HC Deb 11 January 1989 vol 144 cc967-74

Motion made and Question proposed, That this House do now adjourn.—[Mr. Lightbown.]

12.9 am

Mr. Robert Key (Salisbury)

On 22 December, I tabled a written question to my right hon. Friend the Secretary of State for the Environment. I asked on how many occasions in the last year for which figures are available were proceedings taken against contractors and developers under sections 3 and 16 of the Control of Pollution Act 1974; and if he will make a statement.

My hon. Friend the Under-Secretary of State for the Environment, the hon. Member for Surrey, South-West (Mrs. Bottomley), in reply, told me: proceedings were taken in England and Wales in 130 cases under section 3 of the Control of Pollution Act 1974, and in eight cases under section 16.

I also asked my right hon. Friend the Secretary of State whether he will review the enforcement powers available to local authorities under current planning and pollution control legislation; My hon. Friend the Member for Surrey, South-West told me that the Department had appointed Robert Carnwath QC to review local authorities' planning enforcement powers. His report is expected in the new year. An announcement will be made shortly afterwards. We have also announced proposals which should make local authorities' enforcement powers more effective in relation to air pollution and waste disposal."—[Official Report, 22 December 1988; Vol. 144, c. 434.]

I urge a speedy announcement following receipt of the Carnwath report. Believe it or not, I have read the lengthy material which has been collected over about two years and I congratulate my right hon. Friend the Secretary of State for the Environment and my hon. Friend the Member for Surrey, South-West on their work, which I greatly welcome.

I also asked the Secretary of State for the Environment if Her Majesty's inspectorate of pollution has inspected the site used by contractors acting on behalf of Tesco Stores at Petersfinger near Salisbury. I tabled that question because something had gone wrong there. Suddenly and unexpectedly, the meadows had been buried. My hon. Friend the Member for Surrey, South-West told me: Her Majesty's Inspectorate of Pollution has not inspected the site but is aware of the situation. The matter is one for local planning and waste authorities, both of which are taking the necessary action."—[Official Report, 10 January 1989; Vol. 144, c. 505.]

If the necessary action was being taken, what had happened in Salisbury to cause such anger by so many people and community organisations? The Tesco store in Salisbury is in a cramped part of the town and is very popular. It was decided to move the store out of town, unfortunately to land designated for industrial use. Objections were made by Wiltshire county council and Salisbury district council because they could not recommend a breach of their own structure plan. That decision was overturned on appeal by my right hon. Friend the Secretary of State for the Environment, with costs being awarded against Salisbury district council. The store is now under construction.

On 18 December I received a letter from Mr. Andrew Christie-Miller, the county councillor for the ward involved. He said that the contractors had completely ignored the request by the county council to cease operations and apply for planning permission. As a result, by Saturday 17 December their work was complete, and about five acres of valuable water meadow lying not only within a special landscape area but also within the landscape setting to a historic town had been lost. He said that the action of the contractors was totally unacceptable and that their flagrant disregard for the statutory planning system was nothing short of scandalous.

Salisbury civic society and the south Wiltshire branch of the Council for the Protection of Rural England also wrote today: So valuable are these meadows, it is absolutely imperative that any development or alteration of them should be allowed only after careful consideration. It is intolerable that a developer should, by working non-stop with masses of heavy equipment, be able to make a major alteration in part of them without permission and before anything can be done to stop him. It is especially galling that the developer doing this at great haste at the moment is building an out-of-town superstore which was strongly opposed by the District and County Councils and members of the public at the planning appeal Inquiry, but nevertheless sanctioned by the Minister responsible. On 19 December Wiltshire county council issued a statement saying that it regretted what had taken place. It said: it is quite clear from the evidence that, on December 8, the agent for the company carrying out the tipping was made aware that planning permission was required and that, pending an application for planning permission, tipping should stop. This advice was confirmed in a letter to the company in which the company was invited to act responsibly and to cease tipping. The county council went on to say: On a general level, local authorities faced difficulties in preventing such activities because some companies, while fully aware of the legal position, flout the law on the basis that time is on their side and not on the side of the local authorities. The county council said that it would pursue that matter vigorously.

Salisbury district council acted impeccably throughout, reporting what was happening to the south-east planning sub-committee on 7 December. I visited the site on the afternoon of Saturday 16 December. The site manager and I had an amicable and detailed discussion in the course of which he said that, with the wisdom of hindsight, it would have been better to apply to the relevant authorities. It was clear that the whole operation had been meticulously planned by the developers. The highway authority and the police had been consulted about the transporting of the waste from the site of excavation on one side of the road to the meadows on the other, the road in question being the A36 main trunk road between Bristol and Southampton. Arrangements had been made for clearing the mud off the road and no objection had been received from the police. "Why not?" I asked myself. I have to say that I was horrified.

I ask my hon. Friend the Minister to have words, during the course of her busy life, with our hon. Friend the Member for Eltham (Mr. Bottomley), the Minister for Roads and Traffic, because huge earth-moving trucks, normally associated with motorway development, were trundling around the site. It was dusk. Those vehicles were not lit in accordance with any highway regulation. They were operating around a roundabout on a busy public highway. Were they insured? What would have happened if there had been an accident? Was the diesel oil taxed for highway use? The police told me that they are powerless to stop this sort of highway use by those vehicles as a result of a court judgment some years ago involving a little dumper truck which had to transport bricks from one part of a building site to another across what was technically a public highway. This is another aspect of waste dumping, but what is waste? After all, one man's waste is another man's profit.

The outcome of this saga to date is that the owner of a few acres of second-rate agricultural land, sandwiched between a sewage works and a commercial development and which, in a few years, will be unhelpfully cut off by a likely and welcome bypass of Salisbury, has gained a great deal of new top soil. That is true, but is definitely not the point. The point is, why do we have a Department of the Environment, local planning authorities, dedicated councillors on planning committees and professional planning officials if our statutory planning regulations can be ignored with such impunity? At a time when the Government are making such good and welcome progress on environmental matters, it is tragic to see irresponsible developers ignoring local sensitivities in the name of progress.

Of course, developers have clever lawyers who now argue that it was really agricultural improvement all along, so they did not need planning permission. That is significant. If Tesco was so sure that it did not need any planning permission or other agreement, why did it not go through the usual channels which, as an experienced developer, it knows very well? If it had thought of agricultural improvement as a legitimate reason for dumping before this row, why did it disregard Wiltshire county council, Salisbury district council and Wessex water authority, take no notice of them and ignore their officials and their letters? I hope that the newly knighted Tesco chairman, Sir Ian MacLaurin, in his shining armour, will at the very least knock together the heads of those of his employees who are in danger of besmirching his escutcheon. This is no pleasure to me because Tesco has a good record on health food in its stores. It is good on environmental matters such as the introduction of unleaded fuel for its fleet of vehicles.

Early on, Wiltshire county council and Salisbury district council were criticised for acting so slowly, but, if they had rushed into an enforcement order and issued a stop notice, or had, after that, sought a slow and costly High Court injunction, the developers could have subsequently argued agricultural improvement as a justification and been awarded substantial costs against the county and district councils. I have been told that, in a recent similar case in the south of England, the costs were a quarter of a million pounds against a planning authority.

Local planning authorities are increasingly inhibited from taking enforcement action because, as the District Planning Officers Society says in its response to the Department of the Environment review of planning control enforcement powers, The Planning Control system is intended to control development in the interests of the community, with fairness to the developer. The community may reasonably ask that that should be done effectively, efficiently and economically. The present system of enforcement has failures in respect of each of those aims. In particular, it is slow, uncertain, expensive and potentially dangerous for the enforcing authority. At least one reported case has dragged on for six years without the enforcement notice coming into effect.

There is a conflict of authority between completing detailed statements of development control policy contained in local plans and the published ministerial statements and guidance. That gives great scope for legal arguments about which should be followed in a particular case. The powers of enforcement and penalty tend to be ineffective when used against a determined or well-resourced contravener. Of course the costs incurred in a semi-judicial appeals procedure are well out of proportion to the costs considered reasonable in the original development control decision-making process.

In the Salisbury case, an informal request to a developer's contractor to act reasonably and stop dumping waste failed, as it usually does. I am sure that many hon. Members have discovered that the public are speechless when told that works carried out without consent are not illegal. Opinion is steadily concluding that penalties should be imposed for carrying out development without planning permission. In other words, it should be criminalised. I understand that the Royal Town Planning Institute still opposes that course. However, tomorrow the Association of District Councils will hold a crucial meeting to reconsider its position on opposition to criminalisation. Previously it had said that it was opposed to criminalisation. Tomorrow's decision will be very significant. Perhaps when my hon. Friend the Minister addresses the District Planning Officers Society later today she will have something to say about that.

Apart from the fact that the law is often breached too lightly in the belief that an appeal is likely to succeed and in the knowledge that there is no penalty, unauthorised development can cause irreparable ecological damage. The fear that magistrates courts would be unable to deal with the complex issues involved in enforcement procedures is unfounded. If the offences were criminalised, the evidence is that penalties like those for contraventions of building regulations which are imposed successfully by magistrates courts would not be needed frequently. That procedure actually cuts down the number of offences.

There are far fewer cases of serious contraventions of building control regulations than there are breaches of planning control. That is a good argument in favour of criminalisation. The penalties imposed by the courts in practice often do not reflect the potential profit to the contravener arising from his contravention or, in many cases, the damage to the environment or—and this is crucial—damage to public confidence in the system. That confidence is very important. I was distressed to see the low morale of district councillors serving on planning committees and the general public's disbelief about the planning process in recent years. Penalties should therefore be related to public confidence and damage to the environment.

The water authority is a crucial partner in the Salisbury case. This is a crucial issue which the Department of the Environment should bear in mind as the Water Bill is before the House. The general manager of Wessex Rivers wrote to me on 22 December. He informed me that, in this case, the authority was advised of the situation by Salisbury district council early in the morning of Wednesday 7 December 1988. It contacted the contractor during that morning and informed him that, because the River Avon is a main river, the dumping of waste requires consent in accordance with land drainage byelaw No. 28. Consent had not been applied for, and the contractor was verbally advised to cease operations and make application for consent.

That telephone conversation was confirmed by the authority's letter dated 7 December 1988. It contained a notice to stop work as prescribed by the Land Drainage Act 1976. The contractor ignored both the water authority notice and its advice and disposed of all the material on the site. He submitted a retrospective application for consent, which is being considered.

On 10 January, Wessex Rivers received a retrospective planning application. However, the developer is not off the hook yet. Because the dumping used up flood storage capacity, that volume must be restored in another way. The ecology and the geomorphology of the River Avon basin is very delicate. For about 300 years, it has been subject to a complicated system of controls by which water flow is restricted so that little flooding occurs downstream. Crucial to that control is flood storage capacity. In this case, the developer has removed that capacity. It will not be easy to lower the flood plain close to the dumping site. The geology is not simple. More significantly, the site is close to a sewage works having a system of main drains that must not be disturbed.

Another aspect is the Nature Conservancy Council's statement that significant flora and fauna have been lost beneath the tipping. It wants the developer to provide an alternative area with the plants protected. A decision on that will be taken as soon as possible. So we have seen 300 years of English history and of English countryside buried. Salisbury fought and lost the battle to prevent the construction of an out-of-town retail development on scarce agricultural land. A public inquiry into another superstore development at Netherhampton road reopens on 21 February. That site is also on meadowland, in sight of the cathedral.

Not only are planning authorities unable to foresee the kind of irresponsible dumping that I have described, but they have no authority to prevent it. It is doubtful that a section 52 agreement on dumping is appropriate. Not only Salisbury will be watching future development like hawks.

I beg my hon. Friend the Minister to step up the monitoring of the operation of local authority enforcement. How can the community protect its environment in the present circumstances? Salisbury is a thriving commercial centre, and has been for 700 years, having adapted to changing patterns of retailing over those centuries. But it is also the country of Constable, Isaac Walton, Handel, Augustus John, William Golding and V. S. Naipaul. Above all, Salisbury is one of our great medieval cities, crowned by our cathedral. Does that count for so little when weighed at the grocery counter?

Often my hon. Friend the Minister has shown her true mettle in her ministerial job in caring for our environment. What advice will she give our elected councillors and the House tonight?

12.28 am
The Parliamentary Under-Secretary of State for the Environment (Mrs. Virginia Bottomley)

I congratulate my hon. Friend the Member for Salisbury (Mr. Key) on once again taking the opportunity to raise subjects of great and serious concern to his constituents. They are fortunate to have a Member of Parliament who represents their interests so forcefully, assiduously and ably. My hon. Friend raises a matter of serious concern and a particularly regrettable case.

Many right hon. and hon. Members will be familiar with the splendid landscape setting of the historic town that my hon. Friend represents. In this matter, there are distinct roles for each level of local authority primarily responsible. The district council has responsibility for enforcement action in matters of local planning control. As to waste disposal in England, the county council generally has responsibility for deciding planning applications, and is the waste disposal authority under the Control of Pollution Act 1974. That gives the county council responsibility for preparing a waste disposal plan for controlled waste and for issuing disposal site licences where planning permission has been granted.

The county council should also be responsible for enforcement in cases of possible contravention of the Control of Pollution Act 1974, including any suggeston of the illegal dumping of controlled waste on unlicensed land.

As my hon. Friend said, in the chapter of events that unfolded during December both district and county councils rapidly become aware of what was happening and took steps to inform those concerned of the implications of their actions. I understand that Salisbury district decided on 4 January not to take further action at this stage in it; capacity as local planning authority, but the planning and countryside panel of Wiltshire county council is meeting later this month to consider what action it might take. The county council has already stated that it will pursue the matter vigorously, within the limits of the law.

This is essentially a local matter, albeit an extremely serious one: it is rightly and properly the concern of the local authorities. My hon. Friend will therefore understand that it is not appropriate for me to comment specifically any further at this stage. I think that it would help, however, if I described the range of available powers in planning and waste disposal enforcement which are relevant in this and similar cases.

Our planning system is of long standing. It seeks to balance the rights and interests of developers with those of the community. My hon. Friend rightly referred to the. important question of public confidence, and we are looking at that very carefully. The administration of such matters rests essentially with the local planning authority, which is primarily responsible for deciding on planning applications, enforcing decisions and taking steps when faced with possible offences under the Town and Country Planning Acts. The Secretary of State has a range of appellate functions under that legislation, which include rights of appeal against enforcement action. The provisions have been criticised at times for being slow and cumbersome; local authorities themselves have been concerned about the opportunities for delay afforded by procedures for appealing against such action.

My hon. Friend referred to the Carnwath inquiry. An action plan and the report of an efficiency scrutiny of enforcement notice appeals were published in May 1988. Following that, Robert Carnwath was asked to undertake a review of planning enforcement powers. My hon. Friend rightly said that enforcement should be effective, efficient and economical, and that too often it is slow, uncertain and expensive.

The terms of reference of the review are to examine the scope and effectiveness of provisions in parts V and XII of the Town and Country Planning Act 1971 relating to enforcement of planning control—including appeals to the Secretary of State—and to make recommendations for improvements to the present provisions, or for alternative provisions. As part of the review Mr. Carnwath has consulted the local authority associations, the professional bodies and many other organisations concerned with planning control, and is now considering their comments.

My hon. Friend referred to the suggestion that development without planning permission should be made a criminal offence, to dispense with the need for lengthy enforcement actions after the event. Whether or not the Association of District Councils decides to take up that suggestion, it will be a matter for Mr. Carnwath's consideration, and we shall await his report with interest.

My hon. Friend also referred to enforcement of the provisions of the Control of Pollution Act. Again, these are primarily matters for the relevant waste disposal authories—mainly county councils in England and district councils in Wales. Section 3 of the 1974 Act makes the deposit of controlled waste without a licence illegal except in certain prescribed circumstances. Those circumstances are if a waste is not within the definition of "controlled waste", or if the operation is specifically exempted by the Collection and Disposal Regulations 1988—for example, the deposit of waste on agricultural land as fertiliser, or if the waste is being treated in ways specifically exempted from licensing requirements. Prosecution of an offence under this section brings a maximum penalty of £2,000 and a two-year term of imprisonment, or unlimited fine on indictment.

In addition, steps can be taken by the authority under section 16 to serve a notice on the occupier of the land requiring removal of any illegally deposited waste, and action to eliminate or reduce the consequences of such a deposit. There are penalties for anyone failing to comply with such a notice.

It can be seen that there are existing powers for local authorities to act on the deposit of wastes. It is for them to consider the various issues; whether controlled waste is involved; whether the operation is or is not exempted by one route or another and to take into account the local circumstances of any particular incident.

In general terms, we should like local authorities to take more rigorous action over prosecutions under the Control of Pollution Act 1974. I put that strong message to waste disposal officers at a waste disposal conference in 1988. It is very important for public confidence that the regulations are seen to be enforced and for it to be seen that when cases have been properly prepared and firmly represented, prosecutions have every chance of being successful and of being particularly effective in improving disposal standards, reducing fly tipping and dealing with similar problems. My hon. Friend referred to the figures which I had already supplied to him.

Waste disposal authorities are further supported by Her Majesty's inspectorate of pollution. We have recently increased the number of inspectors dealing with waste matters from five to 14. That will put them in a particularly effective position for the systematic audit of waste disposal authorities and for conducting a progressive review of and adding to the 26 waste management papers that are already available. It must be recognised, however, that the inspectorate is not there to inspect and control each individual disposal site. That is the function of the waste disposal authorities. Their task is to provide an audit function and to advise on and set standards.

I hope that I have clearly spelt out many of the powers that are already available to waste disposal authorities to ensure the safe disposal of controlled waste. However, we believe that there is scope for improvement. The Department has made proposals and has consulted relevant groups with a view to strengthening the law that governs waste management.

In essence, we want the controls to be extended to cover not just the actual disposal of waste, as is the case now, but the whole process from the time that the waste is produced, through its transportation and disposal to the time when a landfill site can finally be certified as being safe.

We propose to introduce a duty of care on producers and holders of waste to take all reasonable steps to ensure the legal and safe disposal of that waste. It will not then be possible for a producer simply to hand over his waste to a contractor and forget about it without first satisfying himself about the contractor's competence.

Carriers of controlled waste will have to be registered with a waste disposal authority, with powers for authorities to refuse or revoke registration if the carrier is convicted of a pollution offence. A waste producer, to exercise his duty of care, will need to check that his carrier is licensed. Equally, the carrier will have to check on exactly what he is carrying to avoid committing an offence himself.

We also propose that, when considering applications for disposal licences, authorities will be able to take account of relevant convictions of the applicants in the previous five years, their technical competence and their financial stability. There will be powers for authorities to impose pollution control conditions to apply to a site after the deposit of waste at that site has ceased. Sites will thus have to be monitored until we can be satisfied that they are safe in the long run.

In addition, we envisage the imposition of charges, both for licences and for carrier registration. That will not only provide resources for authorities but, even more important, will ensure that, through the price mechanism, the polluter really does pay.

My hon. Friend has raised a very important constituency case, about which, rightly, both he and his constituents are deeply concerned. Salisbury is a historic town. It is situated in the midst of fine countryside and is surrounded by areas of great natural significance. The local authorities are still considering these matters. The Government are committed to the provision of the highest possible standards and procedures for licensing, for the disposal of waste and for regulating and enforcing licences.

To support the proposals that I have outlined there is a range of other, less dramatic but nevertheless significant changes that we plan to introduce as soon as the legislative programme permits. In total, they add up to a comprehensive overhaul of the system that has generally served us well over the past 10 to 12 years. The package that we are assembling will provide for a coherent system of waste management that will last us well into the 21st century. I shall, of course, bear in mind the example that has caused so much concern to my hon. Friend and his constituents.

Question put and agreed to.

Adjourned accordingly at twenty-one minutes to One o'clock.