HC Deb 25 October 1982 vol 29 cc854-64

12.9 am

The Under-Secretary of State for Northern Ireland (Mr. David Mitchell)

I beg to move, That the draft Planning (Amendment) (Northern Ireland) Order 1982, which was laid before this House on 7th July, be approved. The basic principles of planning law in Northern Ireland are the same as those for the rest of the United Kingdom. The main difference is in its application. In Great Britain, primary responsibility rests with the local authorities, whereas in Northern Ireland that responsibility is vested in the Department of the Environment for Northern Ireland. The Government believe that it is right to have that broad equivalence so that developers throughout the United Kingdom are not faced with significantly different sets of rules.

The draft order is designed to maintain those principles while allowing for adaptations and modifications that are necessary to reflect the circumstances and administrative arrangements in Northern Ireland. Some of the changes in the draft order are necessary to apply to Northern Ireland some of the provisions of the Local Government, Planning and Land Act 1980 and the Local Government and Planning (Amendment) Act 1981. Others are designed to provide more effective enforcement in Northern Ireland.

The main theme of the order is the enforcement of planning control and the improvement of enforcement procedures. The key problem is that, under existing Northern Ireland law, there were opportunities to delay the enforcement process through what has become known as the "dual appeal" system. The order provides for a single appeal system. At present, an enforcement notice can be suspended on two fronts in Northern Ireland, by the expedient of submitting a planning application as well as by appealing to the magistrates' court. The enforcement notice will not become effective until after the hearing of, first, the planning application, secondly, any subsequent appeal to the Planning Appeals Commission, and, thirdly, the court hearing. Those three stages of delay cause the present unsatisfactory position.

Articles 8 and 10 of the draft order provide for the transfer of responsibility for dealing with appeals against enforcement notices and listed building enforcement notices from the magistrates' courts to the Planning Appeals Commission. The commission is the independent body charged with determining appeals against planning decisions of the Department of the Environment for Northern Ireland.

The existing dual appeals system enables a developer to pursue unauthorised development for a considerable time. I know that several hon. Members have been worried about that. It may cause problems about time limits set for the initiation of prosecutions. There has also been confusion about the separate appellate bodies. In Great Britain there is now a single appeal in enforcement cases to the Secretary of State. We cannot do that in Northern Ireland, because the Department of the Environment is the planning authority and the Minister would be judge and jury in his own decisions. Under the new procedures in the draft order, appeals against enforcement notices will lie to the Planning Appeals Commission. The appeal will also be deemed to be a planning application for the unauthorised development. It means that the facts of the case and the planning merits can be considered simultaneously by one body. The submission of a planning application will no longer stay the coming into effect of the enforcement notice.

At the same time as reducing the delay, the order provides for the introduction of greater flexibility into the enforcement system. Under article 7, an enforcement notice may include requirements for the alteration of unauthorised development to make it acceptable in planning terms. The present arrangements allow the Department only to require the restoration of the land to its state before the commencement of unauthorised development.

Article 11 gives the Department new powers to enforce conditions for the replacement of trees subject to a tree preservation order that have been felled by agreement and where in the past we could not insist on replanting.

Several important provisions relate to listed buildings. Article 4 provides some protection to developers who receive planning permission for development that involves the alteration, extension or demolition of a building by enabling a developer to seek a certificate from the Department stating that the building will not be listed for five years. Until now, a developer with such permission could find himself in difficulties if a building that he planned to develop was listed later but before he had begun work.

Article 5 provided that listed building consent may be sought after development has been carried out. This provision is already available to other types of development. It is only reasonable, if a person has carried out works to a listed building without consent, and those works are acceptable, to give a consent after the event. If the works are not acceptable, appropriate enforcement action would be taken.

Article 6 introduces time limits on the operation of listed building consents in the same way as time limits are imposed on planning permissions. It also introduces a new consideration whereby the Department is able to take into account not only the listed building itself but also its setting.

Hon. Members will wish to know that articles 12 to 19 of the draft order deal with a number of miscellaneous planning matters. Article 12 deals with a technical point about purchase notices.

Article 13 makes the changes necessary to charge planning fees for enforcement appeals made to the Planning Appeals Commission as if they were deemed applications, otherwise, hon. Members will realise, a new loophole would be opened up with people seeking to carry out development not paying planning fees and not being caught when the enforcement notice was served on them. They will be caught within the catchment of article 13.

Article 14 requires that a condition of planning consent that a building should be demolished must be registered on the Statutory Charges Register so any prospective purchaser will be on notice that there is a requirement that it can be demolished.

Article 15 enables the Department to take out a summons within three years of the commission of certain enforcement offences instead of six months at present. It can happen in an enforcement case that attempts to reach a compromise become protracted and the six-months time limit expires. This extension allows more flexibility when that happens.

Article 18 will close a loophole to prevent planning compensation from being claimed twice in respect of a second refusal for a similar development.

Finally, article 3 extends the right of appeal of an individual against certain planning decisions. It is not uncommon for a planning permission to include a condition to the effect that a particular element in the development is subject to further agreement with the Department. Up to now there has been no right of appeal against such a condition and article 3 now gives such a right.

The draft order, hon. Members will realise, has taken some time to appear, but it was thought necessary to ensure that any amending legislation for Northern Ireland should take full account of changes to legislation in Great Britain.

The provision of the draft order will be invaluable to the Department of the Environment in enforcing planning controls and will help developers by clarifying their responsibilities.

12.17 am
Mr. J. D. Concannon (Mansfield)

I shall not keep the House long at this late hour. I thank the Minister for going through the order The consultation process has been thorough and I have received no objections. All the groups in Northern Ireland with an interest in the order have let me know that they welcome it.

With those few remarks, wish the order godspeed.

12.18 am
Mr. J. Enoch Powell (Down, South)

It was certain understatement on the part of the Minister when he said that the order had taken some time to appear. Its gestation, if we trace it far enough back, has been a long one, and the compliments arid thanks that I shall eventually direct to the hon. Member for Basingstoke (Mr. Mitchell) will need to be shared by a former hon. Member for Birmingham, Northfield Mr. R. Carter—as well as by the hon. Member for Beckenham (Sir P. Goodhart).

Although there a T a few provisions in the order that are not concerned directly or indirectly with enforcement, substantially this is an order to improve the efficiency of planning enforcement in Northern Ireland. For anyone coming to Northern Ireland from Great Britain, the extent to which planning control appeared to be evaded came as a shock. A good deal of suspicion of contumacy, not to say collusion, entered into the minds of some of us who have surveyed this scene over past years.

All the reasons for that difference, apparent or real, in the efficiency of enforcement between Northern Ireland and the rest of the United Kingdom will, I believe, be removed by the order, which is very much welcomed. Indeed, it would have been welcomed had it been produced earlier. In all circumstances, it is very undesirable that there should be a public impression that it is possible for certain individuals or possibly for people generally to get away with a breach of planning control simply by going ahead with development and hoping for the best or in more flagrant cases openly defying planning controls and hoping that enforcement procedures will not be taken.

It weakens respect for law in general. It weakens respect for planning law in particular. It is especially undesirable in Northern Ireland where every breach or apparent breach of the law is given by members of the public a certain interpretation. One is liable to hear it said, "He got away with it because he is of this religious persuasion. Of course, he would not have got away with it if he had been of another religious persuasion". I doubt if that has often, if ever, been the case. It is, however, that kind of suspicion that fastens and feeds upon weakness in enforcement procedures. I am glad that this will be removed—I hope that it will be removed—by the legislation.

The investigation of this whole problem has not been brief. It turned out, upon examination, that there were no fewer than three causes to which the weakness of planning control had been attributable. The first, with which the Minister dealt, was the distinction between the ultimate arbiter on planning decisions and the ultimate arbiter on enforcement. The ultimate arbiter on planning decisions is the Planning Appeals Commission in Northern Ireland and the ultimate arbiter on enforcement the magistrates' court.

It would not be quite accurate to say that a would-be breaker of planning control could play one off against the other. But the alternatives that were open to a would-be developer in contravention or contempt of planning control did make it possible for grave delays to supervene which, in some cases, finally prevented breaches of planning ever being dealt with. I wince at certain points in my constituency when I pass the site of events of the type that I have modestly indicated.

The second reason why planning control has been defective is that the magistrates' court which was the arbiter of enforcement appeals was also the court that dealt with prosecutions for failure to comply with an enforcement order. Under the general rules applying in those courts, it could only deal with cases that were brought within six months of the last date for compliance specified in the enforcement order. Those who were wise of this business were fertile of means for playing out the six months' time. This prevented the enforcement order, even if made, actually being put into effect. I might perhaps pause at this stage to rub in the point that, if the public see that an order is made but not enforced, the public will come to the wrong conclusion. It is true that they will come to the right conclusion, namely, that there is something amiss, but they are liable to think that the enforcement order was not put into effect due to some favouritism or other consideration. What was amiss was the powers open to the magistrates' court to deal with prosecutions following failure to comply with enforcement orders.

The third reason for the weakness of planning control was the limitation of the power of enforcement to reversing the breach which had occurred. There are instances where to insist upon a total 100 per cent. reversal of breach of planning control or planning consent is manifestly not only onerous to the offender but also unreasonable in itself, and the very fact that the Department knew that it could not make a modified enforcement order and that it could not oblige the contravenor of planning to put right in a different way what he had done wrong, by reinstating in an acceptable but not a 100 per cent. fashion, must have been a deterrent to engaging in enforcement action.

In fact, there were so many difficulties in the way of enforcement that one tended to send up a cheer when eventually one got the Department, in the most flagrant breaches of planning control, to agree that there should be an enforcement order. One hopes that that dispensation is at an end.

The three causes which I have outlined are remedied by the order. The first—having different courts of appeal on planning and enforcement—is removed by combining both functions in the planning commission. As the Minister said, if we enjoyed the blessings of democratic local government in Northern Ireland it would be possible for him, as Minister, to be, as he would be correspondingly in Great Britain, the arbiter on planning and on enforcement, but clearly, since he is the planning authority of first instance, he cannot be the judge of appeal on second instance. Therefore, it was inevitable and right to give to the planning commission the duty of dealing with enforcement cases in a planning context. I think that we have gained something on the side there, because the effect is that the appeals procedure will no longer, as it did in the magistrates' court, lead to a simple "Yes" or "No" from the court; it can lead to a genuine planning decision taken in the light of planning circumstances.

The second remedy which has been applied is to extend the six months period in the magistrates' court to three years. I only hope that the three years will be enough. It is beyond question that six months for this purpose was absurdly short, but some experiences which one has had lead one to wonder whether it is beyond human ingenuity to find excuses or devices which can be played out for a period as long as three years. I would have been happier if it had been possible to take it to an even longer period than three years, but at any rate three years will give us far more protection than we enjoy at the moment. Indeed, it will create the possibility of effective prosecution, which at the moment hardly exists.

The third obstacle is removed by the provision of flexibility in planning control and enforcement, so that the planning authority will no longer be deterred from proceeding with enforcement by the evident unreasonableness of the only requirements that it can attempt to impose.

There is genuine ground for rejoicing over the order. It will inaugurate a period in which gradually people in Northern Ireland will accustom themselves to the position that once planning control has been applied or a planning decision has been taken that decision will sooner or later, but no doubt, be applied.

I hope, too, that the order will result in a greater respect for planning law and control and consequently in less development taking place on spec without planning permission having been applied for. It is not in itself an offence to develop without planning permission; it is only a risk. But the order inevitably makes the risk much higher. It will therefore, greatly reduce the number of cases in which, without breaking the law, developers have gone ahead, pretty secure in some cases, in the judgment that in the event of planning control going against them they would in some way get away with it.

Those of us who believe that planning control has much to contribute positively to development in Northern Ireland welcome the order and congratulate the present Minister—the last of a series who have had their hands to this plough—on having been the Minister eventually to bring it to fruition and get it on to the Northern Ireland statute book.

12.31 pm
Mr. William Ross (Londonderry)

Like my right hon. Friend the Member for Down, South (Mr. Powell) I welcome the order in general, but I have a number of questions for the Minister. The more one looks at the order, the more one becomes anxious about certain of its implications. A number of planning and development matters are not yet fully satisfactory, not least the old chestnut of the problem of development land that becomes landlocked. I have discussed the problem in my constituency with the Minister.

In article 3 a new right of appeal is created where the Department refuses consent, agreement or approval. As the Department of the Environment is in charge of planning, the planning officials should know when permission will be refused by Departments with responsibility for roads, water or sewerage, and act accordingly. One is left with the suspicion that the left hand does not know what the right is doing at the Department of the Environment. Can the Minister assure us that the planning authority takes account of all the possibilities when a planning application comes forward?

The Minister seemed to say that article 4 would help those who wished to develop property, especially where a listed building might have to be demolished or altered. I wonder whether it is designed to help the developer. Is it not rather designed to help planners and those who might have an interest in the conservation of buildings that have acquired a special interest?

It is clear from experience that when buildings of a particular type are plentiful, one such building's historical or architectural interest is not so great. However, if many such buildings are demolished, the remaining ones become much more valuable.

In those circumstances, it would appear that the developer is merely drawing the attention of planners and those who are interested in such buildings to the fact that he owns such a structure. In that sense, he may be harming himself. If the planning authorities did not know about that building, it could disappear and it would not be missed. I wonder, therefore, whether the order will be as helpful to the developer as the Minister seemed to think.

When an owner of a building, usually an old one, considers knocking it down, he needs clearer guidelines than those that are supplied at present. How is the ordinary individual to know whether he owns an example of architecture that is scarce in Northern Ireland and should be preserved? When will there be a comprehensive survey, when will it be completed and when will owners be informed that their buildings are of interest to the community in general?

Mr. J. Enoch Powell

It is not a full answer, but the work of the Ulster Architectural Heritage Society has gone a considerable way towards answering my hon. Friend's question. It has produced for various parts of the Province admirable lists of buildings which are of historical interest, irrespective of whether they might eventually be listed. This must be of help to owners who are in the position that my hon. Friend the Member for Londonderry mentions.

Mr. Ross

I assure my right hon. Friend that I am aware of that survey, but how far has it got, and are all the owners of such buildings informed that the buildings are of interest to the general public?

The useful explanatory document says that article 6 provides that there must be a contract for redevelopment before a building can be demolished. Whenever a contract or an application for demolition is being considered, everything, including the siting of the building, is taken into account. I should like the implications of that for the developer to be spelt out.

Does it mean that if the developer is demolishing a building in a terrace of the kind that we have in some parts of Londonderry, he must create a building with a similar facade to that in existence to preserve the whole, or does it mean something else? If such re-creation involves greatly increased costs to the developer, will he receive any assistance or will he have to pay the full cost up to the standard that can be demanded by the order?

Article 7 deals with the enforcement of planning controls. Every Northern Ireland Member has come across many examples of planning law being flouted. My right hon. Friend the Member for Down, South mentioned a number of examples in his constituency and I believe that there are many more in my own constituency that have not yet come to light, 1 all the rumours that I hear are true.

I am extremely worried about the enormous amount of unauthorised development that has taken place throughout Northern Ireland. I wonder whether article 7 will really redress the balance and lead to the enforcement of the law or whether it will simply provide a loophole for the lawbreakers, who have got away with constructing all kinds of buildings over the years. Is this a way out of the responsibilities that planners bear to the whole community, or is it a serious attempt to make some sense of the miserable episode in planning law through which we have lived and which the order seeks to correct?

I understand that law-breaking has been taking place at least since 1974 and that most of the problems have arisen since then. I hope :hat a serious effort will be made to enforce the law and to minimise the worst effects of the law breaking that has taken place over the years.

Article 9 enables the Department to require remedial works to be done to listed buildings, but refers to the. impracticability of complete restoration where a building has been demolished or altered without consent. Who is to judge what is impracticable? Will the matter go to a tribunal of some kind, or will the Minister make the decision? Who is to judge the practicability or impracticability of complete restoration of a building that has been demolished or altered out of all recognition? People need to know how the legislation will apply in practice before they will be satisfied that it will really achieve what we are told that it seeks to do.

Article 11 provides for the replacement of trees that are the subject of tree preservation orders. There are many ways of getting rid of a tree. One does not actually have to cut it down. It cart be killed by many of the numerous chemicals on the market so that it becomes a danger and has to be chopped down. It can simply be barked all the way round and it will quickly die. In any of those circumstances, the order makes provision for the replacement of the tree by replanting. A tree does not grow to its full size overnight, however. It takes a very long time.

Have the Minister and his Department given full thought to what they are taking on in this article? If a person is told to replant a tree, he will naturally replant a small tree, which will take many years to grow into something that is recognisable as a tree in any true sense. What are the Department's powers for the protection of the tree while it is growing? How will its survival be ensured? If we cannot do that, the article is nonsense.

Anyone who wishes to avoid having a tree growing in front of his house can do so. I should like to know how the Department intends to enforce the provision and to ensure that in 50 years time there will be a tree growing where the old one was cut down last week. It is an impossible task and it is glossed over in the order.

Article 13 deals with planning fees, which are increased annually. Many people in Northern Ireland, especially councillors, would like an explanation of the thinking behind the level of fees. Are they intended to cover the full cost of processing planning applications? If they are meant to cover part of the cost, what proportion is covered? How is the level of fees arrived at? I understand that the level is increased in line with inflation, but what was the original thinking behind the fee levels? Should the money raised be regarded as taxation for a specific purpose? I oppose that, because the principle has never worked. I hope that the Minister will tell us by now much it is intended fees should be increased and what the money is used for.

Article 14 deals with the demolition or cessation of use as a dwelling of a house on land on which the building of a replacement house has been authorised. Is it intended to stop the practice of worn-out dwellings that are supposed to be replaced by new houses being improved and still used as dwellings?

Has the Minister any figures on how often planning permission has been given for a new dwelling on condition that the existing dwelling on or near the site would be demolished? On how many occasions when the old house was not demolished was the owner able to get a grant from the Northern Ireland Housing Executive to improve that property, so that he ended up with two virtually new houses where only one existed before? I believe that that has happened far more often than the Department may realise.

Article 18 appears to be tied to article 14, but with a small addition in subsection (3A), which states that compensation for the refusal of planning permission shall not be payable under this section on more than one occasion in relation to any estate in land. Has compensation been paid on more than one occasion in respect of the same land? If so, has that compensation been paid to the same owner, or to a different one? I should have thought that if planning permission were refused, especially on a green field site, the land would remain or revert to agriculture only.

That is all very well so long as the planners' view of that portion of land remains the same as when the compensation was paid. However, what will the position be if in 5, 10, 15 or 20 years the planning authorities decide that such land can be developed? Compensation may have been paid on the basis that the land would not be developed, and all at once the planners change their minds. That could lead to great personal loss to the former owners of such property if it were sold on the basis that it could not and would not be developed.

As the Minister is well aware, the Prehen golf course in Londonderry is an outstanding example of that. A constituent of mine tried for many years to get planning permission for houses there and, because he was unable to get it, sold the land to the golf course, which eventually received planning permission for the construction of a considerable number of houses there. That is a case that has caused much disquiet in my constituency. I wonder how such a case can be avoided in future, because it does no good to the Northern Ireland Office or to the Minister.

There are still considerable gaps in planning law. I welcome the order, because it will close some of the loopholes. Above all, it will close that loophole, which has been dealt with at some length, where enforcement is delayed for six months and the person breaking the law has appeared to get away with it with impunity.

12.52 am
Mr. David Mitchell

Several important points have been raised. At the start, the order was welcomed by the right hon. Member for Mansfield (Mr. Concannon) speaking from the Opposition Front Bench. He wished it godspeed, and I am grateful to him for that. I have come today from visiting Enniskillen and after seeing the sheer beauty of the countryside in Fermanagh and over the weekend walking part of the Ulster Way through the Mourne mountains I can say that it is not in the least a matter of surprise that Ulster Members should be speaking in the House today in an anxiety to ensure that there is adequate protection for the Province's beauty and to ensure that, when necessary, enforcement proceedings are carried through effectively.

The right hon. Member for Down, South (Mr. Powell) spoke of the suspicions that can so easily run like fire through Northern Ireland society if there appears to be any disparity between the treatment meted out to one applicant as compared with another. I wholly agree that that underlines the need to ensure absolute fairness in the application of the planning system.

The right hon. Gentleman referred to the scope for delay and mentioned some cases in his constituency where he felt concern every time he saw some buildings. One case that I came across recently involved the erection of a non-agricultural building in an agricultural area. That was spun out for four years by the use of the procedures under the dual appeal system. In another case, the erection of a repair depot for lorries in a residential area was spun out for four years. In both cases there were significant objections from the neighbours about what was being done. Therefore, the right hon. Gentleman is right to draw attention to the opportunity that existed in the previous legislation to delay the application of an enforcement case. However, he should not assume that the existing law has no teeth. Hon. Members may have given the impression that the existing enforcement arrangements have no bite.

Since 1 January 1980, 148 enforcement notices were served. Of those, 23 resulted in prosecutions. In addition, in the past month two people have been fined £500 each and another person has been fined £1,200. Therefore, there are some teeth in the existing operation, but, because of unduly long delays, we have introduced this order. Some hon. Members may have noticed that there has been some administrative speeding up. Previously, legal proceedings were dealt with through the Director of Public Prosecutions. However, he has other matters on his hands and other priorities and as a result, this subject has not perhaps been given top priority.

In February this year I had the legal proceedings transferred to the legal department of the Department of the Environment. As a result, there has been some speeding up. That, together with the changes introduced by the order, will give our provisions effective teeth. The hon. Member for Londonderry (Mr. Ross) raised several technical points, which I shall deal with as expeditiously as possible. He asked, in particular, about article 3, which provides a new right of appeal. Where the Department has refused any consent, agreement or approval required by a condition imposed on a planning permission, the applicant will be able to appeal to the Planning Appeals Commission, the independent authority with responsibility for deciding appeals against the Department's decision. At present, there is no appeal against a refusal on a consent required by a planning condition. Such consents normally relate to matters such as the layout of a housing development, the use of premises at unsocial hours and so on.

I have also been asked about article 4. Paragraph (1) of article 31A helps the developer by enabling him to get a certificate that it is not intended to list a building for five years. Therefore, I can give the assurance that is being sought. The provision has been designed to help the developer to know exactly where he stands. I shall write to the hon. Member for Londonderry about the programme for listing historic buildings. However, I have been asked for some statistics that I do not happen to have to hand.

I have also been asked about article 6 and the reconstruction of listed buildings. Each proposal must be considered on its architectural merits. The Department will seek the best advice available. Grants are, of course, available for the repair and maintenance of listed buildings. A point was raised about repeated refusals and subsequent consent being given. Examples in Londonderry were cited. We are all aware of such things in our constituencies.

Two factors are involved. First, as a town's natural growth occurs, land which was not right for development becomes the next appropriate place for development. In 10 or 15 years, population changes take place along with changes in pressure and demand. Our planning system should not be so inflexible that it cannot take account of human needs. If it were so inflexible we should be the servants of planning rather than it being the servant of the community.

Secondly, changes in policy occur. I announced a change of policy 15 months ago. It changed policy in relation to small businesses and isolated developments in rural areas. I am anxious to encourage the maintenance of life in small villages and hamlets. If one or two extra houses are not built, the community will die and serve no purpose. Many villages were created because people worked on the land and blacksmiths and associated trades were established. Today, unless small business opportunities are created and a few additional houses are built small communities will decay.

Policy must be changed from time to time. The changes that I introduced were welcomed, but a necessary concomitant of the changes is that decisions taken against the previous criteria will be changed because of the new criteria. I accept the anxiety, but in some circumstances that is right.

I shall reply in writing about the technicalities. I commend the order to the House.

Question put and agreed to.


That the draft Planning (Amendment) (Northern Ireland) Order 1982, which was laid before this House on 7th July, be approved.



That the Standing Order of 22nd January relating to the nomination of the Select Committee on Procedure (Finance) be amended by leaving out Mr. W. W. Hamilton.—[Mr. Lang.]