Lords Amendment: In page 50, line 25, at end insert:
E.—(1) Where by a development order (whether made before or after the commencement of this Act) permission is granted for any development subject to limitations specified in the order, sections twenty-three and twenty-four of the Act of 1947 (which relate to the enforcement of planning control) shall, subject to the provisions of this section, have effect in relation to any non-compliance with those limitations as they have effect in relation to noncompliance with any conditions subject to which permission is granted for any development.
(2) For the purposes of this section and of the Act of 1947, any provision of a development order (whether made before or after the commencement of this Act) whereby permission is granted for the use of land for any purpose on a limited number of days in a period specified in that provision shall (without prejudice to the generality of references to limitations in this section or in that Act) be taken to be a provision granting permission for the use of land for any purpose subject to the limitation that the land shall not be used for any one purpose in pursuance of that permission on more than that number of days in that period.
(3) Where, in the case of any development which has been carried out before the commencement of this Act,—
(4) The validity of a notice purporting to be an enforcement notice under the said section twenty-three (whether served before or after the commencement of this Act) shall not depend on whether any non-compliance
to which the notice relates was a noncompliance with conditions, or with limitations, or with both; and any reference in such a notice to non-compliance with conditions or limitations (whether both expressions are used in the notice or only one of them) shall be construed as a reference to non-compliance with conditions, or with limitations, or both with conditions and limitations, as the case may require.
(5) In the application of this section to Scotland, for references to the Act of 1947 and to sections twenty-three and twenty-four of that Act there shall be substituted references respectively to the Scottish Act of 1947 and sections twenty-one and twenty-two of that Act; and, in subsection (3) for the words 'four years after the date of the alleged failure to comply therewith' there shall be substituted the words 'two years after it has come to the knowledge of the local planning authority that the limitation has not been complied with'.
§ Read a Second time.
§ Mr. H. Brooke
I beg to move, as an Amendment to the Lords Amendment, in line 21, to leave out subsection (3).
I think it would be to the convenience of the House if I explained briefly the provisions of the new Clause before T explain the Amendment, because it is difficult to justify leaving out a subsection when the subsection has never been before the House.
The new Clause was put into the Bill at a late stage wholly as a result of a recent decision of the Divisional Court in what is known as the Cater case. The judgment, given on 14th April, is likely to have far-reaching consequences because the court upheld a plea, the effect of which was that where, as in a caravan case, the general development order permits caravans to be on land for 28 days in one year and no longer, the enforcement provisions of the 1947 Act, being defective in one small respect, render it literally impossible to serve a valid enforcement notice to enforce that planning limitation.
The technicality is that in one Section of the 1947 Act we find the words "conditions or limitations" whereas in the enforcement section of that Act there is no mention of limitations.
The 28 days' period was held by the court to be a permission—I am abbreviating the findings of the court. It was held by the court that it was not possible to serve a valid enforcement notice because permission for the development had been given, and the person in question had his caravans on the 1730 land under the 28 days' permission and had not carried out any further development after the end of the 28 days but had simply kept them there. What this wholly unexpected event disclosed was that a limitation such as the caravan limitation for a period of time could not be challenged in this way.
That is a very brief description of the position, but it certainly created a very serious situation for planning authorities and, indeed, for the public generally. In reply to a question put to me by my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), I indicated that the Government were urgently examining the situation that arose to see whether a suitable Amendment could be inserted in the Bill at a late stage in another place.
The purpose of subsection (1) is to make it clear that where permission is granted by a development order subject to limitations the local planning authority may serve an enforcement notice in respect of non-compliance with those limitations in the same way as for non-compliance with any conditions attached to a planning permission, and subsection (2) makes it clear that the limit of 28 days in Class IV of the general development order or any similar limit in a development order is a limitation for this purpose.
Subsection (3), which I have moved to omit from the Lords Amendment, deals with a case where the development has already occurred and the local authority has served an enforcement notice of the kind which the court held to be invalid in the later case, and the period of four years within which a valid enforcement notice should be served has now expired. In another place this subsection was included in the Lords Amendment, and its effect would be that in such a case a further enforcement notice could be served at any time within one year of the commencement of the Bill.
Subsection (4) is a clarifying provision, dealing with the point that where a local planning authority wishes to take enforcement proceedings for non-compliance there might be some doubt whether an alleged contravention was, strictly speaking, a contravention of a condition or of a limitation. The subsection makes it clear that the validity 1731 of an enforcement notice served under Section 23 of the 1947 Act is not to be affected by any such doubt.
§ Mr. Mitchison
Would the right hon. Gentleman mention subsection (5) before he leaves the matter. I think it means that a period of four years after the failure to comply in England corresponds with a period of two years after the knowledge of the planning authority in Scotland.
§ Mr. Brooke
That is so. I am always diffident about explaining the Scottish subsections.
After the Amendment was moved into the Bill on Report in another place the Government very carefully examined it and, as a result, came to the conclusion that subsection (3) might put Parliament into a state of appearing to be pursuing vindictively one of Her Majesty's citizens who had recently won a case in the courts and had acquired an existing use right by the effluxion of time because the four-year limit had run out. But this is not a matter which can be settled easily. There is more than one principle which could be applied in a case of this kind.
There may be a handful of other cases besides the Cater case, but there can only be a very few. The only cases which would be affected by what we do with regard to subsection (3) are cases where an enforcement notice has been served but not complied with, and where the notice was of the particular kind which the Cater judgment declared to be invalid, and also where the period of four years since the alleged contravention will have run out by the time the Bill comes into force. The contravention must have occurred in 1955 or earlier, or later in Scotland.
The Government have no specific knowledge of other cases, but there is liable to be a handful of such cases. It is a nicely balanced issue as to what should be the correct course to take. In the particular case which has brought this to light there is no doubt that the person concerned was ignoring and flouting a time limitation in the development order. Nevertheless, he had won his case in the court, he had established his right, and owing to the four-year limitation 1732 that right could not be taken away from him by the local authority serving a new enforcement order.
On balance, and after careful reconsideration, the Government have come to the conclusion that it would be wiser and, indeed, more in accordance with the dignity of Parliament to recognise that position and not even to seem to be seeking to reverse the result of a recent case decided in favour of the appellant in the court.
It is on those grounds that, as I say, after very careful reconsideration the Government have decided that it would be right to move this Amendment, as I now do, to leave out subsection (3). The subsequent Scottish Amendment is linked therewith.
§ Mr. Mitchison
Before the right hon. Gentleman sits down, would he be good enough to answer one question? The Amendment is quite recent. It appears starred on the Notice Paper. The right hon. Gentleman tells us that he has given the matter most careful consideration. What consultation has he had with the local authorities in the matter and with what result?
§ Mr. Brooke
If I may have the leave of the House to speak again, I would say that the Government have had no consultation with the local authorities on this matter. I quite appreciate that the decision to move the Amendment may be distasteful to the Essex County Council. I regret that. As I say, there may be a handful of other cases, but I think it can be no more than a handful.
I trust that the planning authorities will recognise that there is here a conflict of principle and that one has to try to reach a right balance. After careful reconsideration the Government felt that, on the whole, it would be right not to be seeming to pursue a particular citizen and put him in jeopardy again when he had, in fact, so recently established a right in the courts.
§ Mr. A. J. Irvine
It is not easy at this hour tonight to deal appropriately with the question of amending the law of enforcement notices in the way proposed by this Lords Amendment and the right hon. Gentleman's Amendment to it. The Amendment deals with only one of the large number of defects which have been 1733 found to get in the way of the law of enforcement under Sections 23 and 24 of the 1947 Act.
The House will be aware, and the right hon. Gentleman will be aware, that time and time again by some technicality after another it has been found by local authorities extraordinarily difficult to draft enforcement notices which are effective for their purpose and to enforce the law in the manner in which Parliament intended that it should be enforced. A really extraordinary amount of time has been taken up in the courts, as hon. Members on both sides of the House are aware, in dealing with questions arising on the law of enforcement. I do not think it would be going too far to say that the machinery set up by Sections 23 and 24 of the 1947 Act has failed in its purpose. It has been disappointing in a great many respects, and for some time there has been a desire on the part of hon. Members on both sides of the House that there should be an amendment of the law of enforcement, and changes in the provisions of those Sections.
When some of us were advocating such a change, we were met with the objection that this kind of thing should not be treated piecemeal, that it was quite wrong to take one defect in the provisions of the 1947 Act and try to put that right, because there were so many loopholes and ways round the provisions that a large-scale and wholesale change in the law was needed. In that setting, I think it fair to say that it is discouraging to see what we were warned was undesirable now taking place: because this certainly is piecemeal treatment of the problem. Not only that, it is a treatment arising in a very curious way, because we have now come to one of the Lords Amendments to the Title of the Bill. Therefore, this change is open to criticism not only because it is pricemeal in character, but also because of the pattern in which it arises, and because of the circumstances, it is not at all easy to give the matter adequate treatment and consideration.
I should not agree myself, but on the view that it is right to treat the Cater point piecemeal, I think it may be that this Clause more or less meets the purpose. It is quite wrong that the provision in the general development order 1734 about 28 days, which was intended to deal with the case of temporary use, should be made a technical occasion for effecting much wider and more long-term purposes to Sections 23 and 24 of the 1947 Act. That has been going on in a large number of cases and in the Cater case in particular. It has meant that one enforcement notice after another has been held by the courts to be invalid because the basis of the notice was that the use of the land was being carried on without permission, and it was always possible for the user of the land to point to the general development order and say that he was not doing what he was doing without permission because he had general permission in the development order. It is desirable that that loophole should be stopped up. Probably that good result is effected by this new Clause.
As regards the Amendment which the right hon. Gentleman has proposed, I quite agree with him, and I think it is rather a narrow point. For what it is worth, I am bound to say that my inclination would be to agree with the view he has expressed. It is a narrow point, and it is the sort of matter on which individuals in different parts of the I louse may differ. I can understand the annoyance of the Essex County Council. Somebody has got through the loophole and is clear. The technicality is a fait accompli, and it is rather distressing for the authority concerned.
But, after all, it would be carrying retrospective legislation rather far to make a change in the law which (a) would have the result of capsizing a recent High Court decision, and (b) would have the result of capsizing such a decision in circumstances where as long a statutory period as the four years had expired during which, under the law until now, the right of Mr. Cater to carry out the use of the land, if he had carried it out, would have been effective.
On the rather narrow issue of the Government's Amendment, I should be inclined to take the view which the right hon. Gentleman has said is the Government's view of the reason for the Amendment. As regards the new Clause as a whole, I do not criticise its content, but I do criticise the Government for the manner in which they have brought their recommendation forward, after having discouraged for so long those who desire 1735 to alter the law in this matter of enforcement. After having discouraged and obstructed new legislation for many years, on the ground that it was necessary to deal with the topic as a whole, they have shown in this proposal now that that objection of theirs was ill founded. They have acted in contravention of the arguments which they themselves have presented.
§ Mr. MacColl
I wish to put a point of view which is somewhat different from that advanced by my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine). It is a very difficult question. One major criticism which must be made of the Minister—my hon. and learned Friend the Member for Kettering (Mr. Mitchison) put this point earlier—is that the delay in putting forward this Amendment to leave out subsection (3) makes it impossible for people who are affected by the Government's decision to make their representations in the constitutional manner to Members who have to consider it.
We could argue one way or another about the Lords Amendments and the place of Lords Amendments in the Bill, but as is well known, when the Government arrange for an Amendment to be moved in another place and it becomes known and recognised that a certain alteration is to be made in the Bill, people can understand what the situation is. If the Government, at the eleventh hour, change their point of view and make an important alteration in what they originally proposed, there is no later stage when the matter can be raised again, and I think that the local authority associations have serious ground for complaint, in that they have been misled and, to some extent, have been led up the garden about it. However, I will not develop that point.
When I first saw this proposal, I was a little more irritated about it than I am now. I realise now that there was a great rush because the decision of the High Court was a very recent one. It should be made quite clear that the Lord Chief Justice said that Mr. Cater's case had no merits and that when he defied the planning authority he did not do so with this technicality in mind at all. That was made quite clear in the judgment. Therefore, we are not dealing with someone 1736 who acted having in mind what the law was and then being faced with a subsequent change in the law.
When we are dealing with retrospective legislation the right hon. Gentleman will forgive me if I draw his attention to Clause 40 of the Bill. When it is a question of dragging money out of the Widnes Council and others and shutting them off from access to the courts the right hon. Gentleman is not at all squeamish. He is quite happy then to mulct the local authorities by retrospective legislation. But when it comes to a person whose case, as the Lord Chief Justice says, has no merits, and who gets away with it purely on a technicality, the right hon. Gentleman begins to get very nervous and uncertain—putting the provision in and taking it out, and so on.
My hon. and learned Friend the Member for Kettering says that two blacks do not make a white, but is this really a black? If the point is that in cases such as Mr. Cater's and similar cases people are to be prosecuted and punished for something done before the law was changed, I would agree that that would be something to which we could not accede. But, as I understand the position, nothing can now be done to enforce the planning decision against Mr. Cater. In other words, the new enforcement notice can never be served on him.
That raises a difficult question, because the one position is as unjust as the other. Why should he be allowed to remain sitting pretty, as it were, on his caravan site while other people have to suffer, merely because the enforcement notice had been served on him and not on them? I recognise the difficulty of the position. Speaking as an individual, I would be very happy to say "Let bygones be bygones. We shall not raise the issue of the previous prosecution—that is settled and done with. But, for the future, if it is possible for the planning authority to enforce the planning decision that it originally made then, in Mr. Cater's case and any other like it, I would say, "Let bygones be bygones. You have had your run and you have your caravans on the site, but from now on you must conform with the planning decision."
1737 I do not know whether or not that could be done under the new Clause as amended, but I must say that I am very unhappy about a position in which the planning authority cannot do anything about what is, in fact, a disregard of the planning position.
§ Mr. Mitchison
And the local authorities are also very unhappy about that position. I have had a telegram—and I know that one or two other hon. Members have had one, too—from the County Councils Association protesting very strongly against these last-minute Amendments that the Government are now introducing to the Lords Amendments. I have had a similar telegram, not altogether surprisingly, from the Essex County Council. I have been shown letters from two boroughs—Leyton and Nuneaton—and the similarity of their form leads me to the conclusion that the Association of Municipal Corporations may also have views on the situation. But the local authorities have not had any time. These two Government Amendments were put on the Paper yesterday, as appears from the star on them. It is a scandalous way, apart from the merits of the matter, of treating the local authorities since the Cater case came on on 14th April.
The Government have introduced a Clause with retrospective effect in another place and only yesterday, 8th July, did they bring in these two Amendments. I wonder where the Amendments have come from. Who has suggested this? Is it Mr. Cater? Is it some backbencher on the Government side who thinks that retrospective legislation is wrong and dangerous? If so, what are his views about Clause 40 as it first was in the Bill, a Clause which introduced retrospective legislation to penalise local authorities and which said that the law was to be deemed to have been what it was now enacted to be for ever in the past, ever since the Act in question was passed? It was defended, I ask the House to note, on the ground that the local authorities had no real merit.
What merits did Mr. Cater have? The Lord Chief Justice said thatThe appellant—that is, Mr. Cater—has flagrantly avoided compliance with the intentions of the planning authority and the Minister".1738 He went on to say that he had raised a technical point. The other member of the court, Mr. Justice Donovan, said in the same way that he felt bound, "and with the like reluctance" which had been expressed at some length by the Lord Chief Justice, to agree.
There was not the least doubt about what the two learned judges thought about the matter. They thought that on a purely technical point, invented, obviously, not by Mr. Cater, but by some ingenious gentleman who had advised him, Mr. Cater had succeeded in getting away with it and that he had, to quote once again the words of the Lord Chief Justice,flagrantly avoided compliance with the intentions of the planning authority and the Minister".Such is the Government's view that when local authorities are concerned, the retrospective legislation is embarked upon cheerfully, in the interests of the Treasury in that instance, and the defence is that the local authorities have no merits. When we get a gentleman who hasflagrantly avoided compliance with the intentions of the planning authority and the Minister",the Minister regards it as a nicely-balanced matter what action he should take.
The right hon. Gentleman ought not to have introduced the Amendment—there was no need for him to do so—without consulting the local authorities. He is supposed to be the Minister of Local Government and this is a matter which, obviously, will affect to an uncertain degree a large number of authorities. Mr. Cater's immunity, after flagrant defiance of this kind and success on a purely technical point, depends upon the period of four years. He is now absolutely immune. Anybody in Mr. Cater's position who has four years or four years and a day will be equally immune. Somebody with three years and 364 days in exactly the same position will not be immune if the local authority pulls its socks up and acts quickly.
There is no question of merit or protecting a man who has established his right, or anything of that sort. If we 1739 are to have retrospective legislation—and we have it in this very Bill—this is exactly the case for it. What happened in the case in question depends on the provisions of the general development order, 1950, in which, there is a class of development which is calledDescription of Development … Temporary buildings and uses.What Mr. Cater got away on was this:The use of land (other than a building …) for any purpose on not more than 28 days in total in any calendar year, and the erection or placing of moveable structures on the land for the purposes of that use.That is not confined to caravans. The court had only to decide a case about caravans but made it clear that its decision was going far beyond caravans. The Minister may be right in saying that there may not be many cases of caravans without a four-year period to support them, but what about all the other cases? The position now is that anybody who can claim the benefit of the four-year period will have succeeded in the way appropriate to Mr. Cater in flagrantly avoiding compliance with the intentions of the planning authority and this very difficult Minister—
§ Mr. H. Brooke
When I said I thought there would be only a handful of cases I was not referring only to caravan cases. I realised there would be cases over a wider field, but those cases would have to comply with the whole of those three conditions which I mentioned to the House.
§ Mr. Mitchison
That just will not do at all.
The right hon. Gentleman could have found out quite easily if he had taken the necessary steps in time and had consulted the local authorities on a matter which is entirely within their knowledge. I do not say it is deliberate, but this is a most extraordinary piece of discourtesy to the local authorities and an extraordinary disregard of his and our obligations to them. They should have been consulted in a matter of this sort. This is sheer pedantry, so far as I can see, this new Clause brought from another place.
Incidentally, I would share the objection of my hon. and learned Friend the 1740 Member for Liverpool, Edge Hill (Mr. A. J. Irvine) to the way in which it has been done, the neglect of facing the problem as a whole, the handling of it. When it was brought into the House the Government knew about the other cases. Then, presumably, they thought about it. They must have considered retrospective legislation and must have decided it was justifiable in the circumstances, and then they come along and the day before we have to discuss this they put in an Amendment which is going to irritate and madden all the local authorities in the country. That is no exaggeration. They come here at this hour of the night because of the procedure they have adopted and put it to the House as a very nicely balanced matter and one in which they prefer on no account to offend a gentleman with four years behind him after his flagrant defiance of the local authorities and the Minister.
I am bound to say this is utterly and absolutely indefensible. There are no vested rights in the matter. There is no real substance, no merit, in it at all. All that the man has done is on a purely technical point, to succeed in making the Minister bring in legislation, and in getting off himself in this instance. If he had not got four years behind him, if he had three years and nine months, another notice would cure the whole business. The right hon. Gentleman told us himself.
What nonsense to say there are questions of principle in this. Surely it is the most complete and utter nonsense. Surely it is completely and utterly in defiance of local authority interests, and proper interests, in the matter. I regard it not as avoidance of retrospective legislation but as encouragement to defy the law if one can only find a technical point.
I do not think that that is the right way to treat people who succeed on this ground. Why should Mr. Cater be allowed to stay there? Why? What the whole case turned on in fact was a misstatement in the notice. The notice said he had gone there without permission. He had gone there with permission because of the development order. That was the reason for deciding the case. It is a highly technical reason. Another 1741 form of notice might or might not have served. That was never investigated.
I am not at all certain that even now the right hon. Gentleman has got the right form. I notice that Mr. Justice Donovan recommended an entirely different way of dealing with the difficulty. The right hon. Gentleman's Department has not adopted it. It has taken up a way of its own. It might have worked. I hope it will. It ought to work. But the reason for the Amendment seems to me to be utterly flimsy.
We are in no position to do anything but submit to the big battalions of the Government whom I see ranged opposite us. If they like to say there is another split in the Labour Party between my hon. and learned Friend the Member for Edge Hill and myself they are certainly at liberty to say so, but I am speaking, I believe, at any rate for the great majority of my hon. Friends when I say that I think the local authorities have been very badly treated, that Mr. Cater has got away with it, and the Minister has been amply foolish.
§ Amendment to the Lords Amendment agreed to.
§ 12.15 a.m.
§ Mr. N. Macpherson
I beg to move, as an Amendment to the Lords Amendment, in line 54, to leave out from "Act" to end of line 58.
§ Mr. Mitchison
This is even worse. This is two years from knowledge instead of four years from the Act, and one can get off more easily in Scotland, apparently. No doubt it depends upon the circumstances of the case. I shall not make the same speech again but in this instance the Scottish Office is just as bad as the Ministry of Housing and Local Government.
§ Mr. Macpherson
Whatever may be the merits of the case, we have no knowledge of any cases in Scotland. As far as I know, no cases have been decided and there are no cases pending.
§ Question put and agreed to.
§ Lords Amendment, as amended, agreed to.