HC Deb 01 August 1962 vol 664 cc725-52

10.9 p.m.

Mr. W. R. Rees-Davies (Isle of Thanet)

I beg to move, That an humble Address be presented to Her Majesty, praying that the Compulsory Purchase by Local Authorities (Inquiries Procedure) Rules, 1962 (S.I., 1962, No. 1424), dated 9th July, 1962, a copy of which was laid before this House on 13th July, be annulled. One thing is undeniable; from what the hon. Members opposite have been saying it is clear that Members of the House of Commons would indeed provide a forceful debating assembly in the Common Market. If what we have heard just now is anything to go by, there is not the slightest doubt that, whether or not hon. Members opposite may later want to join us in the Common Market, they will certainly have the courage and nerve necessary for the debates which will take place in due course.

The matters that we are discussing now raise the issue of the liberty of the subject. If there is one thing that is clear it is this: that the subjects that we are about to discuss are among those to which we can make the greatest possible contribution if we should enter the Common Market.

I am sure that those who are interested in the procedure for the compulsory acquisition of land and the procedure relating to the town planning rules and regulations in the event of the acquisition of property, or of applying the rules of procedure that relate thereto, will all agree that in one field at least this country has an over-riding sense of responsibility, and that is to preserve for the people of this country full and fair play in matters which affect their interests and their property. I think that it would have been wholly wrong, therefore, if one had not taken the opportunity tonight to raise this matter by way of a negative Resolution.

I would remind the House that these two matters which Mr. Speaker has given permission to be discussed together and in which in their layout and general format clearly fall to be discussed together, arise originally from the findings of the Franks Committee. Following the findings of that Committee, as the House will remember, the Government passed the Tribunals and Inquiries Act, 1958, and set up the Council of Tribunals. That Council has made various recommendations and, through the Lord Chancellor, have now been laid these Rules.

The Rules are laid under Section 7A and they provide for the widest recognition and for rules to be laid governing these procedures. They are of the greatest importance to many citizens in this country. It so happens that under Section 7A the Rules are not laid by the affirmative Resolution of this House and the matter may be discussed only on a negative Resolution. There are some matters of criticism which I wish to raise tonight. It would be idle to say that in the main it will not be a great event when these resolutions come into effect in October. Dealing first with the general position regarding both of them the situation in the country today is anomalous. I ask the Government to take very careful note that under the town planning regulations, for example, we have four main parties, the applicant, the objectors—I will say more as to who really constitutes an objector— the local authorities and Her Majesty's Government.

If the applicant is refused permission, the whole power of the governmental machinery comes into effect under the town planning regulations. But if, perchance, the applicant is given permission by the delegated authority—usually the local authority—that is an end of the matter and there is nothing whatever that the objector can do. Thus the general position which we find tonight is that there is a substantial difference regarding the procedures which these regulations lay down, which are of great benefit to the applicant, but which may, and indeed frequently are at present, of no benefit at all to the objector. It is fundamental, therefore, that this matter should be discussed. I hope that it will be widely publicised to those who have a real concern in these matters because to the estate agents, the surveyors, the municipal associations, the town clerks and all those concerned with town planning it is of very real importance that those who are engaged in minor capacities in the local authorities, in the county councils and the local councils, should read these regulations and seek to carry into effect the purpose of them in their own affairs.

I give an example from my district. Recently in the town of Birchington there was a great outcry because of a large amount of high building in part of that town which hitherto has had very low buildings, a large number of bungalows and one-storey buildings. As a result, the immediate neighbours to the applicants and citizens and burgesses of the town were in many cases deeply aggrieved by the permission granted by the local authority. Yet once it had been granted it would be impossible for the Minister to over-rule the granting of that permission without having to give compensation to the applicant because the permission had already been granted. Then the Minister refused to accede to the suggestion of a public inquiry. So it came about that there was no real opportunity—whether it was right or wrong I do not seek to argue— for the neighbours or citizens to raise their true and proper objections to what affected the planning of their town.

This is true throughout the country. Consequently, local authorities have asked me to make suggestions on how this should be brought about. Imagine my pleasure to find that at this time the Government have come forward with a code of regulations which in very large effect will enable such matters to be remedied in future. One of the matters for which I ask is that the Government and the Minister, be it the Solicitor-General or the Minister of Housing and Local Government, should make clear to local authorities that they shall give just as much regard to the position of the objector who may be a neighbour or the citizens of the town or societies which often represent themselves in those towns on behalf of burgesses as they will give a fair and legitimate hearing to any other objector. That is part of the very important background to the matters before us tonight.

I shall deal with one or two matters on the planning regulations. As I have indicated, they are substantially the same. One of the most important things is this. The trouble about lawyers—and I speak as one—is that we tend in trying to defend, and legitimately and properly to defend, the interests of those who have matters which ought to be considered, to forget also that housing and town planning construction today is a matter Which requires the greatest possible expedition. Therefore we must try to achieve the objectives we seek and at the same time do so expeditiously.

I was frankly rather worried when picking up the Rules to see that in both cases in paragraph 4 (3), the date, time and place for the holding of an inquiry, be it a compulsory purchase inquiry or a town planning inquiry, shall be fixed but may be varied by the Minister who shall give not less than forty-two days' notice unless all the parties agree to a further period. We cannot amend regulations or I would have asked that this be amended to twenty-eight days instead of forty-two and that the other periods should be shortened by seven days.

At the moment it takes a very long time. By the time the application is put in and has been discussed when there is to be an inquiry there are forty-two days and something like three or four months pass before the inquiry is fixed. Unfortunately, because of the considerable quantity of work which the Ministry has there is usually a further three months before the result is known. The effect of this is a delay of anything from seven to nine months. If in the outcome permission is to be granted that may have a very serious effect on the construction and planning of the work to be carried out.

I ask that if the House passes these regulations as they stand the Minister should send out a circular at the same time asking all local authorities, where possible, to limit that amount of time and not to permit the full forty-two days to run if it can possibly be shortened. I hope the objectors will not be encouraged to try to put off the evil hour, if I may put it that way, for some little further time.

That is one matter. Another matter of importance is contained in paragraph 5 (2). I appreciate the difficulties, but there a discretion is given to the appointed person holding the inquiry to allow any other person to appear at that inquiry in his discretion. There has already been laid down reference to the particular objector, the planning authority and certain other parties, and the question has been raised in another place, and also by the council in its consideration, what would be the position and who would be an objector? Who is the aggrieved person?

For example, supposing that in the instance I gave of Birchington, or in Margate or Ramsgate, a perfectly legitimate policy decision is made by the council that in future it would build all its buildings to a height of ten or twelve storeys. We might well find that all the best people able to give an opinion on this matter were in the local chamber of trade. It may be that there is some local preservation society, or that there is a local association of architects. It may be one of a number of different bodies, and the question which therefore arises in a matter of that kind is that the party aggrieved is not necessarily the immediate neighbour. I am not suggesting that the immediate neighbour is not the person most likely to be aggrieved, but it may be wider than that.

It may be that the town as a whole has taken up a matter of this kind and may regard itself as consisting of aggrieved persons. It is, therefore, of considerable importance that we should have some guidance from the Minister tonight as to who are to be considered the persons who may reasonably appear at the inquiry at the discretion of the appointed person, and what sort of guidance will be given to the inspectors. The inspectors are admirable people, and those of us who know them would pay them the highest tribute for their endeavours to carry out their functions satisfactorily, but, in doing so, what Ministerial guidance are they to receive?

Supposing various local bodies turn up at the inquiry, perhaps represented by counsel, as not infrequently they do. What will the inspector say to them? Will he say that this affects merely a small planning matter, to which they will reply that they know perfectly well that there are plans which will cover the whole town in the same way? What will be his reply in those circumstances? I agree that we must draw the line somewhere, and that we cannot have everybody turning up. Recently, I had the opportunity of seeing the circumstances which arose in the case of the closure of a branch railway line, where the whole town wanted to turn up, but by the common consent of the local community, they decided that it could all be done through their various councils and chambers of trade jointly represented. What happens if people insist on turning up? In this case, one parish council insisted on turning up on its own. There is not all that difference between the closing of a branch railway line and some of the large, major redevelopment schemes in our main towns. I think that is of considerable importance.

This regulation carries into effect in many other regards many of the most important measures. It provides that there should be a full hearing. One of the most important provisions is that the Minister, if so desired, shall send a representative from his Department to attend the inquiry and to explain the reasons for it. Furthermore, the procedure whereby other Government Departments made secret representations, about which we knew nothing, is replaced by a provision whereby these representations shall be open and shall take place at the inquiry. I am sure that the hon. Member for Derby, North (Mr. MacDermot), who sits lonely on the Opposition benches, and who understands these matters so well, will agree with me and with my right hon. Friend that this is an important advance.

It has already been shown that these inspectors are well able to make a written report to their Minister, whether they obtain assistance subsequently from those who are senior in the Department or not—and I care not. Their reports seem good. I am sure that the Ministry have at last come to appreciate that the existence of a report and the fact that the Minister has to reach a decision and to give reasons for it mean that the procedure carries much greater weight with the public.

The Minister has to do this because he was forced to do so by the terms of the Tribunals and Inquiries Act and by many of my right hon. and hon. Friends, some of whom are not in the Chamber at the moment, some of whom are former Cabinet Ministers and some of whom are Ministers today. There was a strong feeling in the Government Department that they should not make public what might be a matter of policy.

In paragraph 6 they have had a crack at introducing this provision by saying that at the inquiry the Minister's representative shall elucidate the statement of the reasons given for the Minister's direction, not being questions which in the opinion of the appointed person are directed to the merits of Government policy ". The inspector may well be in some difficulty in deciding whether to rule that it is a question of Government policy.

I am sure that this has led to great debate in the Ministry of Housing where they no doubt thought that there would be difficulties. I do not believe that there are difficulties. The common sense of the inspectors and the tolerance and generally reasonable attitude of those who appear at inquiries means that this will not work satisfactorily. Many people may ask whether we are not throwing a burden on to an administrator which it is not fair for him to have to carry. But I think that the procedure will work satisfactorily. At the conclusion of an inquiry we shall find that the source of friction and irritation and many of the objections have been removed and that the citizen accepts the position. That is the democratic process.

The compulsory purchase rule works in a different way. There the local authority is put into the position of applicant. The burden of proof is thrown on the local authority to establish its case. There may be objectors to the compulsory acquisition of land. A decision has to be taken by the Minister, and this is a referable issue. The position is quite different. If a local authority is minded to acquire certain land it knows that if it applies the compulsory purchase procedure it may be faced with an inquiry. If, on the other hand, it can persuade someone to purchase the land and gives him permission to develop it—from which there is no appeal—it may later acquire it from him by consent. In that way the authority can get round it without any power of objection or difficulty.

One matter which I have been raising with the Ministry about the future is this. In future there will be a very close liaison between local authorities and property companies and builders. The local authority will probably have some land available. There may be another parcel of land which is not available. The local authority wants to enter into a partnership scheme in which the builders or property companies will develop. The authority wants to be able to control the planning of the land. Thus, if the authority can ensure that the land is taken over by the property developer who acquires it first, it gives permission and pays little heed to the objectors' point of view. The whole matter can then go through easily. If an authority applies the procedure in the Rules, it will be faced with a detailed and almost quasi-judicial inquiry.

I therefore ask the Minister—it is his responsibility rather than that of my hon. and learned Friend the Solicitor-General, who will be dealing with what I may call the Franks side of the matter —to bear this whole question in mind and make it clear to local authorities that, if these Rules do not of themselves suffice to ensure that the proper standards of justice, for both applicant and objector, apply he will not hesitate to take the necessary sanctions to ensure that there is protection for all.

You, Mr. Deputy-Speaker, will have appreciated by now that I do not particularly desire to annul the Rules.

10.32 p.m.

Mr. Niall MacDermot (Derby, North)

The whole House will be grateful to the hon. Member for the Isle of Thanet (Mr. Rees-Davies) for having moved to annul these Rules, even if in a somewhat halfhearted manner as to his desire for annulment. This gives us the only opportunity we can have to discuss and analyse these very important new Rules.

We would all begin by welcoming the Rules, which apparently are the first of a series governing different kinds of tribunals and inquiries which all come within the ambit of the Council on Tribunals and Inquiries. Of necessity most of my remarks will appear critical, because they are directed to raising detailed points. I want to make it clear from the outset that I most warmly welcome the appearance of these Rules. Many of them are only putting now into statutory form the very greatly improved practice which has been adopted for some time following the Report of the Franks Committee.

My first point arises under Rule 2 (a) and is as to the scope of these Rules. They are limited at the moment to appeals under Section 16. I ask for an assurance that it is proposed without delay to publish rules concerning applications under Section 15. Section 16 appeals are the ordinary appeals under the Town and Country Planning Act against a refusal of planning permission. It is laid down in that Section that these appeals shall be dealt with by the same procedure as is laid down in Section 15. Section 15 deals with applications for planning permission which are called in by the Minister and which he himself will decide instead of leaving them to the local planning authority to decide. These are for the most part the more important applications, ones which raise important policy issues. That is why, by and large, the Minister calls them in.

It certainly seems anomalous that we should have the Rules laid down for the ordinary planning appeals but have no Rules laid down for the procedure in what may be the much more important cases coming under Section 15. I can appreciate that one cannot have exactly the same Rules covering both sets of inquiries—in particular, the procedure before an inquiry will be different in the Section 15 case as compared with that coming under Section 16—but bearing in mind that they are important, and one can think of the example of the North Oxfordshire Ironstone case, it is obvious that we should soon have Rules to cover that type of case.

My next point relates to Rule 4 (9), and here I simply ask what is meant by the phrase "person interested". The Rule provides that: The local planning authority shall afford any other person interested a reasonable opportunity to inspect and, where practicable, to take copies of the authority's statement and the other documents referred to in the last foregoing paragraph. In other words, that gives a right to "any other person interested"—whatever that may mean—to see the planning authority's own statement and supporting documents in the same way as the appellant himself will be able to.

I am not sure what is meant by a "person interested." It cannot mean a person with a legal interest in the land, because he is already covered; he is one of the persons whose rights are protected as a Section 37 party. If it means a person who may be injuriously affected, as it were—the kind of objector to whom the hon. Member referred, the neighbouring owner—how is he to be distinguished from any other objector? If it merely means a person who is taking an interest in the appeal, in the ordinary colloquial sense, there would not seem to be any need to define him as a person interested; it would be any person.

I should therefore like to be told what is meant by the term. It is not defined in the Rules. And when a person says, "I am a person interested, and I want to take a copy of your statement," how is the local planning authority to decide whether or not he is, in fact, a person interested?

I turn, next, to Rule 5 (4), and ask to what it is directed. It deals with appeals at the inquiry: Where there are two or more persons having a similar interest in the matter under inquiry the appointed person may allow one or more persons to appear for the benefit of some or all persons so interested. It is already provided in the previous paragraph that any person … may appear on his own behalf or be represented by counsel, solicitor or any other person. He does not need the consent of the inspector for that. Any person who is entitled to appear can be represented by any other person.

What is this Rule directed to? What is meant by "persons having a similar interest" in any inquiry? It is a local interest, or not? And what is meant by a person appearing for the benefit of some other person, as contrasted to a person who represents some other person, which is dealt with in the previous paragraph? I merely seek an explanation, because I cannot follow the distinction.

I move on to Rule 7 (3)—a point touched on the hon. Member. It deals with the question of the duty of the inspector, as it is under these Rules, to … disallow any questions which in his opinion are directed to the merits of Government policy. I can see that one does not want a planning inquiry turned into a wrangle about whether or not the Government are adopting the right policy in a particular matter. But clearly, if one is to be able intelligently to cross-examine a representative of a Government Department at an inquiry, one needs to probe the policy statement that has been made to find out what are the underlying reasons for it, its objectives and what it is trying to achieve so that one can then see whether to apply that policy to the case in hand.

It is always a difficult question for a tribunal to decide what is a matter of fact and what is a matter of policy, and if it is made mandatory here, as it is, on the tribunal to disallow any question directed to matters of policy, is this not going unduly to restrict the discretion of the inspector? Would it not be better to have the word "may" instead of "shall"—in other words, for discretion to be left to the inspector to allow questions of policy matters in so far as they really are necessary to assist in determining the subject matter of the inquiry?

The next point I wish to raise comes under Rule 8 (4), in which it is stated that the inspector shall not permit the production of any evidence which would be contrary to the public interest. Can the Solicitor-General, who many of my hon. Friends will be delighted to see occupying his new office, give some indication of how it is envisaged that the inspector will decide whether any evidence is contrary to the public interest?

One knows of the difficulties which have arisen in the High Court in recent years—and there was the statement by the Lord Chancellor—on matters of privilege. How will this be dealt with at an inquiry at which one may be dealing not only with evidence given by or on behalf of Government Departments, but evidence given by, perhaps, individual applicants who are doing, say, contract work—perhaps secret contract work— for a Government Department? How is the inspector to determine this? Will there be any argument allowed? If so, how will it take place, particularly on the question of whether evidence will or will not be permissible?

I now come to Rule 10 (2), which is the major matter I wish to raise. Some reference was made to it in the Press today, namely, the rights of third parties, as they have been called, to be notified in certain cases of this procedure after an inquiry. The point arises in this way. Following the well-known chalkpit case, it is now, happily, provided in these Rules that when the Minister has received the inspectors' report, if the Minister takes a different view on a finding of fact from the inspector or if, after the inquiry, he receives any new evidence—including expert opinion—or takes into consideration any new issue of fact which was not raised at the inquiry, he must not come to a decision without notifying the parties; that is, the appellant, the local planning authority and any Section 37 party—that is, any person who is interested in the land which is the subject matter of the appeal—who can then make representations in writing or, in other cases, can ask for the inquiry to be reopened.

The important question which has already been raised in another place is why, in those circumstances, should not a third person, as he is called, have the same right. A third person may be absolutely vitally interested in the outcome of the appeal. In most cases he will be an adjoining or neighbouring owner. If I have a house on my land and someone comes along next door where there is at the moment a residential user, and wants to put up a factory, clearly this is going to affect me tremendously. It will affect not only the value of the land but the amenities and the enjoyment of my property. Clearly I am likely to object at the hearing of the appeal. I am a person interested, I presume, within the meaning of this earlier Rule to which I referred. I would be entitled to go to the local planning authority and ask for a statement. I assume that I would be regarded as a person having an interest in the inquiry within Rule 5 (4).

It is recognised that I have a number of rights under these Rules. For example, I have the right to be heard subject to the consent of the inspector. That is under Rule 5 (2). I take it that in the case of an adjoining owner, who obviously would be affected, the inspector would never refuse that consent. Again to the extent permitted by the inspector, I have the right to call evidence and cross-examine witnesses. That is provided under Rule 8 (3). I also have the right to appear by counsel or solicitor or by any other person.

My standing, as it were, at the inquiry is acknowledged and recognised there. I am not a person who has the same legal right as the planning authority or as the appellant himself referred to in fine main body of the Act. But the practice has, of course, arisen under these planning inquiries always to allow third persons to appear and to be heard and to take an official part in the proceedings, and that is given official recognition in these Rules.

As has been pointed out by the Council on Tribunals in the Report which it published in Cmnd. 1787, it has represented to the Lord Chancellor that it considers that these Rules ought to allow a third person, in effect, to have the same facilities as are given under these rules to the other persons referred to there, to reopen the matter and ask for the inquiry to be re-opened. This is put succinctly in paragraph 3 of the Report: It cannot be right for some of those who took part in the inquiry, but not others, to be consulted on these occasions. Paragraph 4 states: It is generally agreed that the present practice of letting in third parties is right, both in justice to themselves and in order to enable the Minister to take the best possible decision with all local opinion before him. But legal difficulties have been raised against the proposal to provide for third parties in the rules of procedure. It is said that this would be to confer legal rights on classes of persons who have no legal rights under the Planning Acts, and perhaps to extend the class of persons 'aggrieved' who can seek remedies in the High Court. It is argued that it would be wrong, under the guise of rules of procedure, to make an important change in the classes of persons who have procedural rights under the Planning Acts. Paragraph 5 says: In view of these legal objections the Council have not felt able to insist on rights in favour of third parties being inserted in the rules. The Report goes on to say that the Council has nevertheless asked for those rights, as it were, in practice to be granted.

With respect to the Council, I should have thought that it was being a little timid in the way in which it presented its argument here. If the procedural rules provided that these third parties should be notified in the same way as the other parties, and given the opportunity to ask for the inquiry to be reopened, I cannot see that that would be giving them any legal rights at all. All that would happen would be that a proper practice would be laid down in these Rules for seeing that justice was done and was manifestly seen to be done and that persons who were vitally interested in the result of the appeal were given exactly the same facilities for making their view known to the Minister.

The reason why the Minister in the first place allows an objector to come along and object is that it is recognised that the Minister cannot fairly decide the matter until he has heard from the inspector what are the representations which objectors want to make about how they would be affected. These representations are not only a matter merely of presenting evidence but include commenting on the evidence which is given by other parties, by the applicant and by the local authority. If the Minister, after the inquiry is all over and after he has received the report of the inspector, is then to take into account other new matter which was not raised at the inquiry, surely it is just as necessary that he should have the comments of those third parties on that new matter as that he should have the comments of the planning authority, of the applicant or of the Section 37 parties.

I cannot see that it is in any way introducing a new principle to say that the third parties should have the same rights as the other parties at this stage, and it is not conferring any legal rights upon them. Nor could it, as I understand the matter, give them any basis for later making an application to the High Court as persons aggrieved. This was one of the arguments used in another place against the proposition which I am advancing. It was suggested that in some way they would be able later to go to the High Court and say that they were parsons aggrieved, when, as is well known, Mr. Justice Salmon in a recent case decided that they were not and could not claim to be. The mere fact that these Rules give a right to appear at the original inquiry, to be represented and to make objections and to inspect the local authority's documents does not confer any such standing as was suggested. I am sure it will not be argued that any of those things would give them any basis on which to allege later that they are persons aggrieved. Why should it, if these persons merely have the same rights, if "rights" be the correct word to use, under Rule 10 as any of the other persons who are dealt with already under that Rule?

Those are the matters I wished to raise. The Council on Tribunals feels very strongly on this point. It is a subject to which it has given great care, and yesterday, with the consent of the Lord Chancellor, it made public the correspondence which it has had with him about it. I ask the Solicitor-General to give some further explanation as to what the real objection is to this provision being made for third parties in the Rules. Even if there is some objection to it in the Rules, cannot the Government reflect again upon the request by the Council on Tribunals that, even if it be thought undesirable to provide for it explicitly in the Rules, these third parties should be able in practice to have the same facilities in the way that hitherto such facilities have always been given in practice to objectors at inquiries?

All the comments I have made have been directed to the Planning Appeals Rules, but they are all equally relevant to the other Rules which, of course, follow them very closely. I shall not go over the same ground.

My final word is to express some surprise that the Council on Tribunals appears only to have taken up this matter in relation to planning appeals. I should have thought that this question of the rights of third parties had just as much relevance in the Compulsory Purchase Rules. It is true that the statutory objectors, as they are called under those Rules, are a somewhat wider class than the more privileged parties under the Planning Appeals Rules, but still one has the position of the neighbouring owner who is not even having any of his own land acquired but who will be vitally affected—perhaps the most forceful objector of all—and who stall will be a third party under those Rules. I should have thought that, under these Rules, he should have had the same advantages of being able to ask for an inquiry to be reopened as third parties under the Planning Appeals Rules.

10.55 p.m.

Mr. James Allason (Hemel Hempstead)

I welcome this further recognition of the position of non-statutory objectors, because in the past, although they would be heard if they turned up at an appeal, they had no rights at all. Their position is gradually improving, as I feel it should.

In May last year the Ministry of Housing and Local Government issued a circular, paragraphs 11 to 15 of which dealt with the notification to the public of planning applications. This implies that the public are entitled to know about these applications and are entitled to put forward objections to them. These Rules make it clear that members of the public can attend these inquiries and put forward their objections. If, however, there is no inquiry, potential objectors are in a more difficult position than ever. I hope that those who take the decision whether to grant an application or refuse it and probably invoke a public inquiry will be even more careful in the future than they have been in the past in ensuring that these non-statutory objectors get a fair crack of the whip.

There is the ordinary case where the planning authority, have notified the local residents that a development plan has been submitted, receives objections to it but nevertheless goes ahead and gives approval to the proposed scheme. There is then no chance of an inquiry. In circumstances like this, the planning authority should very carefully consider the position of the non-statutory objectors, and if possible lean over backwards to refuse the application and thus ensure that there is an appeal.

The Minister may come into the picture in two ways. First, a proposal having been rejected, there is an appeal to the Minister. Instead of ordering a statutory inquiry, he may deal with the matter by means of written representation of the parties. In such a case the non-statutory objectors are cut out and the matter is dealt with directly between the planning authority and the applicant. The non-statutory objectors naturally feel aggrieved at the matter having been settled behind their backs, especially as they were all set to go to the inquiry to register their objections.

The second way in which the Minister may come into the picture is this. In a recent case an application was made to the Minister himself. The Minister did not abide by his own rules and inform the local inhabitants about the proposal, which was to put up a ten-storey block of flats near some houses in Leverstock Green, Hemel Hempstead. He granted planning approval, and the objectors to the scheme feel that they have a legitimate grouse. They consider that there should have been a planning appeal. I welcome the Rules, but I hope that they will be taken further, to ensure that even greater privileges—but not rights—are granted to these non-statutory objectors in the future.

11.0 p.m.

Mr. Antony Buck (Colchester)

I should like to add my congratulations to the Government on bringing forward these Statutory Instruments to incorporate the recommendations of the Franks Committee Council on Tribunals. I particularly welcome Rule 10, which has already been referred to by hon. Members on both sides of the House. I agree with the remarks made by the hon. Member for Derby, North (Mr. MacDermot) about sub-paragraph (2) of that Rule, whereby not all parties who were concerned at the appeal are provided with notice of the Minister's determination not to agree with the recommendation of his inspector. I hope that this can be extended quite simply to ensure that all those who were at the appeal should be given equal rights.

On the whole, however, I commend Rule 10, which incorporates in a statutory form the recommendations of the Franks Committee. It will clear up much of the difficulty which has arisen in cases where the Minister decides not to accept the recommendation of his Inspector.

In view of the lateness of the hour I will confine my further remarks about the Statutory Instruments to one aspect, namely, the position of parish councils. At the moment their position under planning law generally is somewhat unsatisfactory. It would be out of order to go into the matter in detail, but, as my hon. and learned Friend will know, these councils are not informed about planning applications, and a case could be made on another occasion for their being so informed. I am concerned however that their position should be fully protected when there is an appeal.

I ask my hon. and learned Friend to consider carefully whether they should not be named by the Minister as persons to be served with notice of an inquiry under Rule 4 (4, b). I strongly urge that he should so provide. I need not go into the merits of the question. Parish councils may know what is going on in their areas, but it is quite appropriate that they should be informed of the goings on in the village or the area around, and be given an opportunity to consider their position at an early stage, when an inquiry on appeal arises, and to seek legal advice or send their clerks on the appropriate day, or to be represented. I recommend that course.

If the Minister is not minded to take that course, I submit that he should indicate clearly that parish councils are people to be considered and allowed a hearing under the provisions of Rule 5, sub-paragraph (2), which provides that Any other person may appear at the inquiry at the discretion of the appointed person. If my hon. and learned Friend could say that he is minded that they should be allowed to be heard at these inquiries it would go some way towards fulfilling the entirely legitimate aspirations of the parish councils to be kept in touch with the developments taking place within their parishes.

I trust that my hon. and learned Friend will be able to reassure me on those two paints.

11.5 p.m.

The Solicitor-General (Sir Peter Rawlinson)

I am grateful to hon. Members on both sides of the House for the welcome they have given to these Rules, and also for the kind words said by the hon. Member for Derby, North (Mr. MacDermot). These are important Rules, and this is an important subject, as has been indicated by my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies). They are important in the context in which we are discussing them this evening.

The general matters which have been raised by my hon. Friend the Member for the Isle of Thanet, my hon. Friend the Member for Hemel Hempstead (Mr. Allason) and my hon. Friend the Member for Colchester (Mr. Buck) will be noted by my hon. Friend the Parliamentary Secretary to the Ministry of Housing and Local Government, who has been sitting beside me.

I hope that the House will forgive me if I spend a little time over the many matters which I have to answer. The purpose of these Rules is that they should govern the procedure to be followed at inquiries into proposals for the compulsory acquisition of land by local authorities and on appeals to the Ministry of Housing and Local Government under Section 16 of the 1947 Town and Country Planning Act. As has been said by my hon. Friend the Member for the Isle of Thanet, they were laid by my noble Friend the Lord Chancellor under Section 7A of the Tribunals and Inquiries Act, 1958. It is hoped, if Parliament approves these Rules that they will serve as a model for other types of statutory inquiries.

In answer to the one point raised by the hon. Member for Derby, North with regard to Section 15 cases, there are only about 200 compared with the 5,000 which arise under Section 16. Those Rules are not yet in draft, but it is intended to press ahead with them using these as a model.

These Rules have been approved by the Council of Tribunals and they are based on the recommendations of the Council itself. Hon. Members will recollect that when the House considered what came to be known as the chalkpit case, the Council indicated its intention to make a report on the whole problem of handling new factual evidence after the inquiry, and the application of the principles of the Franks Committee to which I will return later. The Council made its report to my noble Friend on 30th March of this year. These Rules are the outcome of its deliberations.

There is only one respect in which the Government have not felt able to go quite as far as the Council would have wished. That has nothing to do with the Rules and I will return to it later. There were two matters to which the Council gave particular consideration concerning these Rules on which they reported to the Lord Chancellor and both arose, one directly and the other indirectly, from the chalkpit case.

The first, which has been touched on already this evening, concerned the question of the procedure to be followed where the Minister proposed to reject the recommendations made by the inspector holding the inquiry. What the Council concluded was that where the Minister proposed to disagree with the inspector's recommendations because of some factor not considered at the inquiry, or because he differed from the findings of fact made by the inspector holding the inquiry, he should give the parties to the appeal the opportunity of making representations in writing before making his decision.

But where, on the other hand, he proposed to depart from the inspector's recommendations, because of fresh evidence, including expert evidence, or the introduction of a fresh issue, he should reopen the inquiry, if any of the parties asked him to do so. The Government fully accept the justice of these recommendations and effect is given to them by these Rules which has been welcomed by hon. Members on both sides of the House.

The relevant Rule referring to expert opinion on a matter of fact—this was raised by the hon. Member for Derby, North—echoes paragraph 350 of the Franks Report, which, I Chink, it is unnecessary for me to cite again. The Franks Committee clearly distinguished between factual evidence, which included expert evidence, received by the Minister after the inquiry, whether from the Government officials or other sources, and the ordinary advice which the Minister gets from the officials.

The Committee believed that the first category should be disclosed and that the second should not. This, as hon. Members will know, agrees with the long-standing practice of the courts in this sphere. The Council of Tribunals accepted that distinction and the Government fully accept that any new evidence, including expert opinion on matters of fact must, and shall in future, be disclosed.

Before I turn to the one matter which appears to have raised most misgiving, a matter was referred to by my hon. Friend the Member for the Isle of Thanet in relation to the amount of 42 days' notice which was given and which he thought was too extensive. The Regulations originally provided for 28 days' notice of the inquiry. This was extended to 42 days because the Council on Tribunals thought that 21 days giving notice of the authority's case should be given to the other side. That time was accordingly extended to 28 days and the whole time was extended to 42 days for that reason. I am sure that the Parliamentary Secretary will have heard what my toon. Friend said about this. One of the matters one wishes to avoid in all these procedures is, of course, delay.

Mr. Graham Page (Crosby)

Before my hon. and learned Friend leaves the question of delay, will he deal with the other matter raised by my hon. Friend the Member for Isle of Thanet (Mr. Rees-Davies), of delay after the inquiry? One appreciates that there is an accumulation of these things in the Ministry, but is there no way of cutting down the period after the inquiry, which sometimes runs into nine or twelve months?

The Solicitor-General

This matter, which as my hon. Friend pointed out causes concern, is at the moment under very careful consideration at the Ministry, I understand, because it is the intention and hope to cut the period as much as possible.

Misgivings which have been expressed relate particularly to the rights of what are called third parties both at the inquiry and after it and when consideration of the kind to which I have been referring arises, that is to say where under the planning rules new evidence arises. This was the second matter on which the Council submitted the special report to the Lord Chancellor in June this year. After the debate in another place last week there followed correspondence between the Chairman of the Council, Lord Tenby, and the Lord Chancellor.

It often happens that when a person applies to a local planning authority for planning permission, third parties, that is neighbours or local residents, feel concern about the outcome of that development should it be granted. If the application is granted they feel that the value of their property will perhaps fall and naturally they are anxious to have their views taken into account by the inspector holding the inquiry. In most cases any representations they may wish to make will be put by the planning authority which is the other party to the appeal, but this is not always the case because such a third party may have a particular interest he wants to be considered. Conversely, third parties often appear in support of planning permission.

I use the expression "third party", which has been used already by the hon. Member for Derby, North, advisedly because it is most important that it should be made perfectly clear that as a matter of law the neighbouring landowner is not a party to an appeal. This was shown very clearly in the chalkpit case where, as hon. Members will recollect, Major Buxton and other neighbouring landowners thought the land would be damaged if the applicants were allowed to work the chalk pit.

When the Minister allowed the appeal against the refusal, Major Buxton and other landowners applied to the High Court for an order to quash the Minister's decision—the hon. Member referred to that case—but the judge who heard the application, Mr. Justice Salmon, made clear in his judgment what was the position in law under the Act. It was that before the town and country planning legislation any landowner was free to develop his land as he liked within the common law. No adjoining landowner had any enforceable right except under common law against nuisance and trespass.

The town and country planning legislation created a restriction of development for the benefit of the public at large and imposed no new rights on any individual members of the public whether they lived close to or far from the area of the proposed development. The local planning authority was established as a guardian of the public right, and there was a right of appeal only if the local planning authority refused permission to the applicant to develop the land.

In practice, these third parties have an opportunity of putting their views at the inquiry and do put their views to the inspector at the inquiry; they are allowed by the inspector to appear. Their position is fully reserved in Rule 5 (2) of the planning rules. Furthermore, under Rule 4 (9) third parties are entitled to inspect and to take copies of the planning authority's documents and statement. Under Rule 8 they can give evidence and cross-examine witnesses at the inspector's discretion. The provision has been deliberately left wide, with the words "party interested", so that the inspector's discretion is in no way curbed and so that in the exercise of his discretion he can permit these persons to appear and to make their case and to cross-examine. Persons often take these steps to ensure that their views are before the inspector.

Hon. Members will appreciate that it is very important at this stage that the widest representation should be made, so that the Minister ultimately receives the most extensive information about the proposed development. But these are not "persons aggrieved" in the words of Mr. Justice Salmon in the chalkpit case. They may play a part in making representations but they are not parties to the appeal. Accordingly, the only major respect in which third parties do not have the benefit of those who are full parties to the proceedings is in the procedure to be followed after the inquiry.

I said earlier that there is one respect in which the Government have not felt able to go as far as the Council on Tribunals suggested. In its Report the Council recognised the legal position of third parties as I have explained it and accepted that it was not right to press for the rights for third parties to be inserted in the Rules, but the Council recommended that an assurance should be given in Parliament that third parties would, in practice, be given the benefit of the rules as if they had, in fact, been given legal rights by the Rules.

It would not be right in the Rules themselves to put third panties in the same position as parties to the appeal, and the Council on Tribunals accepted that this would not be possible. The reason why it cannot be done is founded in the reasons given by Mr. Justice Salmon, in his judgment. He pointed out that the legislation with which we are concerned here, the parent Act, conferred no right on the third parties, and he said that he had to have regard to the general scheme of the legislation. That being so, it is not possible to endeavour to confer rights on third parties, as it were, by the back door, as has been suggested. If the Rules before the House were to confer legal rights on third parties, such as the right to appear before the inquiry and the right to ask for the reopening of the inquiry in certain circumstances, there is no doubt that such Rules would purport to extend the Town and Country Planning Act beyond what the court had held to be its proper scope.

Some hon. Members may think that legislation should be extended so as to confer new rights on individuals. Whether it should or should not, surely it would be wrong to seek to alter the law in this way by new Rules of Procedure, and if such a wide change had to be made, it should be made deliberately by Parliament.

The Council on Tribunals suggested— and this suggestion has been pursued to a certain extent this evening—that third parties should be put in the same position as the parties to the appeal, subject only to the fact that they should not have the legal right in the recourse to the courts. The Council suggested in consequence that the Government should give the assurance of which I have spoken that third parties would be given the same opportunities as the actual parties to an appeal under the planning Rules to make further representations or to ask for the re-opening of the inquiry.

I cannot give any assurance to that effect, because there are serious practical objections. The Government do not consider 'that any great practical advantage would follow from the adoption of such a procedure. It would cause quite unacceptable delays, of which some of my hon Friends have already spoken. It would cause unacceptable delay in the reaching of decisions on appeals. The House has heard how often complaints are made about the time taken to deal with appeals. If everyone heard at an enquiry were to be given the opportunity of asking for the inquiry to be reopened where the Rules provide for the parties to make such a request, the delay would be increased.

The Council sought to avoid this difficulty by limiting this recommendation to those who … by reason of loss of amenity or depreciation of the value of their property or on other similar grounds may fairly be regarded, in the ordinary use of language, as affected by the proposals in question. That limitation and that test would impose the invidious and almost impossible task on my right hon. Friend the Minister of Housing and Local Government of deciding whether a particular objector was covered by these words. It is a duty which he ought not to be asked to undertake.

I suggest that, in practice, the third party who has a real interest—this is the person to whom I think the hon. Member for Derby, North referred—is unlikely to be prejudicially affected. In the nature of things his interest—not always, but usually—must be or usually can be identified with the interest of one or other of the parties to the appeal. If his interest is substantial, presumably that party would welcome his assistance and he is likely to receive, albeit indirectly, the same information from the Minister as the parties themselves. However, I accept that his interest would not always be completely identified with those of one of the parties to the appeal.

There is also this to be considered. If the inquiry is reopened, if the Minister has come to certain conclusions which require him to reopen it, the third party may be heard at the discretion of the person holding the inquiry.

Mr. MacDermot

Do I understand from what the hon. and learned Gentleman is saying that, if one of the parties specified in Rule 10—that is, the appellant, the planning authority or a Section 37 party—asks within 21 days for the reopening of the inquiry, it follows automatically that the inquiry will be reopened? Has the Minister any discretion to refuse the request, or must he reopen the inquiry? I can see that, if he must reopen the inquiry, the Solicitor-General's argument is stronger.

The Solicitor-General

If because of what happens after the inquiry the Minister has to ask the parties if they wish the inquiry to be reopened and one of them wants it reopened, the inquiry must be reopened. That would mean that the third party could be heard again at the reopened inquiry. If, on the other hand, the parties are content that the Minister should act as he proposes, it cannot be right that any other person should have the opportunity of intervening, since this would mean that a person with no legal right would be put in a position of trying to induce the Minister either to grant planning permission to a developer who was content by that time with his application having been refused or to refuse planning permission to a developer whose application was in the event not opposed by the planning authority.

The position of third parties as such is clearly covered by the Rules and the powers of the person holding the inquiry are such that third parties can give their evidence and make their representations but, not being parties aggrieved, they are not in the same position as parties who are aggrieved. It is for those practical reasons that it would not be right to give the suggested assurance.

These Rules—which, I repeat, will serve as a model, if they are accepted by the House—have been entirely accepted on the recommendation of the Council on Tribunals which, as my hon. Friend the Member for the Isle of Thanet said, had its birth, or conception, from that important body, the Franks Committee. They were debated in another place on 23rd July. I hope that I have covered the main points that appeared to need answer and explanation. This is, as hon. Members have recognised, an important matter and one that needs ever-close study and scrutiny, and I have thought it right to deal with the questions at, I hope, not too great length.

Mr. Buck

Before my hon. and learned Friend sits down, can he give me an assurance that he and the Parliamentary Secretary will consider carefully whether these Rules should not prescribe parish councils as parties to be given notice in accordance with Rule 4 (4)? If he will say that he and my hon. Friend will consider that most carefully, I shall be greatly obliged.

The Solicitor-General

I understand that neither district councils nor parish councils are included, but I certainly assure my hon. Friend that the position as put by him will be most carefully studied.

11.27 p.m.

Mr. James MacColl (Widnes)

I hope that the Solicitor-General will allow me to say how much we have appreciated his helping us tonight on what I believe to be the first occasion in his new office, and how much we have benefited from his clear and helpful explanation of this rather difficult subject. It is "kid's stuff" compared with general grant, but still, to the uninitiated, it is fairly complicated. We ourselves had been minded to pray against these Rules but, in charity, decided to wait until the Solicitor-General and the Parliamentary Secretary had been rather longer in office before we did so. The hon. Member for the Isle of Thanet (Mr. Rees-Davies) decided to put down this Prayer, and it has certainly been very useful and valuable to have this discussion.

My first point is that the proceedings we are discussing are quasi-judicial but not judicial, and it is rather important to distinguish that this is essentially a matter of policy, and not merely a matter of fighting a legal action. It means that having carried out as far as possible the job of giving everybody a chance to say something and ascertaining the facts, it is not only the Minister's right but his duty to carry out the policy of which he thinks Parliament approves, and make his decision as a policy decision.

In that context, I am not sure that I agree with my hon. Friend the Member for Derby, North (Mr. MacDermot), although most of us were greatly helped by his very lucid survey of the Rules and I would not attempt to compete with him in his detailed analysis. He raised the question of the inspector's duty to stop examination of Ministry witnesses on matters of policy. He thought that that might lead to restriction. I think that the Rule is fairly clear, that the restriction is on criticising policy, and that elucidation of the policy is not excluded.

That distinction is one of which we know in Select Committees, where we very often have to examine witnesses from Ministries on what is policy while not in any way pillorying or criticising civil servants for policy which is not their responsibility but that of the political head concerned. After all, these inquiries are meant to ascertain the facts and are not designed to be a debating chamber. This House exists to argue about policy—

It being half-past Eleven o'clock, Mr. SPEAKER put the Question, pursuant to Standing Order No. 95A (Statutory Instruments, &c. {Procedure)).

Question negatived.