Planning Decisions (Northern Ireland) (Hansard, 10 February 1987)

§ Mr. J. Enoch Powell (South Down)
I would not normally trouble the House, especially at this time of night, with a detailed constituency case of the apparent failure of planning control. Nor would I take up the time of the Minister and his advisers in so doing if I did not believe that the circumstances of the case were symptomatic of something which is faulty in the system of planning control in Northern Ireland that threatens to deprive it of public confidence and, in some cases, to create a public scandal. However, I must first lay before the House, as briefly as I can, the events in the case to which I wish to draw attention. I shall put them in chronological order.
There is a building plot in a development known as Moyra drive, Saintfield, in my constituency. On 18 August, an application was received for planning permission to erect upon that plot, which is situated between two existing houses, a two-storey house. That was considered in the planning department, and on 20 October, in the normal course, the district council was consulted by the department with a recommendation that the application should he refused. The district council agreed with that recommendation.
Three days later, on 23 October, an amended application was received, and renewed consideration was given to it. As a result of that, on 17 November the district council was again consulted, again with a recommendation to refuse the permission, and again the district council was found to be in agreement with that recommendation.
Meanwhile, however, on 6 November work had begun on the site with a view to the erection of the house concerned. On 14 November, three days before the second consultation of the district council, a distinct warning was issued by the department to the developer. It is perhaps worth quoting the terms in the words of the divisional planning officer: The applicant was warned on 14 November 1986 that the commencement of development without the benefit of planning permission constitutes a breach of planning control.
In spite of all that, the work continued steadily, and on 8 January I was written to again. The wording of the letter from the divisional planning officer is significant, and is worth putting on the record. He said: You will appreciate that the Department does not normally proceed to enforcement action pending the outcome of a planning application. However, the applicant has already been advised that the development had started on site without the benefit of planning permission. At the same time an assurance was sought that the development would cease pending the outcome of the planning application. In addition the applicant was advised that failure to comply with this request may result in enforcement proceedings. The last that is known of the matter is that, if the house is not fully complete, it has nearly reached completion.
That course of events must naturally arouse our anxiety. It is bound to cause local and more widespread offence, since it implies that the administration and the law make it possible for planning control to be openly flouted. Here is a development for which planning permission was sought, and for which planning permission was not 288 forthcoming, but which nevertheless was put in hand and carried through to completion. So far as I am aware, no enforcement action has been taken.
There is one result of this on public opinion and there is one result on events in the Province. The result on public opinion is that it is generally concluded that planning control will not be made to stick — if a developer is sufficiently determined to go ahead in breach of or in the absence of planning control, he stands a good chance of getting away with it. Whatever steps are properly taken by the public—through their elected representatives on the district council and through their representatives in the House and by direct representations to the department—nothing will happen, but the development will be carried on. No doubt, in due course, some way .will be found of sanctioning, retrospectively, what has happened. That is the effect on public opinion.
It is serious that there should be the consequent loss, which certainly exists, of confidence in the planning process. One loss of confidence breeds another. It means that everyone who is aggrieved by a planning decision will be tempted to take the law into his own hands. It will mean that there will be a general belief that there may be planning laws, area plans and the rest of the contraption but, in the end, a developer will get away with it if he defies the planning law. It is, of course, an incitement precisely to that kind of defiance of the law which we have seen in this case — a "defiance of planning control", as the developer in this case was candidly informed he was committing by the department on more than one occasion.
I hope that the Under-Secretary of State will accept that there must be something wrong if a course of events can happen such as that which I have placed before the House and of which I think the hon. Gentleman is already aware. It may be that the failure is administrative. It may be that a different decision should have been taken or that a planning refusal should have issued at an earlier date, in which case the matter is capable of being remedied, not only in this instance but in other instances, by a more prompt reaction. It may be, however, that there is some fault in the powers which are available to the planning authority if such a blatant defiance occurs in the absence of planning control in the face of a department which is minded to refuse planning permission and which is supported in that intention by the relevant district council.
I hope, therefore, that the Under-Secretary of State will take the opportunity which this short debate affords not so much to clear up what happened in this case—although it will need to be cleared up to the satisfaction of public opinion in the immediate area-but to ensure that the planning process is fortified in the Province, both in practice and in the minds of the public.

§ The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Richard Needham)
I thank the right hon. Member for South Down (Mr. Powell) for giving me advance notice of the proposition that he was bringing forward tonight. I will, of course, answer the points that he made as best I can in the particular and in the general.
On the matter of Moyra drive, Saintfield, the original application of 18 August 1986 to which the right hon. Member for South Down referred was to put a two-storey house on a piece of land which on the original plan had been designated as a play area. The application was not to put the house on the road that went through the estate 289 where the house is now being built. Because it was behind the existing houses and on the play area, the Department felt that the application should be turned down; it consulted the district council and the application was turned down.
The developer then came back and moved the application for the house to be sited between two existing houses, more in line with the existing buildings. At first, the view of the Department was that that application should also be refused. However on reflection, and once the Department had discussed the matter with the road engineers, it was felt that the application would have to be granted.
Any developer can put in an amendment to his original plans or a re-amendment, and he frequently does. That is the position and it happens in Northern Ireland and all over the United Kingdom. Hon. Members are not always greatly enamoured of the practice when it happens within their constituencies. In this particular case, the Department's preliminary view is that on the second application there are no planning grounds for refusing the application. We have consulted the district council on the basis of this latest opinion and it has deferred consideration of the application at its meeting and sought a site meeting. As a result of that decision by the district council on 4 February of this year the Department served an enforcement notice and a stop notice on the developer requiring him to halt work. The divisional planning officer did not begin formal enforcement proceedings earlier because the Department had been moving through what I accept is a tortuous process, towards approving the application.
As the right hon. Gentleman said, the Department sought the co-operation of the builder and asked him to cease the building while the planning application was considered. That request was ignored. The right hon. Gentleman is absolutely right about the building being three quarters of the way up, because I have looked at the photographs of it today. However, the work has now been stopped. I will, of course, keep the right hon. Gentleman informed about what happens in future developments on that site.
I now turn from the particular to the general. Stressing the point about the rights of applicants to bring forward different planning applications to change existing permissions that they have received, I know that the right hon. Gentleman has expressed concern to me that the Department on occasion may fail to take those matters into consideration because of the effects of outside bodies on the Department's proposals.
I have discussed that matter most fully with my officials to see if there was any truth in that suggestion. There is none. The Department must look at the merits of each application according to existing planning policy. The Department need have no reason or fear about going beyond or outside that. Although I accept the right hon. Gentleman's point that if builders go out and start building without planning permission and the Department fails to act it inevitably gives the impression to the public that all is not well with the planning procedure.
I have turned over the papers and correspondence that the right hon. Gentleman had with some of my predecessors, particularly my hon. Friend the Member for Hampshire, North-West (Mr. Mitchell), about the 290 Department's policy on enforcement against unathorised development. At that time he questioned article 19 of the Planning (Northern Ireland) Order 1972 which, as the right hon. Gentleman is aware, empowers the Department to consider applications for planning permission for buildings or works constructed or in the process of construction before the date of an application. Article 19 allows applicants to receive authorisation for unathorised development where an individual seeking to sell a property could find himself in a position of real hardship. The tenet behind that comes from the Town and Country Planning Act 1947 which says that development without planning permission is not in itself an offence. That is primarily because in some cases there can be real difficulty in deciding whether planning permission should have been applied for in the first place.
I accept that if permissions after the event become the order of the day then, of course, the planning system will fall into disrepute. Our experience is that the vast majority of developers seek permission before starting work. Article 19 is there as a fallback power which is needed to avoid some planning irregularities where development is acceptable. It is not a power that is used simply to avoid enforcement action where such action is clearly necessary.
On the question of numbers, in 1986 some 20,000 applicants in Northern Ireland submitted themselves to the existing system and the Department found itself serving 34 enforcement notices and eight stop notices. There are, of course, many additional cases of unauthorised development and they are resolved without recourse to formal action. Very often the most effective way of dealing with the problem is where an authorised developer can be persuaded by the divisional planning officer without formal action, to end his breach of control.
I repeat that I recognise the disquiet that raises when builders and others commence development without applying for planning permission or even awaiting the outcome of planning applications. The Department does not condone that action. It is certainly unacceptable that some individuals should seek to avoid the procedures which as I have said most developers and most applicants submit to. Further, such action, as the right hon. Gentleman said, creates the perception that the Department is precluded from an objective view of the merits of the case when it consents to the building after the event. I have to say to the right hon. Gentleman that that perception is not correct. The developer who jumps the gun does not receive any advantage and in many cases he has to undo what he has put up in an unauthorised way.
For example, in Islandmagee in county Antrim recently a developer started constructing a house and garage. He was asked by the Department to stop work but submitted a planning application instead and continued work on the house and garage. Enforcement and stop notices were served and planning permission was refused. Development ceased and eventually, following a number of court cases, the Department ensured that the development was removed.
In another case, with which I am familiar because political pressure was brought on the issue, a 15 ft high wall — an extremely unpleasant looking wall — was erected along the coast at Portstewart in county Londonderry without permission. Even though a planning application was submitted, the Department served a stop notice and an enforcement notice requiring the demolition 291 of the wall. I hope that the right hon. Gentleman accepts that, when a planning application falls outside planning policy, the Department will take action.
In consideration of the need or otherwise for enforcement action, the Department adheres to the view that the developer should gain no advantage or suffer no penalty by virtue of the fact that development commenced without the benefit of planning permission. That view is supported by the Planning Appeals Commission in its consideration of appeals against enforcement notices, and it applies equally throughout the United Kingdom.
To summarise the general position, we have a policy of considering enforcement action when development is started without permission. Developers who do not follow the rules gain no advantage from doing so and retrospective applications are dealt with solely on their merits.
It might he that the right hon. Gentleman does not agree with current planning policy throughout the United Kingdom, which presumes in favour of the applicant even when he retrospectively applies for permission. Any change would require an alteration to the existing United Kingdomwide planning policy going back over 40 years, which is not something that I am in a position to grant this evening.

§ Mr. J. Enoch Powell
I am grateful to the Minister for his reply and for the trouble that he has taken to establish and reflect upon the facts of the case. I think that he and the Department will wish to draw some practical deductions from this experience.
292 In the light of what the Minister has explained to the House, I think that it is regrettable that an enforcement and stop notice was not issued in November rather than in February. Had that been done, very likely the development would not have proceeded as it did in the following two months. What principally caused the public scandal was when it became known that the Department's original recommendation on the second application had been for a refusal, and that that had been concurred with by the district council.
If something is to come out of this individual case that is of more general application, it may be—I leave this with the Minister for reflection—that recourse to stop and enforcement notices should he taken at an earlier stage than, perhaps, has been happening in all instances.

§ Mr. Needham
The reason why the enforcement and stop notice was not issued in November was that, by that time, the Department felt that permission might be granted. Nevertheless, I very much take on board the right hon. Gentleman's points. In this case, the building was going ahead without permission, and it should not have done. As I said, we have now issued stop and enforcement notices. I shall certainly discuss with my officials the necessity that, in such cases, we should carefully consider whether, where appropriate, we should take action earlier to stop this happening.