§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Whitelaw.]
§ 4.23 a.m.
§ Mr. William Warbey (Ashfield)
I apologise for arriving somewhat breathless, and also apologise to the Parliamentary Secretary for keeping him so late; but that is the luck of the draw and the intricacies which have been made of the Finance Bill.
The subject with which I wish to deal this morning concerns a small plot of land in part of my constituency at Newstead. This plot is an open space in a privately developed housing estate. The matter was brought to my attention by some of my constituents, who were concerned about a decision made by the Minister of Housing and Local Government under Section 19 of the Town and Country Planning Act.
I think that there is no dispute about the essential facts of the case. The Parliamentary Secretary, in a letter he wrote to me on 24th April—incidentally, it is the only letter I have received from him, because I have not yet received a reply to a letter I wrote to him nearly six weeks ago—confirmed that in 1953 the local planning authority had given development permission for the erection of a number of dwelling-houses on this estate, known as the Regina Crescent Estate, and had given that permission on the basis of a layout plan which showed this piece of land as an open space.
In March of last year the owner of this piece of land made an application to the local planning authority for development permission for the erection of dwelling-houses. The local planning authority refused consent, whereupon the applicant, instead of appealing to the Minister under Section 15 of the Act, served on the local authority a purchase notice and, when the local authority declined to agree to compulsory purchase, exercised his right to refer the matter to the Minister under Section 19. Had the applicant made an appeal to the Minister under Section 15, there would probably have been a public inquiry and an opportunity for my constituents, the owners of the plots of adjoining land, to put their case before 1438 a Ministry inspector and cross-examine witnesses. But that procedure was not followed, and under the Section 19 procedure there is no provision for a public hearing.
The Minister then proceeded to make a determination under Section 19. I want to emphasise that in so doing he had to decide two questions. The first was whether the land had become incapable of reasonably beneficial use. The second was whether, if he decided that it had become incapable of reasonably beneficial use, he should either confirm the purchase order or grant permission for development. If the Minister, in making his first decision, had decided that the land had not become incapable of reasonably beneficial use, that would have been the end of the matter and, in effect, the determination would have been that the land should remain as an open space. Therefore, this was the vital decision in the case.
In writing to me, the Parliamentary Secretary said that there was a hearing before a Ministry inspector. The persons present at the hearing, however, were informed that two alternatives were to be considered, namely, whether a purchase notice should be confirmed or whether permission to develop should be granted. It therefore follows that the Minister had already, on his own account, made a decision on the first point, that the land was not reasonably capable of beneficial use. He made this decision on his own account and then held the hearing, at which only two parties were represented, namely, the applicant and the local planning authority.
At that stage, the two sides were confronted with those alternatives. Naturally, the applicant was concerned either to secure a confirmation of the compulsory purchase order and, therefore, to get payment for the land, or, alternatively, to get permission to develop it. At that stage, the local planning authority could be concerned only with seeing that the purchase notice was not confirmed, because, naturally, the local planning authority did not want to be put to the cost of buying a piece of land at the expense of all the ratepayers which could be beneficial to only a few of them.
1439 No one was present at the hearing who could put forward the third alternative, that the land should remain as open space. There was no one who could state that case or cross-examine witnesses upon it. This situation arises, I suggest, because the Minister, on his sole responsibility and, in effect, without taking evidence from the parties concerned, had already decided that the land was not capable of reasonably beneficial use. I suggest that that decision was wrong in equity, not properly based on the facts of the case and also probably wrong in law.
The Minister contends that the question of the land remaining as open space was not one which anybody had any reason to consider likely to happen. He has said in correspondence with me that although, in 1953, the local planning authority granted development permission on the basis of a plan which showed the land as open space, nevertheless the local planning authority did not lay that down as a condition. I should have thought that the fact that that authority's decision was based upon a layout plan which showed certain parcels of the land to be developed for the building of dwelling-houses and this piece to remain undeveloped, and that the local planning authority made its decision on that basis, created the substance of an implied condition. In a sense, it confirmed its view of the matter, because when the applicant asked for permission to develop this open last year the planning authority rejected the application.
The owners of the adjoining plots of land had very good reason to believe that the land would be retained as open space, because when they bought their plots of land they were shown the layout plan; they were shown this piece of land marked as open space, and a number of them have said—and I have their names in my files—that they were given definite verbal assurances that this land would remain as open space. In some cases they were informed that it would probably be taken over by the local authority and in other cases the owner discussed the possibility of planting trees and shrubs on it, but, certainly, they were given the impression that this land would remain in that condition more or less permanently.
1440 On that basis they bought their land. Therefore, the existence of this land as open space was an inducement to them to purchase their land, and moreover was actually used as an inducement to them to purchase it. Therefore, their contention—and mine—is that the owner of this piece of land has already enjoyed full beneficial use of it because by showing it as open space at the time when he sold the rest of the land for building he was gaining a benefit. Certainly, it assisted him in selling the land, and probably he got a higher price for it than he otherwise would have done.
As I see it, he has already had his beneficial use, and if he is now able to sell it for building he will get a double benefit out of it, the second benefit on the basis of contradicting the first. This seems to me to be completely inequitable. Although the Parliamentary Secretary tells me that his right hon. Friend the Minister was aware of this when he made his decision, I cannot believe that he was fully aware of all the facts as to be able to give full weight to them in his decision. From whom could he get the information? He certainly did not get it from my constituents, the aggrieved parties. He could only have got it indirectly. He could hardly have got the full story, and, as I have said, he could not have got it in a form which would enable him to give full weight to that side of the picture.
But if the Minister's decision is, as I suggest, for this reason, not really based on a proper assessment of the facts, and inequitable, it is also probably illegal, because when the Minister makes his determination as to whether or not the land in question is incapable of reasonably beneficial use he is required by Section 19 of the Act to take into account only those uses of the land which are defined in the Third Schedule to the 1947 Act. That Schedule refers solely to the limited extension of existing buildings, to developments of agricultural use from existing agricultural use, workings ancillary to the working of mineral rights, and so on.
The applicant had not last any of these beneficial uses because they did not exist at the appointed day. Therefore, in my submission, the Minister really had no right legally to determine 1441 that the land had been rendered incapable of beneficial use, because it is made perfectly clear in the Act that in making that decision he cannot take into account any use of the land other than what is contained in the Third Schedule, which does not cover development from agricultural or amenity use to building use.
If the Minister does not act in accordance with the law there is a remedy provided in the 1959 Act—an appeal to the High Court. But that appeal has to be made within six weeks of the Minister's action and it can be made, as Section 31 of the Act lays down, by any aggrieved person—I stress this—and not merely by the applicant whose application may have been rejected. These certainly are aggrieved persons whose rights have been affected by this decision. They could have appealed within six weeks had they known of the Minister's decision, but they had no opportunity of knowing that decision because it was made privately and as an arrangement solely between the Minister, the local planning authority and the applicant.
The situation arises in which these people, who have had their just expectations defeated by the Minister's decision, have no opportunity to remedy what they believe is a wrong done to them. They cannot have a public hearing, they cannot go before a tribunal and they cannot now go before a court of law. I feel that in these circumstances—there may be defects in the law which I cannot discuss this morning—the Minister ought either to revoke the decision or to suspend it until my constituents have had an opportunity to investigate their legal rights, or perhaps, alternatively, the Minister can suggest a way in which a period of extension may be granted for leave to appeal to the High Court against his decision.
§ 4.43 a.m.
§ The Parliamentary Secretary to the Ministry of Housing and Local Government (Sir K. Joseph)
I congratulate the hon. Member for Ashfield (Mr. Warbey) on the lucidity with which he presented this complicated case, particularly at this hour of the day, and also the hon. Member for Fulham (Mr. M. Stewart) for his attendance here, watching that I do not get anything wrong.
1442 I wish straight away to say that the only reason why the hon. Gentleman's last letter to me has not been answered punctually is, of course, that he has bombarded my right hon. Friend with Parliamentary Questions in the interests of his constituents, and, naturally, one delayed the reply to the letter until the Answers to the Parliamentary Questions had been given.
Secondly, I would say that no one speaks here without a sense of the difficulty of these cases. Where my right hon. Friend has to reconcile both public and private interests—in this case, the private interests of the owners and the legal requirements, there are bound to be difficulties. I do not pretend that the sequence of events has been without difficulty. But I must start off by stressing one thing which the hon. Gentleman did not bring out. Nothing that my right hon. Friend has done interferes in any way with any legal rights, common law rights, or contractual rights, which individual residents in the area may have. Planning permission does not override those rights, and nothing that I shall say in any way minimises any legal recourse which local people may think they have.
I will not go over the facts of the case, but I want to deal with the matters which cause the difficulty here. The hon. Gentleman has explained that my right hon. Friend had, in fact, to deal with two quite separate and successive questions. When the purchase notice is served, as it was in this case, by the owner of the site, there is the question, which has to be decided by my right hon. Friend, whether there is or is not a reasonably beneficial use in the land, a reasonably beneficial use in the interests of the owner.
Let me put it another way. My right hon. Friend has to decide whether the site is capable of a use reasonably beneficial to the owner of the site. The words, I think, are more precise than those used by the hon. Gentleman. I will explain the significance of that later. If my right hon. Friend decides that the site is incapable of a use reasonably beneficial to the owner and only if he so decides—the hon. Gentleman was quite right—he has to deal with the second question, which is whether he shall confirm the purchase notice or 1443 whether he should grant some form of planning permission for the land.
I will address myself, first, to the original question, whether the site was capable of a use reasonably beneficial to the owner. The hon. Gentleman has, I think, wrongly said that my right hon. Friend decided straight away before even a hearing that the land was incapable of a use beneficial to the owner. But, in fact, the situation was quite different. My hon. Friend took the prima facie view that the land was capable of a use beneficial to the owner, and it was because that prima facie view was taken that the owner was forced to challenge the proposed decision and exercise her right to demand a hearing.
There was, therefore, a hearing between the two parties, that is, the owner, on the one hand, and the local authority, on the other. The Act does not require that my right hon. Friend should hold a public inquiry in connection with a purchase notice. The requirement is simply that the parties themselves should have a hearing. The issue here, in this sort of case, is primarily between the parties themselves. The question whether the land is or is not of reasonably beneficial use for the owner is a matter of mixed fact and law upon which the parties can be left to argue. The hon. Gentleman has laid stress upon what he says would be the right of local residents to demand a public inquiry if the owner had appealed against the refusal of the local authority to grant planning permission, but, of course, there is no right, even in planning appeal cases, for the local residents to demand a public inquiry.
After the hearing the inspector concluded that the site was capable of a reasonably beneficial use. My right hon. Friend had to review his recommendation. My right hon. Friend further decided that what he had to settle was not whether the site was capable of reasonably beneficial use, which was the view of the inspector, but whether the site was capable of a use reasonably beneficial to the owner of that site, a slightly different question.
My right hon. Friend decided this question in the negative after taking into account the facts as brought out by the inspector. In reaching his final decision, 1444 it is quite true he is entitled to take into account only uses covered by the Third Schedule, to which the hon. Gentleman referred, which in this case, was such things as agricultural use or use as a sports field. The Schedule is limited, as the hon. Gentleman suggested, but in the planning permission my right hon. Friend ultimately gave he was free to give permission for a use outside the Third Schedule.
I should explain to the House why my right hon. Friend decided that this site was incapable of a use reasonably beneficial to the owner. This particular area is hemmed in and not large enough to lend itself to agriculture or use as a sports field. It was, therefore, clear to my right hon. Friend that the site was really of no reasonably beneficial use for the owner. He asked himself, for instance, whether any possible use was so beneficial that other people might have offered money for the use. Might the local residents, for instance, have thought it worth while to buy it to turn it into a tennis club or playground? My right hon. Friend came to the conclusion that the site was not big enough for that.
A great deal has been said about the previous history of the land and the question whether the owner had already derived benefit from it as a result of the purchasers of the plots surrounding it paying more than they would otherwise, on the assumption that the land would remain an open space. The important thing to remember is that the Minister's task in these cases is to decide whether the land in question has become incapable of reasonably beneficial use in its existing state. He has to consider what beneficial use the land had at the time the notice was served. Whether or not the owner has at an earlier stage derived some benefit from the land is not basic to that decision. He has to consider the land in its existing state, taking account of any existing permissions for development, and any other uses of the land which did not require permission.
An important point in the history of the case, which, perhaps, has been misinterpreted, and to which the hon. Member referred in passing, is that when planning permission was granted for development of the whole estate no condition was imposed requiring the layout of this site as an open space. 1445 The site of the purchase notice area was excluded from the benefit of the main planning permission. It is interesting to remember that three years after the main planning permission was given for the surrounding site the owner of the purchase notice site applied for planning permission in respect of the purchase notice site and other pieces of land, and was refused. He claimed compensation and was paid compensation for the purchase notice site itself of £136. Of course, that will have to be repaid in the new circumstances.
I am explaining this to show that the purchase notice site had a different planning identity, quite separate from the land on which houses were built around the purchase notice site. This is convincingly shown by the fact that planning permission was refused for the purchase notice site in 1956 and compensation of £136 was paid. The purchasers of the plots surrounding it, therefore, were not entitled to assume that the land would be laid out as an amenity open space to serve the estate. The mere fact that this was marked as an open space in the approved layout plan or in their title deeds provided no guarantee of this.
I am not passing comment on their legal rights in connection with their title deeds. Had there been a condition of the permission which required the layout 1446 of the land as an amenity open space, purchasers might have reasonably relied on that condition and it might have been possible to maintain that the land was capable of reasonably beneficial use as an amenity open space in accordance with that condition.
My right hon. Friend decided that this land was not capable of reasonably beneficial use to the owner. The hon. Member complains that no one at the hearing urged that the land should be left as an open space, but the hearing was not to decide the ultimate use of the land, but whether there was, at the moment of service of the purchase notice, a reasonably beneficial use for the owner in that particular site. My right hon. Friend, having made this decision, had to address himself to the second question, whether he should confirm the purchase notice of the local authority or give planning permission. It is important to explain that if, nine months after purchase notice has been served, no action is taken to exclude such an event, the purchase notice—
§ The Question having been proposed after Ten o'clock on Tuesday evening and the debate having continued for half an hour, MR. DEPUTY-SPEAKER adjourned the House without Question put, pursuant to the Standing Order.
§ Adjourned at six minutes to Five o'clock a.m.