Clause 14. (Hansard, 22 May 1968)

§ Mr. MacDermot
I beg to move Amendment No. 24, in page 12, line 25, 678 to leave out from beginning to ' occurred ' and to insert: (c) in the case of a notice alleging a breach of planning control which, by virtue of section 13(3) above, may be served only within the period of four years from the date of the breach, that that period had elapsed at the date of service; 679 (cc) in the case of a notice not falling within paragraph (c) above, that the breach of planning control alleged by the notice.

§ Mr. Deputy Speaker (Mr. Sydney Irving)
With this Amendment, we can discuss the Amendment to it standing in the name of the right hon. and learned Member for Hexham (Mr. Rippon), to leave out 'the period of four years' and insert 'a specific period'.

§ Mr. MacDermot
I suggest that we also discuss Amendment No. 31, in page 15, line 21, after '(c)', insert '(cc)', which is consequential.

§ Mr. Deputy Speaker
If that is convenient.

§ Mr. MacDermot
Amendment No. 24 is consequential on Amendment No. 23. It makes the necessary change in Clause 14(1) by adding as an additional ground of appeal that a breach of planning control, to which the four-year rule still applies, took place more than four years before the enforcement notice was served.

§ Mr. Graham Page
We do not wish to move our Amendment to the Amendment, nor to comment. We accept the Government Amendment.

§ Mr. Graham Page
I beg to move Amendment No. 25, in page 12, line 36, to leave out 'state the' and to insert 'some'.
Clause 14 deals with the procedure of appeals against enforcement notices. Subsection (2), in particular, deals with the form in which an appeal against an enforcement notice is brought before the Minister. It replaces the existing law, contained in Section 46(2) of the 1962 Act. However, it does not reproduce that provision exactly, but adds a little to it. It is the addition to which we object. Section 46(2) of the Act says: Any appeal under this section shall be made by notice in writing to the Minister, which shall indicate the grounds of the appeal; The provision in the Bill is as follows: An appeal under this section shall be made by notice in writing to the Minister which shall indicate the grounds of the appeal and state the facts on which it is based; It is this last phrase which is the addition. We fear that if facts have to be stated in the notice of appeal to the Minister, the appellant will be precluded from producing further facts at the hearing.
680 At present, it is accepted law that one needs to indicate only a ground of appeal and not necessarily indicate all the grounds of appeal. The Bill says that the appellant "shall … state the facts". The ordinary interpretation must surely be that, in his notice, he must state the facts, and not just some of them, on which he bases his appeal and that, if he does not state them, he will not be at liberty to bring them forward at the hearing.
The hon. and learned Gentleman will know the case Chelmsford R.D.C. v. Powell. The basis of the decision was that an appellant, having indicated a ground of appeal, could bring forward further grounds later at the hearing before the Minister. But the whole of that decision, I believe, was based on the word "indicate". In the Bill it says that the appellant must state the facts, and state the facts he must if it becomes law in this form.
If he does not state the full facts he will not have an opportunity of bringing more facts forward at the hearing. If this additional burden on the appellant means anything at all, it is restrictive on his rights of appeal. It is unfair that the appellant is called upon to state the facts at that early stage, whereas the local planning authority does not have to state the facts on which it alleges that there has been a breach of planning law. The appellant is put at a disadvantage. He is not told the facts on which the local planning authority alleges that he has broken the planning law, but within 28 days of being served with an enforcement notice, he has to collect all the facts in dispute, set them out in a notice to the Minister, and abide by what he sets out in the notice. This is too great a burden on an appellant. If he merely indicates the grounds of appeal, and some facts on which the appeal is based, that should be sufficient. He should be at liberty to bring forward further facts at the hearing.

§ The Joint Parliamentary Secretary to the Ministry of Housing and Local Government (Mr. Arthur Skeffington)
We had a long discussion about this on 14th March in Committee, and I am conscious of the point of the hon. Gentleman, that if all the facts were not indicated in the notice of appeal, then the appellant might be precluded from adducing them at the inquiry. I said that 681 I would look at this point to see whether, without letting in the very mischief we want to prevent—which is that all those going to the inquiry, the local authority or anyone else, could turn up without knowing what are the basic facts upon which the appellant is basing his case— something could be done.
On reflection I cannot think that it is right that everyone should be left in the dark without having this basic indication of the nature of the grounds of appeal. I said that I would consider whether, without readmitting the mischief we wanted to avoid, we could put in statutory form something which would meet the hon. Gentleman's point. We have spent a good deal of time with the draftsmen and others, but we are afraid that it is not possible to draft something which would not undo what is the major purpose of the new subsection.
I can assure the hon. Gentleman, since the decision of Chelmsford R.D.C. v. Powell, when it was held that the Minister could consider other grounds, legal advice is that he certainly could do so. I have indicated that all that is required under this subsection is that the basic facts, not the means by which the appellant hopes to prove the facts, need be given. This could be considered by the Minister. It has been held that the Minister could consider additional facts when he comes into the picture. I go a little further and tell the hon. Gentleman that within the regulations which will have to be made, we shall indicate this point, that the main theme of the basic facts must be given. We will go further, so that the appellant will know that they are the requirements.

§ Sir John Foster (Northwich)
Will the Minister meet the point that the other side, the local authority, is not bound to disclose the facts, because in the enforcement notice the facts may very well be changed. My hon. Friend made the point that it is unfair on the appellant to have to state all the facts and not the authority.

§ Mr. Skeffington
He would have to state what the broad nature of the appeal was.

§ Mr. Graham Page
I am grateful to the Parliamentary Secretary for what he has said about including this in regulations. I would have liked to have seen 682 it in the Bill. It is far more satisfactory that we should state the point here and now rather than to have to look it up in regulations later. Nevertheless this is a point of wording. I hope it may be looked at in another place. I do not wish to delay the House by dividing it, and I am willing to accept the Parliamentary Secretary's assurances that he will put something very definite in regulations to protect the appellant in the case that he presents. Accordingly, I would ask the leave of the House to withdraw the Amendment.

§ Mr. Graham Page
I beg to move Amendment 26, in page 13, line 9, leave out 'he is satisfied that' and insert 'the appellant or'.
This is an Amendment to Clause 14(4), which is another subsection dealing with the procedure on appeals to the Minister against enforcement notices. This subsection deals with the correction of informalities and the service of enforcement notices. The subsection provides that the Minister may correct any informality, defect or error in the enforcement notice, if he is satisfied that the enforcement, defect or error is not material. It then goes on to give the Minister power to decide whether a person who has not been served with an enforcement notice is or is not prejudiced by the failure to serve him. If the Minister is satisfied that the person is substantially prejudiced by the failure to serve, he can continue with the appeal, and, I suppose, bind that person to the decision he may make on the appeal.
This is surely serious. It is the duty of the local planning authority, if it serves an enforcement notice, to see that it serves it on all the persons concerned and on those who may be affected by a decision on the enforcement notice. One who may be affected by the failure to serve is the appellant himself. If the Minister decided that someone who has not been served with a notice who would normally be served is not prejudiced by the failure to serve him, that may be all right for that person, but the appellant may be prejudiced by that person not being before the Minister on appeal, if, for example, the appellant is a freeholder and his tenant has committed the 683 breach which has given rise to the enforcement notice. The tenant may well not be prejudiced, in fact would be in a privileged position if he is not served with the enforcement notice, but the freeholder would be prejudiced by not having the tenant as a party to the appeal.
The second point arises out of the words "If he is satisfied". This leaves the complete power to the Minister to decide whether a person should have been served or not. This is an immense power to put in the hands of the Minister, of judging a person in his absence. If he, in his wisdom or lack of wisdom, thinks that it does not matter that somebody has not been served with an enforcement notice, neither the appellant, nor that person, nor the courts, can question that. The Minister has merely to say: "I am satisfied that the man has not been substantially prejudiced and I am not going to stop these proceedings merely to go back and serve him".
This is too great a power to put in the hands of a Minister who is himself hearing the appeal. He should see that the notice has been served. It is not for him to have the absolute discretion to say whether or not it should be served. The most important point is that service of the notice is a condition precedent to a decision of the High Court, on a decision of the Minister on appeal. If the Minister has gone wrong on the law on appeal, the appellant will be entitled to go to the High Court to try to get that decision right in law. His right to go to the High Court is given to him under Section 180(1) of the 1962 Act. It is a condition precedent to his appeal to the High Court that he is a person who has been served with an enforcement notice.
Section 180(1) of the 1962 Act provides: Where the Minister gives a decision in proceedings on an appeal under Part IV of this Act against an enforcement notice, the appellant or the local planning authority or any person (other than the appellant) on whom the enforcement notice was served under Part IV of this Act may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Minister to state and sign a case for the opinion of the High Court. It seems that if a man has not been served, he has no right under that section 684 to appeal to the High Court on a point of law. So if the Minister is given the power, under Clause 14(4), to decide in his absolute discretion whether a person ought to have been served, he is deciding whether that person would have a right to appeal to the High Court on a point of law. If I am right in this construction of the law—and it is not an easy matter to interpret, because one is trying to tie up the 1962 Act with the Bill—the Minister is taking power to decide whether a man will have the right to appeal to the High Court against a decision of the Minister on a point of law. This should not remain in the Bill in that form. My Amendment would correct that and would leave it to the courts to decide, if there was any question, whether a person ought to have been served with an enforcement notice.

§ Mr. Skeffington
I am grateful to the hon. Member for Crosby (Mr. Graham Page) for that last point, because it is a new one. We would like to look at it, if the hon. Gentleman will withdraw his Amendment. We must look at it in any event, and we will.
I do not think that the appellant could normally be substantially prejudiced, because, if he is not served, as the Amendment suggests, he would not be an appellant, and presumably none of the other processes could follow. This is what puzzled me about the Amendment, but I can now understand it, because of the additional reasons which the hon. Gentleman introduced at a later stage. The appeal is in the Minister's hands, and if he found that, because of some defect of this character in relation to another party, the appellant was prejudiced, this would be a proper matter which he could and would take into account.
On the first point, there is not much in the hon. Gentleman's fears. On the point about the failure to serve a notice, this would be a good defence in the magistrates' court regarding non-compliance. This only goes back to the fact that he would not have complied with the notice.
In view of the third important point, we would like to look at the matter again.

§ Mr. Graham Page
With respect, I am getting tired of matters being looked at again. This is a vitally important point. It may be that I have only just put the third point across the Floor of the House, but the Amendment is just as important on the first and second points which I raised. Whether the third point needs looking at again is neither here nor there. This was discussed in Committee. It is one of those matters which should not be left. We shall not get another chance in this House to put it right. We should have to rely on somebody else putting it right in another place. Therefore, I must ask my right hon. and hon. Friends to divide on the Amendment.

§ Mr. MacDermot
I am anxious to save time. I am content to accept the Amendment on the clear understanding that, when we have looked at it, if we think some alteration of wording is required, we will introduce the necessary Amendment elsewhere. I do not want it to be taken that we have bound ourselves to accepting that this is the effective way of dealing with it.

§ Mr. Graham Page
I am happy with that if the Minister is willing to accept it on those terms.