HC Deb 01 February 1960 vol 616 cc734-48

8.33 p.m.

Mr. Michael Stewart (Fulham)

I beg to move, That an humble Address be presented to Her Majesty, praying that the Town and Country Planning (Delegation) Regulations, 1959 (S.1., 1959, No.1915), dated 13th November, 1959, a copy of which was laid before this House on 18th November, be annulled. The earlier part of these Regulations, paragraphs 1 to 4, do no more than continue the power possessed by county councils, which are the planning authorities, to delegate to county districts. The Regulations revoke some of the earlier Regulations, but they preserve part of them by paragraphs 1 to 4. With that part I am not greatly concerned. In paragraph 5 of the new Regulations and under the Schedule thereto there is a new feature; what are called "excepted district councils", which are now given the power to require delegation. The earlier part of the Regulations if a power to a county to delegate if it wished. We now have a new feature—a power of certain district councils to require that powers under the Town and Country Planning Act, 1947, shall be delegated to them.

These excepted districts are to be, first of all, those with a population of 60,000 and over, but, in addition, they may be any others to whom the Minister gives his approval. The first question which I want to put to the Parliamentary Secretary is, how frequently does he expect that the Minister will give his approval to district councils with a population of less than 60,000 being able to require the power of delegation? How often will that be done and by what criteria will he decide whether it is appropriate for him to give one of the smaller district councils the power to require the delegation of these powers?

It might be said that even in this matter there is nothing very new because, if I remember correctly, the Local Government Act, 1958, gives a similar power to the smaller local authorities to require delegation with regard to education, health and certain other services. It might be argued that these new Regulations do no more than apply that same principle to town and country planning. We all agree, however, that town and country planning presents certain special features and that it is not immediately obvious that a decentralisation of government which might be appropriate to certain other services is appropriate for town and country planning.

The Parliamentary Secretary and I both have a certain feeling of novelty about the proceedings tonight. Had it not been for the last Parliamentary redistribution of seats, we might have faced each other in conflict in a constituency which has now disappeared from the map. We now meet each other in a different context, but although both of us are no doubt endeavouring to find our way in this vast labyrinth of local government, all hon. Members are bound to have a certain knowledge of local government. problems. One's mere position as a Member representing a constituency obliges one to acquire a certain amount of knowledge about local government problems.

It has always seemed to me that there is one perennial problem running through the whole business of local government. That is, if we make authorities too large they become too remote from the people whom they serve and begin to represent mere slices on the map without any coherence or common feeling, and if we make them too small they are incapable of handling some of the very important responsibilities put upon them. The latter is liable to be particularly true about town and country planning. A small authority might be admirable for dealing with those services which bear directly and immediately on the day-to-day life of citizens, but sometimes, by the defect of that virtue, it may not be suited for the functions of town and country planning. Its very attachment to its own limited district and its pride in it may make it difficult for it to perform functions which require consideration of the development of a whole region, its industries, its natural beauty and all the other varied considerations which make up the task of town and country planning.

Fundamentally, the question which I want to ask tonight is how we can make this idea work of delegation in town and country planning to authorities with populations of 60,000, and in some cases less. There is one answer which the Minister can give me immediately. The Schedule to the Regulations sets out the scheme of delegation which is to come into force when any council requires it. It is immediately apparent that it provides for many exceptions. The Government might answer the question I put just now by saying, "We can make the idea of delegation work in town and country planning because we have provided so many exceptions one way and the other that if it does not seem to work as we thought it would we can always get it round the other way". The reverse side of my question therefore is this. Looking at the Schedule in detail and seeing how many exceptions to the general principle it contains, one may ask whether the idea of delegation will work at all.

The functions delegated are mainly functions under Part III of the Town and Country Planning Act, which is concerned with the development and use of land. The Schedule excepts from the scheme of delegation functions concerned with mineral workings and functions under Section 29 which is concerned with buildings and places of historic and architectural interest. We should understand straight away the reason for both those exceptions. It is apparent on the face of it that the judgment of a larger authority might be more suitable. I notice also that functions under Section 25 are not to be delegated. As far as I can see from studying the Act, district councils have those powers already, and I presume—perhaps the Parliamentary Secretary will confirm this—that that is the sole reason why Section 25 is excepted.

We find, next, that Sections 14, 17 and 18, which deal with the granting of permission to develop land, are to be delegated by the county to the district, but the district can if it wishes push them back on to the county. That is a possibility of exception from the scheme of delegation one way. Conversely, powers under Sections 21, 23, 26 and 28 are to be delegated, but if the county thinks that the district is not handling them properly, it can take them back again. Therefore, one set of powers in Sections 14, 17 and 18 are delegated, but can be pushed back by an unwilling district on to the county, and another set of powers under Sections 21, 23, 26 and 28 are to be delegated, but the county can in certain circumstances take them back.

All the Sections in Part III of the Act, which is what the Regulations are concerned with, which are not mentioned by number in the Schedule and to which I have not referred, are merely dependent for their working on the Sections which are mentioned. Fundamentally, the Sections I have mentioned are the bone and substance of Part III of the Act. We have, therefore, a scheme for delegation of the powers under Part III which says, first, that they are to be delegated. It then says that some—namely, Sections 25 and 29 and functions concerned with mineral working—are not to be delegated. It then says that some of them are to be delegated, but the delegatee can refuse the delegation if he wishes. It says, finally, that the rest are to be delegated, but the delegator can take them back if he wishes.

In those circumstances, it is reasonable to ask how the Minister sees the scheme working. Is it to be assumed that the special powers mentioned in the Schedule—the power of the county council to take back or of the district council to refuse delegation—are to be exercised in only a comparatively small number of cases?

That may well be the answer. We all know from experience that provisions in Acts of Parliament—and. still more, in Statutory Instruments—that at first sight do not appear to make a great deal of sense, or may say something that appears remarkably obvious, are actually necessary and sensible and will work out all right. However, I think that before approving these Regulations the Minister should tell us how he expects that these proposed schemes of delegation will work.

8.45 p.m.

Mr. James MacColl (Widnes)

I beg to second the Motion.

I have little to add to what my hon. Friend the Member for Fulham (Mr. M. Stewart) has said, except to say that these Regulations are really the third stage in the Government's policy in delegating functions from county authorities to district authorities. In the Local Government Act we have very similar facilities for delegation by education authorities to excepted districts, and the delegation, in the same way, of health functions by the Ministry of Health.

As my hon. Friend has rightly said, one of the difficulties in assessing what new departure these Regulations will make is to know precisely what attitude the Government will adopt in regard to voluntary powers under paragraph 3. Is this merely a rehash of existing Regulations, in which there is to be no difference at all in the existing powers, or does it mean a departure from the old policy—a widening of the power of delegation to authorities other than the excepted councils?

In other words, I should like to know what is meant by the words A local planning authority…may with…consent…enter into an agreement… Further, what is meant by paragraph 5 (5), which says that where there is no agreement The Minister may, on application… make a delegation if he is satisfied that there are special circumstances?

Those are practically the same words that are used in the Local Government Act. I do not think that authorities have been altogether very happy about the way in which, for example, the Minister of Health has been exercising his powers of making exceptions for special reasons. In what special circumstances is it proposed to make this delegation? What matters will the Minister take into account when he is giving to county districts that are not excepted councils powers of delegation?

Some people will undoubtedly feel that the whole idea of delegating town planning powers to district authorities is dangerous, but I must confess my belief that provided the development plan is treated on a wide enough scale—in some cases it should probably be treated on a scale even wider than that used by most existing planning authorities—there is a case for saying that the smaller authorities, with their local knowledge and with a local appreciation of what was involved, can exercise functions of control of development.

The danger is that they may wreck the whole plan by acts that may seem to them to be quite harmless acts, but are ill-judged enough to wreck the whole idea of the plan. We must safeguard ourselves against that danger. At the same time, if the plan is adequately appreciated by most district councils, if the planning authority goes to the trouble of consulting them, and explaining the details of the plan, most district councils can be relied upon to play their part in seeing that the spirit of the plan is maintained.

On the other hand, many district councils will be very disappointed to learn that, apparently, there is not to be a wider degree of compulsory delegation. In the Standing Committee on the Local Government Bill there was a good deal of argument to the effect that many local authorities with a population of under 60,000 are well qualified by experience and by everything else to exercise these powers. It is my bounden duty to bear witness to the fact that I think the Borough of Widnes is one of those. There will be many local authorities whose officers have had considerable experience, and they will be wanting to know and will be watching cautiously and hoping that the Minister will give some indication tonight what kind of requirements he will stipulate and what kind of factors he will take into account.

I think that my hon. Friend was wise to move for a debate on these Regulations, not because, in general, one objects to the idea of delegation at all, but simply because Regulations are obscure, as they lead to a great deal of speculation among local authorities, both among the larger and the smaller authorities. I hope that the hon. Gentleman will take an opportunity at this reasonably early hour of giving us a disquisition on what is the policy of the Government on delegation, how far they want to go, and the kind of guidance they will give to authorities with regard to delegating these powers.

8.52 p.m.

The Parliamentary Secretary to the Ministry of Housing and Local Government (Sir Keith Joseph)

Hon. Members who have spoken in the debate have approached these Regulations in a spirit of constructive inquiry, and I shall try to answer their questions.

The hon. Member for Fulham (Mr. M. Stewart) has spoken of his relationship with me when we might have finished up as opponents in the same constituency. He has not mentioned, however, that we are both seeking, as townsmen, to understand for the first time the intricacies of town and country planning. He and his hon. Friend the Member for Widnes (Mr. MacColl), who seconded the Motion, have rightly questioned whether the purpose of town planning can be safely reconciled with delegation of some of its functions, and it is to that that I must address myself before describing in detail the Regulations themselves.

It seems to me that planning has to try to reconcile two apparently conflicting principles: on the one hand, that development plans should be made by the elected representatives on the basis of an area as a whole; and, on the other hand, that the elected representatives and the inhabitants of individual places within that area should be able to decide within the development plan as much as possible of the details of local development.

Hon. Members have rightly asked, from both points of view, whether the larger authority is retaining effective overall planning control, and, on the other hand, whether there is going to be an effective transfer of planning power to the smaller authorities. This has been discussed for a long time. The solution envisaged in the 1947 Act was to give county councils, as local planning authorities, control of the development plan but to encourage delegation of the control of the development itself within that plan to county districts.

Regulations were made in 1947 for this to occur on an agreed basis in each area, but at that time the development plans themselves had not been drawn up, and it was always thought that local planning authorities would have to reconsider their delegation arrangements as development plans in their areas came to be approved. This process of reconsideration of delegation arrangements was caught up in the general review of local government functions which has been taking place from 1955 onwards, and since then there have been a number of discussions with the associations of local authorities.

In 1957 the White Paper on Local Government Functions said that county councils could retain overall responsibility but that within this local authorities with more than 60,000 population should be given more planning power. After further discussions, the Regulations which are the subject of this Prayer were published.

I will now go through the Regulations briefly, answering, on the way, questions which the hon. Gentlemen have asked, and then try to sum up at the end. As the hon. Member for Fulham rightly observed, Regulations 3 and 4 are really only the re-enactment of the relevant 1947 Regulations. They reserve the right of local planning authorities, with the consent of the Minister, to agree the delegation of power under Part III of the Act.

It is Regulation 5 which is new. Regulation 5 requires local planning authorities to delegate powers under Part III and VIII of the 1947 Act in the manner set out in detail in the Schedule to county districts with populations of 60,000 or more—they are called excepted councils—which so claim within a defined period. That requirement under Regulation 5 is limited to county districts with populations of 60,000 or more. Also, Regulation 5 permits county districts with smaller populations to apply to the Minister to be treated as excepted councils and authorises the Minister to agree if he is satisfied that there are special circumstances justifying this.

Quite understandably, I am now asked what these special circumstances are. No criteria have been drawn up by my right hon. Friend, but I think I can safely say that he will, obviously, take into account, among other things, the size of the local authority applying to be treated as an excepted council. Obviously, the nearer it comes to having a population of 60,000, the more will be its chance that it will not be excluded on grounds of size. Obviously, also, he will take into account the probable rate of growth of the local authority, and I think he will consider, also, its record and its interest in planning matters. I imagine that another criterion might well be the extent to which the authority is, as it were, easily physically identifiable. These are only some of the considerations which will be taken into account. I must reserve to my right hon. Friend freedom to consider each case upon its merits in order to decide whether there are the special justifying circumstances mentioned in this part of Regulation 5. The next part of Regulation 5 excludes the Metropolitan Area itself and the National Parks from the effect of these Regulations.

We then come to the Schedule, which defines the powers which must be delegated to the excepted councils. They are all the powers in Parts III and VIII of the 1947 Act, broadly the powers which deal with control of development as opposed to the definition of development, except Sections 25 and 29 of the Act. As the hon. Member for Fulham correctly divined, these did not need to be delegated because they were already given to county districts concurrently with counties by the 1947 Act. He correctly stated, also, that powers connected with minerals are excluded from automatic delegation, although, of course, they may be delegated by agreement under Regulation 3.

Section 25 concerns agreements with developers, and Section 29 covers preservation orders for buildings. These are the two sections which concurrently remain with both authorities, as they have since 1947. Counties and county districts, therefore, have parallel powers, in these matters, but any disagreement between them would fall to be settled by the Minister, whose consent is needed for the exercise of powers by whichever of the two authorities chooses to exercise them. It is provided, further, that the county is required by paragraph 1 (2, c) of the Schedule to consult with the county district before making any decision.

I come now to the one major limitation of delegation, which is set out in paragraph 1 (2, a) of the Schedule. The county district must obtain the written consent of the county before permitting development which conflicts with the development plan or with proposals amending the plan approved by resolution of the authority and communicated to the county district. It seems to me that this is the fundamental protection that the authority drawing up the development plan, namely, the county council, must have if the dangers foreseen by the hon. Member are to be avoided. It is normally, of course, a consultation that will occur and does occur in the normal friendly relationship between all planning authorities, but this gives a formal limitation to the power of the county districts to authorise any development that is not approved by the development plan.

The only other limitation is in paragraph 2 of the Schedule. This gives counties the right to exercise powers under four separate Sections of the 1947 Act when in their view county districts have either refused or neglected to exercise their own delegated functions. I will run briefly through these four Sections. Section 21 covers the revocation and modification of planning permission. Section 26 covers the discontinuance of authorised use. Section 28 covers tree preservation orders. All these are subject to the Minister's consent. So that the county would have to prove to the Minister's satisfaction that the action which it proposes to take was justified on merits. It cannot merely say, "We decree that the county district has refused or neglected to carry out its delegated functions". It has to satisfy the Minister that this is so and that its intervention was justified on merits. Obviously if the county district objects it would be enabled to put its views to the Minister, and there is normally, in such circumstances, a public inquiry.

Section 23, the fourth of these Sections on which a county council can intervene on the grounds of refusal or neglect, covers the enforcement of planning con trol and enables the county to ensure compliance if for any reason the county district fails to do so. In this case, appeal is not to my right hon. Friend but to the courts.

These are all reserve powers, and they are unlikely to be used except very rarely since we expect a continuance of the good relations between all local authorities which we have come to accept. It is, of course, possible that these reserve powers might be used in such circumstances as follows. Suppose that a county district dislikes a project but not enough to be willing to pay compensation which might fall on it under Sections 21, 26 or 28. Suppose that the county might be willing to pay compensation that would be involved if it took action to stop that development. Here would be a case where the reserve powers would be useful and might be implemented without any disagreement whatsoever, only, obviously, on the consent of the Minister.

So much for the four cases where the county council can intervene. The Schedule goes on to permit county districts to refer certain applications for development and applications to determine whether permission is needed under Sections 14, 17 and 18 of the Act to the county. Here we are trying to meet unforeseeable cases which might arise where a county district might take the view that a particular development affected areas outside its own and that the decision therefore should be taken by the larger authority. That is just one example of the use to which this power to refer decisions might be put. However, I emphasise to the hon. Member for Fulham that this is no derogation of the delegating of powers since this is invoked only on the initiative of the country district. It is not the case that the county council can reach out and intervene under Sections 14, 17 and 18 of the parent Act. Intervention can be made only on the invitation of the county district.

The Schedule next requires county districts to keep the county informed of all decisions taken, an essential step if the county is to retain over-all control. Finally, the Schedule lays down that the county district should bear compensation payable as a result of its exercise of delegating functions except in cases where the county has agreed, on being approached before the decision is taken, to bear the compensation wholly or in part.

So much for a brief description of the Regulations. May I now try to answer the hon. Member for Fulham by summing up the powers that will rest on either side as a result? The county council will have drawn up and will retain the right to draw up the development plan. In the circular which my right hon. Friend sent out with these Regulations, he urged that full consultations should take place at the development plan stage and that wherever the county district had suitable staff it should be asked to prepare the original survey. But the power to prepare the development plan lies with the county. It has to prepare the plan and under the Regulations it must be informed of every decision taken by the county district, whether in accord with the development plan or not. The county has the added protection that its written consent has to be obtained for any approval to be given to any sort of development that falls outside the development plan or outside any proposals to amend the development plan approved by resolution of the council and notified to the county district.

Hon. Members might say, "Very well, the county is protected so far, but what happens if the county district misinterprets the development plan and in all innocence, or even without innocence, grants permission for something which the county believes to be outside the development plan?" Two things are in either the regulations or the circular to cover this point. In the first place, my right hon. Friend is encouraging all county councils to define in more detail by written statements the exact requirements of the development plan. A circular stressing the importance of this in the new circumstances is in preparation now.

Secondly, since the county is informed of all decisions, it is in just such a case where a county district has in all innocence stepped outside the development plan that the county council would be entitled to invoke some of its reserve powers under Section 21 or Section 26 and seek the consent of the Minister to vary, revoke, or modify or discontinue a planning permission. In such circumstances, a county council would have to accept responsibility for compensation.

Mr. M. Stewart

The Parliamentary Secretary has said twice that where the county council wants to exercise its reserve powers under Sections 21, 23, 26, or 28 it has to obtain the consent of the Minister. It could not just say to a county district, "You are not doing the job, so we are going to do it." Where does that power appear in the Regulations? Paragraph 2 of the Schedule says that it can do it where in its opinion the county district has refused or neglected to exercise its delegated function, but is there anything in the Regulations themselves?

Sir K. Joseph

No, we have to go back to the parent Act, and in three of those Sections—I think they are Sections 21, 26 and 28—the Minister's consent is required. So much, therefore, for the position of the county. I hope that it will be seen that the county retains an effective over-all planning control. Now what about the county district?

Mr. F. V. Corfield (Gloucestershire, South)

The Parliamentary Secretary tells us about the safeguards for the county council. In cases where the delegated local authority refuses permission, as such authorities are apt to do with certain unpopular types of development such as caravan sites, the result will be that where there is a demand for sites, the county council will have no alternative but to force a smaller authority, where power is not delegated, to accept caravan sites to its detriment and to the advantage of other authorities. Is there any means whereby the county council can insist that a rural district authority can alter a refusal into an approval?

Sir K. Joseph

I must confess that I am not in a position to answer that interesting point, but I will look into it and will send an answer to my hon. Friend. Of course, he is assuming, as he has a right to assume since we have to look at the exceptional cases, that there is not good consultation and relationship between the authorities concerned, but I will look into that point.

I was going to define briefly the position of the county district and to see whether delegation is, in fact, an effective transfer of power. Here I would say that excepted councils—that is to say, those with a population of 60,000 and over and those who so claim the status of excepted councils—under Regulation 5, will obtain complete freedom of planning control within the development plan. The only limitation upon this control is if the county council can satisfy the Minister that the county district or non-county borough has either refused or neglected to carry out its delegated functions, and in that case one must say that the county district has only itself to blame.

It is true that the county district has a power to refer decisions under Sections 14, 17 and 18 to the county council but, as I have stressed, this is entirely on its own initiative and does not minimise the delegation to it in any way. The only other effective limitation on its delegated powers is that, as the hon. Gentleman said, mineral workings are excluded from the delegation unless there is agreement to that effect.

The fact is that neither counties nor county districts can operate without considering each other. Neither can expect unrestricted autonomy. A pattern of delegation is set out for excepted councils in the Regulations. With other councils my right hon. Friend expects to be kept informed in due course of the arrangements made for appropriate degrees of delegation which he urges upon county councils in the circular which accompanies the Regulations. Generally we can expect two-way co-operation between those concerned, but it is only proper that there should be machinery provided for those exceptional cases where co-operation is less than complete, or even where a genuine misunderstanding occurs.

I therefore maintain that excepted councils are left with virtually full power of decision within the development plan. They will have the job of controlling local development, subject to conforming with the development plan, but if this is to be achieved to the satisfaction of everyone, the development plan must be crystal-clear, and there must be the closest co-operation between the technical staff and the authorities concerned. County districts which are not excepted should also have suitable degrees of delegated powers tailored to fit the agreement of the county and themselves, and this is urged in the circular, though not in the Regulations, and will be watched by my right bon. Friend, who has asked to be kept fully informed.

I contend that these Regulations in a difficult field strike a balance, leaving the strategic decisions to be made by the county council and the tactical decisions, within the broad strategy, by the county districts, and I hope very much that I have been able to answer satisfactorily the questions asked.

Mr. M. Stewart

Before the Parliamentary Secretary sits down, may I press him again about paragraph 2 of the Schedule? Having consulted the parent Act, I understand that if, for example, an order is made under Section 26 of the Act requiring that buildings should be altered or removed, that order, whether made by a county or by a district, requires the consent of the Minister. But what we are discussing now is who has the power to make the order and submit it to the Minister for confirmation, the county or the district? As far as I read the Regulation, if the county thinks the district is not doing that job well, it can take the job away from the district and its own judgment is sufficient for that. It does not have to ask the Minister and can take to itself the power of making the order, though it will still have to submit it to the Minister for confirmation.

Sir K. Joseph

I take the hon. Gentleman's point. The answer is, I think, that the county council can make an order, but it is ineffective until the Minister has given his consent, and the Minister would not give his consent without seeing whether there was any objection from the county district, and if there was an objection he would normally hold a public inquiry.

Mr. M. Stewart

I thank the hon. Gentleman for his explanation, and I beg to ask leave to withdraw the Motion.

Motion, by leave, withdrawn.