HC Deb 12 December 1983 vol 50 cc786-95

`(1) In section 275 of the Town and Country Planning (Scotland) Act 1972, at the end of the definition of "land" the following words shall be inserted:— For the purposes of this Act 'land' also includes Crown land on the foreshore and the seabed which lies within the areas designated under section 1(7) of the Continental Shelf Act 1964 which are adjacent to the coast of Scotland.

(2) For the purposes of this section the Secretary of State for Scotland shall designate the areas of the seabed which shall be brought under the authority of each coastal local planning authority by regulations, a draft of which shall be subject to approval by resolution of both Houses of Parliament: in determining boundaries for the purposes of this subsection the Secretary of State shall have regard to such factors as seem to him to be relevant, but in general he shall extend the boundary on shore of a local authority in a straight line to the point at which it reaches the boundary of the area designated under section 1(7) of the Continental Shelf Act 1964. In the case of an Islands Council he shall establish a median line between its area and that of any neighbouring authority.'.—[Mr. Home Robertson.]

Brought up, and read the First time.

Mr. John Home Robertson (East Lothian)

I beg to move, That the clause be read a Second time.

I confess, Mr. Dean, that it came as a pleasant surprise to me to discover that the clause was in order and had been selected for debate. I am pleased that that is the position. I make no apology for detaining the House at this stage. If the House can rush through legislation to correct one of the anomalies concerning the status of the Crown Estate Commissioners, it will do no harm to consider another absurdity confronting a number of my constituents and others round the coast of Scotland.

The clause is intended to extend planning controls to cover development on the sea bed off the Scottish coast. It makes provision for the definition of boundaries of areas of sea bed which come under the control of each separate planning authority. The House may wonder what the connection is between the Scottish sea bed and the Crown Estate Commissioners. I was surprised to learn that the Crown Estate Commissioners own the whole sea bed, including part of what I had assumed were international waters in the North sea. The point was established by the House of Lords after a case between the Lord Advocate and the Clyde trustees in 1891.

The Crown Estate Act 1961 confirmed that curious state of affairs. The Act conferred wide-ranging powers on the commissioners. Section 1(2) of the Act provides: Subject to the provisions of this Act…the Commissioners shall…have authority to do on behalf of the Crown over or in relation to land or other property, rights or interests forming part of the Crown Estate…all such acts as belong to the Crown's rights of ownership, free from any restraint on alienation imposed on the Crown by section five of the Crown Lands Act, 1902, or by any other enactment (whether general or particular), and to execute and to do in the name of Her Majesty all instruments and things proper for the effective exercise of their powers. That is wide-ranging stuff, but section 1(5) of the Act is so memorable that everyone should hear it. It is an all-purpose let-out. It reads: The validity of transactions entered into by the Commissioners shall not be called in question on any suggestion of their not having acted in accordance with the provisions of this Act regulating the exercise of their powers, or of their having otherwise acted in excess of their authority, nor shall any person dealing with the Commisioners be concerned to inquire as to the extent of their authority or the observance of any restrictions on the exercise of their powers. They can do exactly what they like, apparently, restricted only be section 3 of the Act, which restricts to 100 years the length of leases that they can grant.

That may sound like yet another quaint little constitutional anachronism, but it means that an obscure and unaccountable body has absolute control over activities on 136,000 nautical square miles off the coast of Scotland and a further 60,000 nautical square miles off the coasts of England and Wales. I understand from the Foreign and Commonwealth Office that the area off the coast of Scotland starts from a point 183 miles off the coast of Berwick and extends to points 352 miles north of Dunnet head on the mainland of Scotland and 434 miles west of Ardnamurchan point on the west coast —presumably because that includes Rockall. The Minister has been well briefed, because I have had a chat with him about this matter.

That is a fair scalp of territory, amounting to 202 nautical square miles. How interested are the commissioners in that massive area? Their principal concern is their ownership of properties such as Oxford street, most of Victoria, Whitehall, Regent's park and land at Ascot and Windsor great park — not to mention colossal agricultural and forestry estates all over the country. Who are the commissioners?

Dr. David Clark

Does my hon. Friend assume that the Scottish boundary with the east coast of Britain goes diagonally north eastwards or directly eastwards? That is an important point.

Mr. Home Robertson

It ought to be south eastwards, in order to include the whole oilfield, so that, when we achieve independence—when we achieve autonomy, I should say—we shall have the maximum control over the oil revenues. However, my hon. Friend should not have led me down that byway.

In recent years there has been confusion in respect of licences to develop marinas and fish farming, especially on the West coast of Scotland. There was a famous incident when the Scottish Development Agency, the Highlands and Islands Development Board and local authorities developed a marina at Ballachulish near the old slate quarry. They arranged for a company to operate the marina, only to discover that the Crown Estate Commissioners had granted a licence to someone else, without asking or informing anyone. There have been similar shambles in respect of fish farming. Fish farming rights have been leased to outsiders without consulting the people who might have been using the waters involved for generations. I understand that has been a problem in some west coast sea lochs and the Western Isles.

My interest In the problem started in October 1982, when the Firth of Forth Fishermen's Association told me that it had been informed that the Crown Estate Commissioners had granted a licence to a firm in Greenhithe, Kent, to prospect for sand and gravel on the sea bed off most of the east coast of Scotland. The association had obtained the informations in accordance with a well-intentioned but inadequate code of practice for liaison between the commissioners and fishing and dredging interests, Old Uncle Tom Cobbleigh and all.

My complaint is that there was little consultation, no disclosure of the amount paid, no competition for licences to carry out prospecting work, and no advertisement of the fact that it would be carried out. Civil and Marine Ltd. of Greenhithe, Kent, obtained the licence to prospect for aggregates in most of the area west of a line from Aberdeen to St. Abbs in Berwickshire. That includes virtually the whole of the firth of Forth and the firth of Tay, plus three detached areas further east.

That was more or less a fait accompli for the fishermen of the area. According to the voluntary code of practice, fishing interests were informed that a dredger would be taking samples from the area, which includes valuable fishing and fish breeding grounds as well as grounds used for the catching of prawns, crabs and lobsters. The fishermen objected to what was going on and they lodged their complaint with the Department of Agriculture and Fisheries for Scotland, with me as their Member of Parliament and with the Crown Estate Commissioners.

I took the matter up with the commissioners and the Minister of State, Scottish Office, who was then Lord Mansfield. I understand that a meeting took place between the company and the fishermen under the auspices of the Department of Agriculture and Fisheries. A letter from the secretary of the Eyemouth and District Fishermen's Association about that meeting said: Company spokesmen"— that is Civil and Marine Ltd— met with DAFS officials and representatives from the Scottish Fishermen's Federation, the Firth of Forth Fishermen's Association and the Fife Fishermen's Association in Chesser House on 10 December. It was pointed out by the fishing representatives at that meeting that the areas envisaged for sand/ gravel extraction contained spawning ground—that much of the area included prolific fishing grounds, and that further, they strongly objected in principle to the issuing of licences without prior consultation with the industry. I was amazed by the reply from the Minister of State, Scottish Office. In a letter dated 6 December 1982, Lord Mansfield said: I am not surprised that the fishing organisations are sensitive about any proposed dredging in the Firth of Forth which contains some very important fishing grounds. Indeed, my Department have already advised the Crown Estate Commissioners of their objection to the use of certain of the licensed areas where prospecting operations could adversely affect fishing grounds. My officials are arranging a meeting with Civil and Marine to discuss these objections. I should, however, stress that the final decision on individual licenses is for the CEC. You may wish to contact them direct. I find it amazing that the Minister, who is supposed to have overall responsibility for fishing in Scotland, should have to crawl to this curious body to register objections.

12.30 am

In spite of the objections and the representations, the exploration went ahead, and on 30 November the new Minister of State, Scottish Office, Lord Gray of Contin, wrote to me saying that the Crown Estate Commissioners had received an application to exploit the sand and gravel which had been located in four areas off the east coast of Scotland. The first is off Arbroath, where it is proposed to dredge 150,000 tonnes per year for 20 years. The second is off Bell rock, where it is proposed to dredge 500,000 tonnes per year for 20 years. The third is off Dunbar in my constituency, where it is proposed to dredge 500,000 tonnes per year for 20 years. The fourth is near Buddon Ness, where it is proposed to dredge 350,000 tonnes per year for 20 years. That represents 30 million tonnes of material. The part of my constituency that is affected is just one mile from the town of Dunbar, just off Belhaven beach. The area is five miles long and one and a half miles wide. It is a colossal development, which will remove 10 million tonnes of material. It is bound to have an effect on the marine environment and could also have effects on shore.

We do not know what the effect of such development is likely to be on employment, but it is unlikely that any local people will be employed in such an operation. I am sure that it will have a serious and adverse effect on the feeding and breeding habitat of fish. It will therefore create big problems for my constituents who make their living from fishing. It was therefore no surprise to me last week to receive a letter, signed by 63 constituents who work in the fishing industry in Dunbar and North Berwick, saying: We the undersigned, members of the Dunbar and North Berwick Lobster Association, are deeply concerned about the above dredging application which if granted, would lead to the termination of our engagement in the fishing industry. The area in question is our prime fishing ground and there are twenty boats involved employing a total of sixty men. If granted, this dredging operation would lead to financial ruin, unemployment and hardship not only to ourselves but to our wives and children. This threat is a dark, ominous cloud hanging over our heads as Christmas approaches and we would be grateful if you would do everything possible to ensure that this application proceeds no further. We may add that the Prawn Fishermen are in exactly the same position and the granting of this application would have the same adverse consequences on them. We are confident of your support and look forward to hearing from you. They are rightly confident of my support, and they have already heard from me. I understand that there is to be a meeting on Friday between the developers, the fishermen and the Scottish Office. However, I cannot see how the interests of all concerned can be reconciled. I remain convinced that the Crown Estate Commissioners are not the best people to adjudicate in such a case.

Apart from other considerations, the commissioners are an interested party as part of their function is to get revenue out of the operation. How they can adjudicate with regard to planning I find hard to understand. I am not alone in that belief. I should like to quote from a letter that I received on 3 January from the Earl of Crawford and Balcarres, who is the chairman of the Crown Estate Commissioners. He wrote: We are not constitutionally well placed as Crown Estate Commissioners to operate a planning control — apart from anything else, we are an inevitably interested party … My own view is that what may be required in this field is development of a planning control system for the seabed rather than any amendment to the Crown Estate Act. That is more or less what I am seeking. The unhappy experience of fishermen in my constituency and elsewhere arises from what seems to be a totally unsatisfactory position in respect of the Crown Estate Commissioners for the control of planning of developments on the sea bed. Perhaps the Crown Estate Commissioners make a good enough job of Windsor great park—perhaps not—but they are not the right people to have exclusive and unchallengeable authority over the sea bed, even if they have the benefit of informal advice from the Department of Agriculture and Fisheries for Scotland and its scientists.

Local planning authorities control other physical industrial developments well. They are accountable to their electorates and have no vested interests as such in the way that the Crown Estate Commissioners have. They could extend their planning control over developments on the sea bed. That is what the new clause is intended to achieve. According to my researches, it would put the job of adjudicating development proposals from the point of view of planning on the sea bed in the hands of 22 specific local planning authorities — three regional councils —Highland, Borders and Dumfries and Galloway—three island councils—Western Isles, Shetland and Orkney—and 16 district councils, from Argyll and Bute in the west to east Lothian in the east.

Those local planning authorities would be well able to do the job with the advice of fisheries interests, the specialists of the Department of Agriculture and Fisheries for Scotland and other scientists. They would be able to take those interests into account together with tourism, fishing and other commercial interests. I recognise that one of the authorities I mentioned—Western Isles — would have a colossal area to cover. Presumably, it would become responsible for the big area off the west coast, including Rockall. But why not? The Western Isles council represents people who live near the sea, many of whom make their living from the sea. It is better than the Crown Estate Commissioners, who have been shown by recent experience to be remote, ill-informed and inept in the handling of responsibilities relating to the use of the sea bed off the coast of Scotland.

The Bill is supposed to correct one set of anomalies. I urge the House to take this opportunity to correct another set of anomalies.

12.38 am
The Under-Secretary of State for Scotland (Mr. Michael Ancram)

I recognise the persistence of the hon. Member for East Lothian (Mr. Home Robertson), who has presented the new clause to the House before in similar form. It was previously clause 2 of the Crown Estate (Foreshore and Seabed) (Amendment) Bill that the hon. Gentleman presented to the House in March this year. I am not sure whether on that occasion he gave the House the geography lesson that he gave us tonight, which impressed the hon. Member for South Shields (Dr. Clark), if not many of the rest of us. Clause 1 of that Bill sought similarly to extend the scope of the Town and Country Planning Act 1971, the equivalent statute for England and Wales. The Bill also provided for a register of sea bed rights.

As the hon. Member made clear, his proposal to extend the system of town and country planning in Scotland to the foreshore and sea bed arises from his concern about the system of licensing of activities on the sea bed by the Crown Estate Commissioners. His particular concern is to ensure that applications for activities such as sea-based fish farming and the extraction of marine-based aggregates, which might have adverse effects on sea fishing, should be subject to the system of control that applies to land-based developments and which, in Scotland, is exercised for the most part, but not exclusively, as the hon. Gentleman said, by district councils as planning authorities. So far as the foreshore is concerned, the Planning Acts already apply to any non-Crown development. As the hon. Member is aware, the issue of the Crown Estate Commissioners' rights and duties in relation to the sea bed was debated in the House during the passage of the Miscellaneous Financial Provisions Act in the last parliamentary Session.

During the House's consideration of that measure, my right hon. Friend the Parliamentary Secretary to the Treasury gave an undertaking that the Government would consider whether there was scope for changes to present controls of sea-based developments exercised by means of the system of leasing by the Crown Estate Commissioners. Our consideration of this difficult and complex issue is, I am afraid, not yet complete, but the Government are in no doubt that seaward extension of the system of town and country planning in Scotland would be an inappropriate framework for exercising control. Planning controls do not, and never have, extended beyond the low-water mark. An extension of the planning function to territorial water and, as the hon. Gentleman said, far beyond that, would have to embrace both development plan making and development control. The preparation of comprehensive sea plans would have considerable resource implications for the many authorities that would be involved.

Moreover, authorities would be unlikely to be well placed to assemble and comprehend the data necessary for the preparation of such plans. If only development control were to be extended to sea-based developments, it is difficult to envisage the basis on which planning authorities would derive the expertise that would equip them to determine individual permissions for planning applications. Furthermore, there is much more to development control than merely granting or refusing permission, as I am sure the hon. Gentleman is aware. Complex questions of existing use rights, enforcement and compensation would arise.

The point that is perhaps closest to the hon. Gentleman's constituency heart was his expressed concern about applications to the Crown Estate Commissioners from Civil and Marine Ltd. to extract marine-dredged aggregates at four sites off the Scottish coast. The sites in question are at Red Head, near Arbroath; Bell Rock; the river Tay near Buddon Ness; and north of Dunbar. I understand that those applications were received recently by the Crown Estate Commissioners and, in accordance with the normal procedures, the commissioners asked the Department of the Environment to co-ordinate a view on behalf of the Government in relation to the applications. Consultations with interested Departments are at present under way, and the views of local fishing interests will be taken into account. It will be some time before the commissioners are in a position to determine the applications, but I assure the hon. Gentleman that the views of local fishing interests will be given full weight.

As the hon. Gentleman knows, representatives of the fishing interests have been invited by the Department of Agriculture and Fisheries for Scotland to a meeting with Civil and Marine Ltd. to discuss the company's specific proposals for dredging for aggregates off the east coast of Scotland. The meeting will be held on Friday of this week. My right hon. and noble Friend the Minister of State has made arrangements, following representations from several hon. Members, for the Forth and Tyne Shellfish Producers Association to be invited to the meeting. We have recently received a letter from the hon. Gentleman expressing the concern of local fishermen of the effect on lobster fishing of dredging off Dunbar. Arrangements are being made for this matter to be considered at the meeting with the company.

I hope that, against that background, the hon. Gentleman will appreciate that, while the Government recognise the genuine concern that has prompted the new clause, we believe that it would not achieve the objectives that he has in mind. Therefore, I hope that he will withdraw the new clause, especially as the Government will soon make their position clear on the control of sea-based developments.

Mr. Home Robertson

I might well do that in about 30 seconds, but first may I press the Minister a little further on some points. He said that the Government will bring forward their proposals for the control of sea bed development, but will he throw a little chink of light on the Government's thinking about this complicated matter? He also said that he thought it inappropriate to extend local planning controls to the sea bed. Which is the appropriate authority? He said that the expertise of local planning authorities might fall short of what was required because of the specialised nature of such operations, yet the Crown Estate Commissioners palpably do not have the expertise either. They cannot be seen as the appropriate body to enforce such control or scrutiny, since they are not accountable and are an interested party. I should be obliged if, in a couple of sentences, the Minister would state the direction in which the Government are going.

12.45 am
Mr. Ancram

The hon. Gentleman has been a Member long enough to know that if the Government are to make a statement on their position it would be wrong of me to give an advance notice of what might be in that statement.

The Government are considering whether there is scope for change in the present controls. I am sure that the hon. Gentleman recognises that his suggested solutions are unworkable in the context of the sort of decisions and expertise that are necessary to deal with deep water.

Mr. Home Robertson

I am grateful to the Minister for those two opaque sentences. He can take it from me that there is scope for a major review. I and many fishermen in my constituency look forward to hearing something. It is not good enough for the Crown Estate Commissioners to continue exercising these responsibilities. They have not done so very well, and what is now happening is controversial and in some cases intolerable.

We have been assured that the Government will say something, sometime. Hope springs eternal. I have been in the House marginally longer than the Minister, although there is not much in it, but I am a born optimist and I hope that perhaps even this Government can do something useful.

As the views of the fishermen in my constituency will be given full weight, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Bill reported, without amendment.

Order for Third Reading read.

[Queen's Consent, on behalf of the Crown, and Prince of Wales's Consent signified]

12.47 am
Mr. Macfarlane

I beg to move, That the Bill be now read the Third time.

I must first express my appreciation of the speed with which the House dealt with the Bill's earlier stages. I am particularly grateful to the hon. Member for South Shields (Dr. Clark) and his colleagues for accepting that we were faced with the need for urgent action following the High Court judgment on 22 November, which declared that the informal planning procedures adopted on the disposal of surplus Government land were invalid in certain respects, and for making possible the Bill's, speedy progress.

We may disagree about how much land the Government ought to be selling, but I am glad that we agree so clearly that, when land is being sold, appropriate planning procedures are needed to ensure that the Government obtain the best possible price for it. That is the main thrust of this six-clause Bill. I am grateful for the constructive way in which the hon. Gentleman has approached it, and I hope that it can now speed on its way to another place.

12.48 am
Dr. David Clark

As the Minister has explained, we are considering the Bill in such haste because for the past 20 years—initially under a Government circular, then under section 266 of the 1971 Act and section 253 of the 1972 Scottish Act — many planning applications affecting former Crown land were granted unlawfully. It is amazing that this went undetected and unchallenged for so long.

The fact that this was overlooked for so long illustrates the complexity of town and country planning and the complexities of the Bill. I think that the Minister realises that, although the House has co-operated in rushing the Bill through, there are still anxieties and doubts. I hope that he will ensure that his colleagues in the other place recognise that.

Earlier, the Minister said that, in the rush of getting the Bill before the House, the full consultation procedures normally pursued could not be followed. In the days ahead, I hope that the Government will take every opportunity to let as many people as possible express their opinion of the Bill. We must get it right this time. I hope that we have helped the Government in facilitating the Bill's passage. We recognise the need for the Bill, but I must stress again that we deplore the way in which the Government have forced the National Health Service in particular to sell off land throught financial constraints. Our support of the Bill must not in any way be construed as support for the Government's policy on the sale of NHS land and property.

12.51 am
Mr. Sydney Chapman (Chipping Barnet)

As the Bill received its Second Reading only five days ago, and as hon. Members, at least, did not know until four days ago that the remaining stages would be taken tonight, it would have needed an hon. Member agile of mind and fleet of foot to table an amendment.

Mr. Home Robertson

I tabled a new clause.

Mr. Chapman

Indeed, two hon. Members managed to table amendments. However, those of us who listened to the Minister's excellent contributions last Wednesday prefer to reflect on what he said, and may seek friends in the other place to table amendments if and when necessary.

I welcome the Bill, and should like to thank the Minister for taking up sonic of the points that I raised briefly on Second Reading. I made two points in particular. First, I pointed out that Crown land did not need planning permission, so many planning practices did not apply to such land. I said that it was impossible to put tree preservation orders on Crown land, but that I thought that there might be a case for tree preservation orders or even listed building consent being appropriate where Crown land was being sold. In his letter, my hon. Friend the Minister said that he would consider that sympathetically, with the possibility that the Government might introduce an amendment in the other place. I am most grateful to him for that.

Secondly, and more fundamentally, I said that, where it was intended to dispose of Crown land situated in a green belt area, there must surely be a general presumption that no development might be the most suitable use for that land. If the public is to have confidence in our town and country planning laws and in our development control proceedings, it is important that the Government should be seen to be sensitive about such land in the green belt areas. That is a topical and somewhat controversial matter.

I feel very strongly that there should not be a change in the law. However, where Crown land in green belt areas is thought to be suitable for development for another purpose, I hope that the Secretary of State will make it his practice — under section 35 of the 1971 Act, the principal Act for England, and the appropriate section of the 1972 Act in Scotland—to call in all applications as a matter of course. In particular, I hope that he will hold a public local inquiry. If the Minister reassures me on that point I shall be well pleased. However, I should still prefer it to be written into the Bill.

I apologise for detaining the House, but those two points are important. I am very grateful to the Minister for the sympathetic consideration that he has promised to give to those two points.

12.55 am
Mr. Simon Hughes

I shall detain the House for no longer than the hon. Member for Chipping Barnet (Mr. Chapman), but I want to put several matters on record. It appears from the Second Reading debate, only six days ago, that hon. Members from all parts of the House are unhappy about various elements of the Bill as it stands. They were led to believe by the Minister that he would take on board the concern voiced last week.

The anxieties cover several issues, including the provisions in clause 2 on what happens when consent is not forthcoming. What might happen, for example, in relation to trespassers on Crown land when the Government and local authorities take different views about what should take place and on whether the use of the land should be put back to square one?

Clause 4 also causes concern. It is easy for a Government to wrap up, with regal rectitude, the phrase "Crown land" when we are talking about departmental use of a substantial part of the country's land which does not come within the usual parameters of planning considerations, in spite of the consultation, which normally works well.

The Bill has shown up the difficulties involved when the Crown is master of its own house. When things go wrong, only Parliament can put them right. It has taken us a considerable time to find that anything is wrong and to do something about it. The Minister, speaking for himself, as opposed to the collective for which he takes the responsibility, said that he was not able to look backwards. We want to look forward so that we and the other place have an opportunity soon to discuss at greater length planning constraints and procedures and the possibilities relating to all the different elements of Crown land which form a substantial part of the planning network but which do not involve the same public participation as the rest of our land.

The Government tend to cut corners in planning—a worrying practice. I hope that the fact that this Bill being rushed through is not a sign that the Government want to cut corners even more. Legislation now allows non-public inquiry special development orders. The Secretary of State was defeated in court only two weeks ago on his unwillingness to draw guidelines for the Greater London structure plan.

Th Government have tried to ensure that planning procedures are quick and therefore the democratic processes have not been as good as they have been in the past. I hope that the Minister will take on board our serious anxieties and that there may be some relaxation in the Government's attitude in the other place. I hope that we shall have an opportunity to examine again soon the whole range of planning issues which cause concern to hon. Members in all parts of the House.

Question put and agreed to.

Bill accordingly read the Third time, and passed.

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