HC Deb 28 April 1998 vol 311 cc238-44

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

10.14 pm
Mr. Oliver Heald (North-East Hertfordshire)

I am glad to have an opportunity to raise the issue of the operation of section 100 of the Town and Country Planning Act 1990. It may seem a dry subject, but when it is applied to the circumstances that have arisen in my constituency, it becomes of great importance.

Section 100 allows the Secretary of State to revoke planning permission that has previously been granted. I raise the issue against the background of what has happened in Radwell. I shall outline the history of the case, then ask the Minister what assurances he can give. That will be the best way to examine section 100 in the context of the problem in my constituency.

In 1992, an application was made to build a motorway service area at junction 10 on the Al(M). That site is next to Radwell, a pretty Hertfordshire village with a lake, which is well known locally as a beauty spot. There was great concern locally when the scheme was promoted; those who objected included most of the residents of the village, the parish council and local residents such as Nigel Hawthorn, who said, "No, Minister," on that occasion.

During 1992, the campaign grew, and, early in 1993, it became apparent that a planning inquiry was required. The statutory consultees for the planning process were served with the original planning application and the plan that went with it. One of those consultees was the National Rivers Authority, which had an opportunity to consider the plan. At that stage, the scheme was to cut very little into the chalk on the top of the hill at Radwell, so it seemed that, with conditions, the scheme could be acceptable. The National Rivers Authority put forward its recommendations on that basis, although it pointed out that it had a separate jurisdiction to grant a licence for water abstraction, or consent to discharge water and sewage off the site, and it made it clear that it would look at all the environmental protection aspects at that point.

Shortly afterwards, just before the inquiry team met in 1993, a new plan was produced. It was never shown to the National Rivers Authority. The inquiry proceeded for seven days, and was bitterly contested. After much deliberation, the inquiry inspector came out in favour of the scheme, and the Secretary of State approved it finally in September 1994.

The background to the scheme is that the A1(M) was to be widened. A motorway service area seemed a good idea, at least to the developers. Much of the purpose of the scheme collapsed shortly after planning permission was granted, because the widening was not to go ahead within the roads programme. There was then a long delay of three years before anything else happened. At that point, an application was made for detailed planning permission.

By that time, the National Rivers Authority had become the Environment Agency, but when it saw the detailed planning permission, it was clearly horrified because the depth by which the scheme would cut into the chalk on the hill at Radwell was far greater than it had realised. The difference between the first and second plans was that, instead of the site being developed on the top of the hill, it was to be depressed by some 6 m into the hill. That was proposed for the best possible reasons: the developers wanted to screen the local landscape from the motorway service area, to meet one of the key objections.

However, the effect in environmental terms was serious. The NRA never knew that. When the Environment Agency saw the detailed plans, it put in what could only be described as a strong objection to the detailed planning permission. In its objection letter of 7 October 1997, the agency said:

Groundwater boreholes in this area indicate groundwater level is only 4.5 metres below ground level hence the development would be positioned below the water table. The Agency objects to the proposed development as submitted on the following grounds. The site is located over a vulnerable 'major' aquifer used extensively for potable water supply"— drinking water, that is—

…The proposed development including storage of fuel, drainage of car parking, foul water disposal and substantial reduction of ground levels represent a major risk of pollution to ground waters at this location. Let me explain that a bit. The hill at the top of Radwell is a chalk aquifer like a large sponge. The water from the aquifer feeds into the River Ivel and the Radwell lake, and becomes a tributary of the River Ouse. The aquifer is therefore quite an important component of the drinking water supply in our part of the eastern region.

There is an additional aspect. Putting the site so deep into the chalk meant not just that oil and other pollution would sink into the sponge—the aquifer—and cause a major risk of pollution, but that the two local rivers, the Ivel and the Hiz, which rely on the aquifer to be provided with water, might well be disrupted. It was possible that the drinking water supply would be contaminated, and that there would be problems affecting the supply of water from two local rivers, both of which have been dry in recent years, following the lack of rainfall. There was a prospect of serious problems.

In its objection letter, the agency said that it would be prepared to support its decision with evidence at an appeal. Following that, the NHDC was very anxious, and took the matter up with the Government office for the eastern region. Many local residents took the matter up with me, and I have made my only inquiries with all the relevant authorities. I had the opportunity, with Michael Meredith Hardy, the campaign co-ordinator, to meet the Environment Agency regional general manager.

When the objection letter went in, the Environment Agency thought that it might be able to stop the scheme. It is clear from my researches, however, that, once the detailed planning permission stage is reached, an issue of principle such as this cannot be dealt with at that stage. It seems that a major pollution risk may well be there, but it is hard luck, in that the decision has already been made. That is essentially what is said in letters to me, and to others, by all relevant authorities.

To local residents, the local councillor, to North Hertfordshire district council and to me, it is simply unacceptable that such a gross error can be made in the planning process and nothing can be done about it. It simply is not acceptable that the water supply in our area can be contaminated, and rivers can be made dry, because of some mistake in the planning process. I think that everyone locally shares that view. I ask the Minister whether it is possible for section 100 to provide some relief.

Section 100 says that it is possible for the Secretary of State to revoke a planning permission. I understand that, when the matter has been considered in the House on earlier occasions, it has been said that, if there is a gross error and if a substantial public interest is involved, it is possible to exercise the power. Perhaps the Minister will give some reason why that cannot be done. I hope not. Plainly, there should be a fail-safe mechanism in the planning process so that such problems cannot lead to the risks that the Environment Agency has outlined. The agency is taking legal advice on the matter. I have asked for a meeting with Lord De Ramsey, who is the chairman of the agency, and perhaps a formal application will come to the Minister.

The debate gives the Minister the opportunity to explain whether there is a fail-safe mechanism. If there is not, there jolly well should be. The scheme is a disaster for Radwell, anyway. People do not want to be illuminated all night by a motorway services area. They have been dead against the scheme from the moment it started. It is one thing to have an ugly scheme on one's doorstep, but another to have one that actively damages the environment.

What is the Minister's response to the difficult situation in Radwell? Perhaps he could put the matter in context and explain the operation of section 100 in such circumstances.

10.25 pm
The Parliamentary Under-Secretary of State for the Environment, Transport and the Regions (Mr. Nick Raynsford)

I congratulate the hon. Member for North-East Hertfordshire (Mr. Heald) on securing the debate. I am grateful to him for writing to me in advance with details of his concerns, because that enables me to give a fully considered response.

I am pleased to have the opportunity to respond, as it enables me to explain the Government's policy on the revocation or modification of a planning permission, and to cover the hon. Gentleman's concerns. I hope that, by the end of the debate, he will be reassured that there are safeguards that will protect the interests of his constituents.

Section 100 of the Town and Country Planning Act 1990 is a default power. It enables the Secretary of State to take action to revoke or modify a planning permission, after following specified procedures. There is provision for compensation to be paid by the local planning authority should a claim subsequently be made by a person with an interest in the land.

The Secretary of State's practice is to use the power only rarely. Like earlier Secretaries of State, he takes the view that the power should be used only if the original decision is judged to be so grossly wrong that damage is likely to be done to the wider public interest. He may also be prepared to exercise the power to revoke a planning permission when he considers that consistency is needed between a planning authority's decisions in different cases to ensure that similar circumstances give rise to similar decisions and that the provisions of the development plan, so far as it is material, and other material considerations have been fully taken into account.

It should be remembered that development plans aim to give a measure of certainty and predictability to the system. Section 54A of the 1990 Act requires that, where the development plan contains relevant policies, applications for development that are in accordance with the plan shall be allowed unless material considerations indicate otherwise. Conversely, applications that are not in accordance with relevant policies in the plan should not be allowed unless material considerations justify granting a planning permission.

The Government and local authorities work through the planning system to reconcile the conservation of the environment with development needs. That task cannot always be carried out to everyone's satisfaction. It often involves the difficult task of reconciling finely balanced issues. It would be wrong, as well as impractical, routinely to review instances when planning permission has been granted against that background.

I should emphasise that a planning permission may, in general, only be revoked or modified before the operations permitted have been completed. It may be modified or revoked if it has been partially exercised, but revocation or modification orders cannot affect any development that has been completed, and cannot be made in respect of a change of use once that change has taken place. That does not apply in this case, but I mention it so that the hon. Gentleman may be aware of the ground rules.

Section 100 is available to the Secretary of State to use as he thinks fit, after consultation with the local planning authority. As I have said, intervention by the Secretary of State can be justified only in exceptional circumstances. Between 1955 and 1992, the power was utilised to revoke a planning permission in only 19 cases. Since then, there have been only two more, the most recent of which was in March this year. Although not commonplace, it is more usual for local planning authorities to initiate their own revocation or modification orders under section 97 of the Town and Country Planning Act 1990.

To set the figures I have just given about the Secretary of State's use of the default power in context, I remind the hon. Gentleman that local planning authorities deal with up to 500,000 planning applications each year, of which 85 per cent. are approved. Revocation is the exception.

The power is used only in exceptional circumstances, as Parliament has given local planning authorities responsibility for development control in their areas. It is for them to decide in the first instance whether a proposal should be permitted. The Secretary of State's intervention might overturn the local planning authority's judgment of a matter which is in the first place its responsibility.

The hon. Gentleman has given much of the background to the proposed motorway service area at junction 10 of the A1(M) at Radwell in Hertfordshire. I shall recap briefly. The outline planning application was made in 1992. Following non-determination by the local planning authority, an appeal was lodged with the Secretary of State. After a local public inquiry in 1993, the then Secretary of State granted planning permission in 1994, subject to conditions and reserved matters.

The application for approval of reserved matters was made to the local planning authority, North Hertfordshire district council, last year. At that stage, the Environment Agency objected on the ground that site excavation would breach the water table and threaten water supplies and water courses. In October 1997, North Hertfordshire district council approved the reserved matters, but drainage and water supply conditions remain to be satisfied. That is crucial. Until those conditions are discharged, development cannot start.

The hon. Gentleman has made much of the amended plans put to the inspector at the inquiry, which he accepted before recommending approval of the scheme. I understand that, in the interests of natural justice, the inspector asked at the start of the inquiry whether there were any objections to his accepting the amended plans. None was made, and he proceeded to determine the appeal on that basis. Had the inspector considered the revised plans to be so different as to change the nature of the proposal fundamentally, he would have declined to consider them, and the appeal—

Mr. Heald

The difficulty was that the National Rivers Authority had seen the original plans and made its comments on them. It was unaware that there were any new plans, because it was not represented at the planning inquiry. That is one of the faults in the process that has been adopted. Does the Minister have any thoughts on that?

Mr. Raynsford

I understand the hon. Gentleman's point. I have two comments to make in response. First, no one objected to the revised plans, although I understand that the NRA may not have been represented. Secondly, the inspector would have had to form a judgment on whether the revised plans differed so materially from the original as to make it impossible for him to consider the application. Had he believed that, he could not have proceeded with the application on the basis of the revised plans.

I do not doubt the genuineness of the Environment Agency's concerns over a possible pollution risk to the groundwaters in the area. The hon. Gentleman is rightly concerned about that as well, because it affects the livelihood and well-being of his constituents. However, the inspector considered the issue in his report and was satisfied that, subject to certain conditions to control emissions to groundwater and streams, there would be no risks from the development. Conditions to that effect were imposed by the then Secretary of State when he granted planning permission.

The local planning authority has not made any decisions on compliance with those outstanding conditions from the original consent. If the development is to proceed, the site owners must negotiate with the Environment Agency to find technical solutions to the drainage and water table issues. Unless that is done, the local planning authority will not discharge the outstanding conditions. If that continues to be so, planning permission will lapse in late 1999.

Alternatively, it is open to the site owners to submit revised proposals to North Hertfordshire district council if they consider that another solution to the problem can be found.

For the policy reasons already explained, I do not consider that there are grounds to justify my right hon. Friend the Secretary of State taking the exceptional course of revoking the planning permission. It would certainly be premature, given the need for negotiations to ensure compliance with the conditions already imposed. In any case, if the Secretary of State were to take that course following a local public inquiry, a claim for compensation from the developer would be likely. Such claims can be very substantial. I should stress that the claim is not against the Secretary of State but against the local planning authority. For that reason, revocation of a planning permission must be seen as a very serious matter for the authority.

In this case, as I hope that I have demonstrated, there is an alternative remedy. The Environment Agency has to be satisfied with the site owners' proposals for dealing with the problems in order to give its consent to the local planning authority agreeing to discharge the conditions. As I have already implied, if that agreement is not given, development cannot proceed. There is a safeguard in place. I hope that that reassures the hon. Gentleman that his concerns are respected, and that there is a proper safeguard in place to meet them.

I repeat that, if the development is to proceed, the site owners must negotiate with the Environment Agency to find solutions to the problems that the hon. Gentleman has identified. Unless that happens, the local planning authority will not be in a position to discharge the outstanding conditions, and therefore no development can take place. I hope that that reassures the hon. Gentleman that the fears that he has described need not arise, and that there are sufficient safeguards in place to ensure that the interests of his constituents will be properly protected.

Question put and agreed to.

Adjourned accordingly at twenty-four minutes to Eleven o'clock.