HC Deb 02 June 1960 vol 624 cc1725-31
Mr. Graham Page

I beg to move, in page 23, line 33, to leave out subsection (2) and to insert: (2) A person against whom proceedings are brought under this section and who alleges that the failure to take any steps required by the enforcement notice was attributable in whole or in part to the default of another person shall be entitled, upon information duly laid by him and on giving to the prosecution not less than three clear days' notice of his intention, to have that other person brought before the court in the proceedings. This Clause deals with the enforcement of the enforcement notice. It deals with the position after there has been an enforcement notice. Under the 1947 Act the notice will have been served upon the owner and the occupier. The notice may be with regard to the use of the land. In that case subsequent proceedings before the magistrates will be taken under the 1947 Act against the person who is using the land in contravention of the enforcement notice.

It may also be an enforcement notice dealing with development of the land. In that case the failure to comply with it will be dealt with under this Clause, which deals with requirements of notices other than the discontinuance of a use of land.

If an enforcement notice is served in accordance with the 1947 Act on the owner and the occupier as is required by that Act, the summons before the magistrates if the notice is not carried out will be a summons to the owner under this Clause, and to the owner alone. He will have no defence whatsoever to that summons, unless he has disposed of the land and can bring the new owner into the proceedings with the allegation that the new owner is responsible for the failure to observe the enforcement notice. Apart from that, he will have no defence.

If he is still the owner of the land and his lessee is really responsible for the failure to comply with the notice, the owner will still be subject to the penalties under this Clause. It is true that under 'the next Clause he may apply to the magistrates for leave to enter on the land and remedy the position, but under this Clause he is absolutely liable and, as it stands, has no way of defending himself against the allegation that the notice has not been complied with.

The Amendment is an effort to bring into the Clause a very well-known procedure when enforcement notices result in a summons before magistrates. In innumerable cases under Statute law, Section 290 of the Public Health Act is applied. If one party or the other is served with a summons alleging that an enforcement notice—such as a sanitary notice, a dangerous structure notice under the Public Health Act, or, more recently, a notice under the Clean Air Act—has not been complied with, the party upon whom the notice is served has the right normally under the present law to bring before the court the person whom he alleges is truly responsible for the failure. He has to satisfy the court that he, too, has taken all reasonable steps to comply with the notice. If someone else is entitled to exclusive occupation of the land, it is difficult to know how the owner can comply with the notice, except by a long procedure before magistrates to get leave to enter on the land and comply with the notice.

The Clause as it stands gives an owner served with a summons the right only to bring in a new owner to whom he has disposed of the land. The Amendment would allow any owner so served with a summons to bring into the proceedings the person whom he alleges is truly responsible.

When a similar proposition was discussed in Committee my hon. Friend the Parliamentary Secretary used these words in describing the reason for refusing to the owner any defence to a summons: …it is because we want to establish certainty that we have to pick on one person who shall primarily be responsible for seeing that the law is carried out. If it was merely a civil matter, I would not complain. Here it is a criminal matter. We are creating a criminal offence by a person who may not be in any way responsible for the commission of that offence. We are doing it, as was admitted by my hon. Friend the Parliamentary Secretary, as I read his phrase, for mere administrative convenience. He said, "We have to pick on someone, so we will pick on the owner".

He also said: We have to fix upon somebody so that there shall not be a constant attempt to pass the buck between, perhaps, the original developer and the current developer or between a lessee and a lessee. We thus fixed upon the owner". 8.15 p.m.

This is the problem which arises in every case of an enforcement notice under other Statutes. It is for the local authority applying for the summons under the enforcement notice to satisfy itself that it is issuing the summons against the person truly responsible. If the local authority fails to choose the right person, the person whom it has chosen to proceed against has the right to bring in the person truly responsible.

That is not so under the Clause as it stands at the moment. The person against whom proceedings are taken cannot bring in the person truly responsible. In excusing this Clause my hon. Friend the Parliamentary Secretary said that the Government had done this … so that we can find somebody on whom can be laid the responsibility for abating the unpermitted development."—[OFFICIAL REPORT, Standing Committee A, Tuesday, 17th May, 1960; c. 250 to 252.] That is an astonishing declaration of principle. An offence is being created against a person who it is frankly admitted cannot be responsible, but the Administration is to pick on him because it has to pick on somebody and make that person responsible, because it is inconvenient perhaps to find out the real person responsible. It cannot be because they cannot trace the real person involved. It must be possible to trace the owner and the occupier, because it was necessary in the first instance under the 1947 Act to serve the enforcement notice which must give rise to the summons on the owner and the occupier. Therefore, the local authority will know who is involved.

This is an important matter. It is not mere administration. An important principle of law is involved. I remind the House that we are now on that Part of the Bill which applies generally and not merely to caravans. We are altering the general law applying to enforcement notices under the Planning Acts, and we are applying it in a way which has never been recognised in connection with enforcement notices under any other Statute.

Sir K. Joseph

My hon. Friend the Member for Crosby (Mr. Graham Page) has made a very fair statement of the two sides of the argument which we had in Committee. He has, perhaps somewhat naturally, minimised two of the strongest elements in my side of the argument. He has minimised, first, the protection given to owners. I freely admit that it would be wrong to impose obligations on owners without making absolutely sure that they have ample protection. My hon. Friend has minimised, secondly, the confusion which can be caused by the use of Section 290 of the Public Health Act. The whole discussion is about the method of ensuring that abatement can be secured of unpermitted development.

I want at the start of the argument to dispose of one feature of what my hon. Friend said. He put much weight on the fact that, as he said, an enforcement notice is a criminal matter. This is just not so. Being served with an enforcement notice does not make a criminal of anybody, but being in breach of an enforcement notice does. What we are discussing is the service of an enforcement notice and whether it should be on the owner or on some other interested party. It is only the service which we are discussing. If the owner complies with the enforcement notice he is not in breach of it, and if he is not in breach of it there is no criminal offence.

My hon. Friend spoke as if it was absolutely simple to establish who was responsible for any unpermitted development. He said that it is either the owner or the occupier. In these complicated times there are all sorts of interests which might be involved. They may be developers. They may be occupiers, they may be owners, or they may be neither. There may be tenants, sub-tenants, and contractors of each of those parties. There may be agents of each one of those parties and of each contractor.

To leave the abatement of an unpermitted development to the pinning of responsibility for the development which would arise from the use of Section 290 would achieve nothing, I suggest, but confusion. It is necessary, if the enforcement of planning law is to be effective, that one person should be unambiguously responsible. Now, of course, I must be able to assure the House that one person—in this case the owner—has adequate protection.

I refer to two other matters. As my hon. Friend fairly pointed out, Clause 32 gives the owner power to carry out works on the property. Section 24 (2) of the 1947 Act gives him power to recover the cost of any work he has to do on the property from whoever is responsible. I make no apology for repeating that the object of this combination of provisions is to secure that there is one person unambiguously identified, the owner, who shall be responsible for abating unpermitted development which is the subject of an enforcement notice. But it is not something on its own. It is grouped with provisions which give the owner power to abate an unpermitted development despite the occupation of other parties and which further enable him to recover the cost of so doing. I hope that I have been able to satisfy my hon. Friend.

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

I hope that my right hon. Friend will look at this matter again. Although my hon. Friend the Parliamentary Secretary has replied with his usual skill and courtesy, I am not satisfied. We hear about "passing the buck", but I think that the position here was quite fairly stated by my hon. Friend the Parliamentary Secretary when, in Committee, referring to the safeguards given to the owner, he said: First, he has the right to recover, if he carries out the abatement himself, the cost against the tenant, occupier, lessee or sublessee, or whoever it may be, who has offended if it is not the owner who has offended. We have an admission there that it may well not be the owner who has offended. My hon. Friend went on: Secondly, he has the powers to which my hon. Friend referred, under regulations made under Clause 30"/>.—[OFFICIAL REPORT, Standing Committee A, 17th May, 1960; c. 252.] Surely, that is where the buck-passing will go on. A local authority is given the opportunity to pass the buck to the owner instead of making a genuine effort to find out who is responsible.

With great respect to my hon. Friend, I think it is really a side issue to quibble about the words used by my hon. Friend the Member for Crosby (Mr. Graham Page) when he spoke about this being a criminal matter. As is fairly admitted by my hon. Friend the Parliamentary Secretary, the truth is that the owner may be involved in criminal proceedings and be convicted of a criminal offence for which he may not himself be responsible. I confess that I find that thoroughly unsatisfactory in a Bill of this kind.

Amendment negatived.

Mr. H. Brooke

I beg to move, in page 24, line 13, at the end to insert: (5) In this section the expression "owner" in relation to any land, means a person, other than a mortgagee not in possession, who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the land or, where the land is not let at a rack rent, would be so entitled if it were so let. If the Amendment were not made, the word "owner" for the purposes of the Clause would be defined as in Section 119 of the 1947 Act, because Part II of the Bill is to be read as one with Part III of the 1947 Act. It seems to the Government right that we should insert here a slightly amended definition of the word "owner" in order to exclude the agent who is merely receiving rent as agent for a principal.

The only respect in which the 1947 Act definition is altered is that the two words "or agent" are excluded after the word "trustee In the context of Clause 31, and with the possibility of criminal liability, it seems right to exclude a person who is doing no more than receive money as agent for a principal because the liability should rest appropriately on the principal and not upon the agent.

Mr. Graham Page

I call attention to the word "trustee" in this subsection. If a trustee is included in the definition of "owner", he will be one of those who may well suffer under Clause 31, as I explained just now. He will be an owner who may, as trustee, in fact, be quite incapable of seeing that an enforcement notice is complied with, but as owner he may be summoned and convicted.

Amendment agreed to.