaly had been created by it, and he hardly explained the exact effect of the new Clause.
The right hon. and learned Gentleman is quite right that Section 12 (4) of the 1947 Act, which is here being amended, was concerned with the better distribution 1006 of industry. The then Government were interested in the better distribution of industry. It appears that the present Government are not so interested. However, if an intending industrial developer gets a certificate from the Board of Trade, he would in any case come to the local planning authority, without the new Clause; and if the local planning authority refused permission, the question of compensation would immediately arise.
What is now proposed is that where the intending developer goes to the Board of Trade for an industrial development certificate and fails to get it, he will none the less be required to go to the local authority. The local planning authority will require to decide whether it would have granted planning permission if the Board of Trade had granted a certificate authorising the site to be developed.
The local planning authority is given an impossible task. It has to take a decision in imagining certain circumstances which it knows do not obtain. If the local planning authority says that if a certificate had been granted it would in any case have refused permission to develop the site, Sections 17 and 18 of the principal Act and Clause 26 of the Bill begin to operate; compensation may be payable.
But why should the local authority say that it would have refused permission if the Board of Trade had already refused permission? Why should the local authority not simply say, "Yes, we would have granted permission," and no compensation would then be payable? No compensation would be payable if the local authority says that it would have granted permission notwithstanding that the Board of Trade has already refused permission. That is the position created by the new Clause.
The Government, apparently, imagine that in many cases the local authority will say, "We would have refused permission." Then, they provide in subsection (2) of the new Clause that Section 17 of the 1947 Act will apply, which says that the local authority might be required in certain circumstances to purchase the land. Clause 18 would then operate under which the local authority would be required in certain cases to pay compensation
1007 The Government also say—and this is a most extraordinary thing—under subsection (2) of the proposed new Clause:… where by virtue of the preceding provisions of this subsection a direction has been given under subsection (3) of section twenty-six of this Act …Section 26 (3) of the Bill provides for the Secretary of State issuing a direction giving permission to the intending developer—that is, upholding the appeal by the intending developer against the refusal by the local planning authority to grant permission.
Let us see what is the position if the local authority say that they would have granted permission and no compensation was payable. If the local authority refused to give permission and if the Board of Trade had not already refused the application, then compensation would become payable, but the Secretary of State, in justifying Clause 26, envisaged that it was the intending developer who would appeal to the Secretary of State against the decision of the local authority when it had refused him permission to develop the site. If, under this Clause, the intending developer is refused permission by the local planning authority and he has been refused permission by the Board of Trade, he will be quite satisfied because then he will get compensation.
But the Government for some reason or another seem to imagine that the intending developer will go to the Secretary of State and he will issue a direction under subsection (3) of Clause 26. What would be the effect of that? I will quote what it says:If in any case it appears to the Secretary of State that permission could properly be granted (either unconditionally or subject to certain conditions) for some development of the land in question, other than the development to which the application for permission related, the Secretary of State may give a direction …A site may be developed, but this only goes to the Secretary of State under this Clause if the Board of Trade say that the site cannot be developed. If the Secretary of State says that the site can be developed and the Board of Trade says that it cannot be developed, then the question arises, can the site be developed? Surely this is a very complicated and curious provision. Indeed, 1008 there can be no sillier provision in the Bill than this new Clause which we are asked to add to the Bill.
§ Mr. Fraser
There cannot be a sillier provision, because if the Board of Trade say no, under the existing law no application is going to the local planning authority at all, and then the local authority has got to put that out of its mind altogether and consider whether it would have granted planning permission on planning grounds if that certificate had been issued by the Board of Trade.
There is no justification at all for this new Clause. The Lord Advocate would not pretend that the speech with which he introduced this new Clause was a justification for it. There was no justification for it in another place. It is a completely new provision put in this Bill at this stage, and if there were more time to consider it it would be further amended as almost every Clause of this Bill has been amended since it was introduced last Easter.
The best thing which the Government could possibly do in the matter of this Clause is to withdraw it and to offer some very good reason for wishing to disagree with the Amendment, and I sincerely hope that some spokesman on behalf of the Government will now say that that is what is proposed.
§ The Lord Advocate
The hon. Member is quite right in saying that if an applicant had a certificate then he need not use this Clause, but this procedure does, however, provide a remedy to cure an injustice where there is no certificate produced with the application. Under this Clause, the local planning authority—which, I think, we are entitled to presume, will act reasonably and in a fair manner—will consider the application and, even although the certificate is not forthcoming, will notify the applicant if permission would have been refused.
In subsection (2) of the Clause, the notice for the purpose of compensation under the Bill will rank as a refusal of planning permission. The hon. Gentleman who has just sat down spoke about Clause 26 (3) as causing inconsistency and even chaos in relation to the operation of the Clause we are now discussing, but Clause 26 deals with a totally different situation.
§ Mr. Fraser
The Lord Advocate has sought to justify this Clause by saying that it is designed to cure an injustice, but he has not explained what is that injustice; I must admit that I had some difficulty in understanding it. A certain situation arises because of the refusal of the Board of Trade to grant a certificate; but statutory powers under the Board of Trade for the grant or otherwise of a certificate are still considered to be proper by this Government; the regulations about the location of industry are still thought to be proper and, therefore, a refusal to grant permission is not an injustice. Surely the injustice here is to the local authority which is going to be required to pay compensation—and for what? For the Board of Trade's refusal to allow industry to be located in that particular local authority's area. Is that not the case? I should be obliged if that could be satisfactorily explained.
§ The Lord Advocate
Where the Board of Trade has refused a certificate, the local planning authority cannot accept under the law as it now is, and without this new Clause, an application as a proper application for planning permission; and cannot, accordingly, give a planning decision on it. Consequently, an applicant has no title to claim compensation under Part II. I submit that what we here propose is action to remedy an anomaly; not an injustice.
§ Question put, and agreed to.—[Special Entry.]