Clause 41.—(APPLICATION OF PART II TO SPECIAL POWERS OF CONTROL.) (Hansard, 27 July 1960)

§ Mr. H. Brooke
I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment needs to be read in conjunction with the following Amendment in page 27, line 13, which seeks to insert new Clause C, with the new Schedule B, and with two small consequential Amendments thereafter. It looks formidable but, in fact, this is nothing but an honourable attempt by the Government to meet a perfectly legitimate criticism, which was first voiced in Committee by my hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell) and which received other support.
That criticism was that subsection (1) of Clause 41 enabled the Minister to make regulations, and the suggestion was that there was no reason why, instead of giving that power to the Minister, the actual application should not be set out in full in the Bill. The Government examined this and, as a result, it has been found possible to meet this criticism, so there will be no question of passing the Bill with a power to the Minister to make unknown regulations applying the new procedure as regards enforcement notices in the Bill to notices served under Sections 30 and 33 of the 1947 Act. We are leaving out subsection (1) and propose to insert the new Clause C.
The meat of the matter is actually in Schedule B. and the House will probably wish me, without going into great detail, to explain that Schedule. Part I of the Schedule deals with notices that may be served under Section 30 (8) of the 1947 Act; that is where alterations have been made to a building of special architectural or historic interest in contravention of the terms of that Section. Part I simply and solely makes provisions in regard to such notices corresponding to the provisions in this Bill relating to enforcement notices in so far as these are applicable.
I will willingly go into further detail if it is desired, but I can assure the House that there is nothing here except a suitable application of the Clauses of the Bill relating to enforcement notices so that they will suitably apply to the case of alterations to buildings of special architectural or historic interest to 1686 which, as the House will remember, Section 30 of the 1947 Act refers. Part II of the proposed new Schedule B contains similar provisions in regard to notices served under Section 33 of the 1947 Act. That is a quite separate matter. Section 33 is concerned with the position that may arise where the condition of any vacant site or other open land is injurious to amenity. As with Part I. Part II simply applies the general enforcement provisions in this Bill so that they will fit accurately to the case of the vacant site or other open land.
However, in this instance—that is to say, in Part II—there is one important difference. If hon. Members will look at paragraph 10 of the proposed new Schedule they will see that it preserves the present right of appeal to the magistrates' court against notices under Section 33 of the 1947 Act, whereas appeals under Clause 30 of the Bill will lie to the Minister and not to the court. It seems to the Government that this is the more appropriate course in that case, because the questions which may arise on a notice under Section 33 will depend very largely on the local circumstances. They will never involve issues of planning policy, and it is the issues of planning policy that will come to the Minister under the Bill.
The grounds of appeal to the magistrates' court are set out in paragraph 10 of the Schedule, and the House may notice that they are somewhat wider than the grounds of appeal allowed by the present regulations under Section 33 of the 1947 Act. That is deliberate. It is a further attempt to meet criticisms of the present regulations which were voiced in Committee. That paragraph is the only one to which I should specifically draw attention. Apart from that one point, that these appeals, for the reason that I have explained, are to lie to the magistrates' court and not to the Minister, the whole of this new Schedule B is designed simply to apply in suitable terms the enforcement provisions in the Bill to the special cases in Sections 30 and 33 of the 1947 Act.

§ Mr. Ede
The heading to Part II of the proposed new Schedule B is: Notices relating to Waste Land, etc. Can the right hon. Gentleman say whether this includes land which is generally described as "waste of the 1687 highway", or is it just some tract of land that has not been put to any particular purpose?

§ Mr. H. Brooke
I think I can best answer the right hon. Gentleman by referring to Section 33 of the 1947 Act. The words there are quite open. Section 33 says: If it appears to a local planning authority that the amenity of any part of the area of that authority, or of any adjoining area, is seriously injured by the condition of any garden, vacant site or other open land in their area …". There is no limitation.

§ Mr. Graham Page
I do not think that I can let this Schedule go through without expressing surprise about paragraph 10 which my right hon. Friend was explaining and which retains the right to go to the magistrates on appeal.
Under the existing law there are several procedures of appeal—to put it briefly, either to the Minister, to the magistrates or to the High Court. The whole purpose, as I understood it, of Part II of the Bill is to streamline those three procedures and bring them entirely through the procedure of appeal to the Minister and thence to the High Court on a point of law.
In fact, throughout the Committee stage when I put forward certain proposals for splitting the right of appeal away from the Minister when there were established rights which were purely subjects of law, I was met with the argument that the purpose of this Bill was to streamline it into one form of procedure. If we are to leave paragraph 10 as it is, we shall get into great difficulties in future. In one small section of the whole procedure of appeal from town planning decisions and from enforcement notices we are having the procedure of appeal to the magistrates. It will be in very few cases, but in those few cases it will be an abnormal procedure.
I must express surprise that after the principle of streamlining has been so expressed by my right hon. Friend throughout the stages of this Bill, we should find that this procedure is being retained at the last moment.

§ Mr. R. T. Paget (Northampton)
The right hon. Gentleman assured my right hon. Friend the Member for South Shields (Mr. Ede) that the heading to 1688 Part II of the proposed new Schedule included waste of the highway. Is that so?

§ Mr. H. Brooke
If I may have the leave of the House to speak again, every Minister is cautious about expounding existing Acts of Parliament but, as I understand, the words any garden, vacant site or other open land in their area are not limited in any way so as to exclude waste of the highway.
The hon. and learned Gentleman is more learned in the law than I am, and if he says that I am wrong I will, of course, accept his opinion, but I do not see any exclusive limitation here.

§ Mr. Paget
On the contrary, I do not for a moment wish to say that the right hon. Gentleman is wrong. I can assure him that he is mistaken if he thinks that I am more learned than he is. What I want to know—and surely, if we are being asked to legislate about this matter we are entitled to know what we are legislating about—iis what "waste of the highway" is. I have never heard of it. Surely I am entitled to an answer.

§ Mr. H. Brooke
If I may have the leave of the House to speak again, in order that the hon. and learned Gentleman shall have an absolutely correct definition I would refer him to the right hon. Member for South Shields (Mr. Ede) Who first brought this concept and this phrase into our discussions. It certainly does not arise in the Lords Amendments to which I am seeking to get the House to assent, and, although I am always anxious to help the hon. and learned Gentleman, I do not think that I can take the matter any further today in either defining the phrase which the right hon. Gentleman used or expounding Section 33 of the 1947 Act.
In reply to my hon. Friend the Member for Crosby (Mr. Graham Page), I accept all he said about streamlining. Nevertheless, it seemed to the Government that here was a case where there was no mixture of planning considerations with other considerations. Here was a case which depended purely and simply on the local circumstances. That is exactly the kind of thing which the magistrates, with their local knowledge, are so well qualified to determine. I am not such a pedant that I would claim 1689 that because we are laying down a principle for the Bill as a whole there can be no exceptions whatever. The Government approach here is a purely practical one. It would seem more convenient to all concerned, and better suited to the achievement of right decisions on appeal based on local knowledge, if this kind of appeal went to the magistrates' courts.
I can assure my hon. Friend that there was nothing sinister in our intentions, and we were certainly not wishing to undermine our general argument about the desirability of appeals lying to the Minister.