HL Deb 07 February 1946 vol 139 cc312-27

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Henderson.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD STANMORE in the Chair.]

Clause 1:

Enforcement after end of war period of building laws and planning control.

1.—(1) Where during the period beginning with the third day of September, nineteen hundred and thirty-nine, and ending with' the commencement of this Act (in this Act referred to as the "war period") works on land have been carried out which do not comply with a building law, any period of time limiting the taking of steps for enforcing the law shall be calculated without regard to time elapsing during the war period.

5.10 p.m.

LORD HENDERSON moved, at the end of subsection (1), to insert: or to time elapsing after the end of that period during which, notwithstanding the provisions of the next following subsection, the building law is unenforceable by reason of the subsistence in or over the land of any interest or right to possession held by or on behalf of the Crown".

The noble Lord said: I do not think there will be any difficulty in persuading your Lordships to accept this Amendment. Clause 1 (1) provides that in calculating the time during which a building law can be enforced, the war period shall be ignored. Clause 1 (2) gives a local authority the right to enforce the ordinary building law against non-conforming works constructed by the Crown during the war period, as defined in Clause 1 (1), if the Crown disposes of the land or grants a long-term tenancy. Building law is, as a rule, enforced by summary proceedings for which there are various time limits. These will, however, all have expired if the Crown disposes of the land more than twelve months after the passing of the Bill. It has been pointed out that in the Bill as it left another place no provision was made for the enforcement of building law in such a contingency, and this Amendment fills that gap. The effect of subsection (1), if the Amendment is accepted, will be that where the Crown disposes of any land at any time after the Bill becomes law the twelve months for summary proceedings will not begin to run until they dispose of it. I beg to move.

Amendment moved— Page 1, line 11, at end insert the said words.—(Lord Henderson.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2:

Power to sanction war-time non-compliance with building laws or planning control.

2.—(1) At any time before the expiration of five years from the end of the war period, a person entitled to make an application under this subsection with respect to any land may apply to an authority responsible for enforcing any building law or planning control for a determination under this section with respect to works on the land carried out, or a use of the land begun, during the war period.

(2) Upon an application being made to them under the last foregoing subsection the authority shall determine whether the works or use fail to comply with any building laws or planning control which they are responsible for enforcing, and if so shall specify the law or control in question.

(3) Where the authority determine that works or a use fail to comply as aforesaid they shall further determine whether the works or use shall, notwithstanding the failure, he deemed so to comply, either unconditionally or subject to such conditions as to the time for which the works or use may be continued, the carrying out of alterations, or other matters, as the authority think expedient.

(8) Where the applicant is aggrieved by a determination given by an authority under this section or by the refusal of an authority to entertain an application made thereunder, or where a person by whom representations have been made as mentioned in the last foregoing subsection is aggrieved by such a determination, he may within the period of twenty-eight days after he has notice of the determination or refusal, or such extended period as the Minister of Health may allow, appeal to that Minister, and that Minister may give, in substitution for the determination, if any, given by the authority, such determination as appears to him to be proper, or, if he is satisfied that the applicant was not a person entitled to make the application, may decide that the application is not to be entertained:

Provided that at any stage of the proceedings on such an appeal to him the Minister may, and shall if so directed by the High Court, state in the form of a special case for the opinion of the High. Court any question of law arising in connection with the appeal.

(12) On any application or appeal under this Section the applicant, or in the case of an application referred to the Minister of Health for decision or in the case of an appeal to that Minister the applicant or the authority responsible for enforcing the building law or planning control in question, may require the authority or Minister by whom the application or appeal is to be determined to afford him or them an opportunity before the application or appeal is determined of appearing before and being heard by a person appointed by the authority or the Minister for the purpose.

5.15 p.m.

VISCOUNT MAUGHAM moved, after subsection (3), to insert: (4) In making the determinations referred to in the preceding subsection regard shall be had to all relevant circumstances, and, amongst those circumstances,

  1. (a) to the state of things existing at the time when the works were carried out or a use of land begun which does not comply with a building law or with planning control; and
  2. (b) to the question how far the authority or any person acting on behalf of the Crown was requesting the owner or occupier of the land to carry out the works or to begin the use objected to; and
  3. (c) to the equity of the case as well as the public interests involved."

The noble and learned Viscount said: The power which is given by Clause 1 (2) is a very wide one. The noble Lord, in opening the debate on the Second Reading, pointed out that there were cases where important works have been established which were of great use to the country and where, by some inadvertence or by the stress of the circumstances of war, some particular provision of one of the Housing Acts or Planning Acts had not been complied with. Under the clause as drawn it will be possible to insist upon these works or the use of the works, being treated as illegal, with consequences which may be exceedingly serious, as the noble Lord quite frankly admitted, to the owners of the works or the people who are engaged in running them. No statement in the Bill as it stands shows the nature of the things which should be considered by the authority when, under Clause 2 (2), in determining whether the works or use fail to comply, and, under (3), where they determine the works or use fail to comply, in further determining whether the works or use shall be deemed to comply or in making such order as to the time for which such work or use may be continued, the carrying out of alterations, or other matters, as the authorities think expedient.

Speaking from a large experience, I know very well that where authorities like that are given in any Acts of Parliament, Judges and counsel are constantly complaining that the Act does not say how the power conferred has to be exercised and on what grounds. The Housing Acts themselves contain, in a clause with which I need not trouble your Lordships, a realization of that in a statement that the authority in making such an order has got to have regard to certain circumstances. I have tried here to do no more than set out, with a completely even hard, the circumstances to which I think the authorities ought to have regard and, as a result, to which the Minister of Health, to whom there is an appeal under subsection (8), himself should' have regard. Although I am not wedded to the exact phrases I have used, I have been in hopes that either these particular words or something like them might be inserted, not to have any result beyond that the local authorities, who often do not contain lawyers, or the Minister of Health, who often is not himself a lawyer, should be told the sort of thing which has to be considered.

Take the case—it may be an extreme one—where an important manufacturer is asked to construct works on a piece of land which are thought at the time the request is made to him to be absolutely essential to the benefit of the country. I think a good many of your Lordships will know, as I have occasion to know, that after Dunkirk there was in certain quarters what may be described as a panic, because we found we were so unprepared with a number of things and had lost a very large part of our armament. I know quite well there were people who were urgently requested by the highest authorities to get to work and make certain things as soon as possible, and when they said "We have no factory" they were told to take a piece of land and do the job.

In a case like that it must be quite impossible that the local authority should not have regard to the circumstances under which the works were erected, and the user of the land started, or the actual factory built on the land. All I want to ensure is that the local authority before whom the matter may come do not think that because they have come to the conclusion there has been a neglect to comply with some building law or planning control they must therefore exercise the strict letter of the law, and, it may be, send people into liquidation in an extreme case. If my words are bad words—and I am not wedded to them at all, as I have said—let us have something different, let us have an improvement on them, but do not let the position stand as it is, where it would almost seem that the local authorities, without considering anything except the question of whether the rules have been properly observed, will at once exercise the powers which they have been given under this Bill. I beg to move.

Amendment moved— Page 2, line 45, at end insert the said new subsection."—(Viscount Maugham.)

LORD HENDERSON

The purpose of the noble and learned Viscount's Amendment is one for which there would be a good deal of sympathy were it not already provided for in the Bill. Let me give the position as it is in the Bill. The local authority when dealing with a case under the preceding subsection will necessarily have regard to all the relevant circumstances. Nothing is barred. Since they are to have the express power to determine that works shall be deemed to comply with the law, either unconditionally or subject to conditions, even though they in fact do not comply with the law, they must, amongst other things, consider how those works came into existence. One of the circumstances-they will have to consider will be, of necessity, whether the owner or occupier of the land carried out the work at the instance of a Department of the Government or of the local authority itself. If they decide against the owner of the land, there is, under subsection (8), a right of appeal to the Minister of Health, and he in turn will have to have regard to all the circumstances.

VISCOUNT MAUGHAM

Are those words there anywhere? The point whether all the circumstances have got to be considered is at the basis of what I am saying. Certainly in subsection (2) there are no such words.

LORD HENDERSON

The fact that the Bill provides that either authority can come to a determination that a building may be carried on, with conditions or without conditions, despite the fact that there is a breach of the law, to my mind indicates that all relevant circumstances will be taken into account and not merely the technical position under the law.

VISCOUNT MAUGHAM

They ought to be taken into account, but it is another question whether they will be.

LORD HENDERSON

The Amendment also proposes that the equity of the case is to be taken into account as well as the public interest involved. The scheme of the Bill is that the authority which has the primary function of enforcing the law and the Minister of Health on appeal shall have regard to all possible interests, public and private, and there is nothing in the Bill to suggest that cases are to be decided on a narrow or technical ground. For these reasons I am unable to accept the Amendment of the noble Viscount, and I hope that in the light of my explanation he may not feel it necessary to press it.

VISCOUNT MAUGHAM

If the noble Lord had had as much experience of the Courts as I have had, we should not have heard the speech he has just made. I feel quite satisfied that it does not necessarily follow that the various things I have set out in my Amendment will be as a right insisted upon by the person who has done the work or has been guilty of the use which is wrong. However, there it is. I only suggest that he should take legal advice on this subject. It is the commonest thing to insert such words as "having regard to all the circumstances of the case," and indeed I could call attention to a number of cases in which those words have been inserted. In the Housing Act, for example, they were put in. If he would only put in those words I should be, not indeed fully, but partly content. I would strongly urge the noble Lord at a later stage to reconsider this matter, but I do not insist on my Amendment.

Amendment, by leave, withdrawn.

5.25 p.m.

LORD BALFOUR OF BURLEIGH moved, at the end of subsection (8), to insert: provided also that the Minister of Health may, in giving any determination as to whether any works or use fail to comply with any Building Laws, direct that where the work or use has been carried out in accordance with a code generally recognised as satisfactory according to up-to-date practice it shall be deemed to comply with the Building Laws for the purposes of this Act.

The noble Lord said: The point is that I am informed that building laws in certain parts of the country are really not up to date, and that there may exist a code of practice which does not comply with the building laws but is nevertheless quite satisfactory and recognized by the best professional people as being so, and at the same time is less exacting than the building laws at present in force. I understand that there is published by the Code of Practice Committee under the aegis of the Ministry of Works a volume called "The Code of Functional Requirements," and that this differs from the by laws in some parts of the country. I hope the noble Lord will see his way to accept this Amendment.

Amendment moved— Page 2, line 45, at end insert the said proviso.—(Lord Balfour of Burleigh.)

LORD HENDERSON

I am afraid that I shall not be able to give the noble Lord any more favourable reply on this Amendment than on the last. I will give the reason for that. The point has frequently been made that building laws are not brought and kept up to date. It is true that amongst the building laws set out in Clause 7 of this Bill there are included some statutes of the last century, but I gather from the noble Lord's speech that he is thinking particularly of the building by-laws of local authorities, and in this case too his assumption is erroneous. The fact is that the building by-laws of all local authorities in England and Wales were brought completely up to date in the interval between the Public Health Act, 1936, and the outbreak of war. There is nothing in the Bill to prevent the Minister from doing what the Amendment proposes to empower him to do. It is open to local authorities under Clause 2 (3) or to the Minister on appeal under Clause 2 (8) to determine that a work is to be deemed to comply with the law, even though in fact it does hot, and it is evident that one of the grounds on which such a determination would be made would be that the work, although contravening the law, did accord with some recognized code of practice drawn up by a professional organization. In the light of that explanation I hope the noble Lord will not press the Amendment.

LORD BALFOUR OF BURLEIGH

The explanation is more satisfactory to me than the one given to the proposer of the previous Amendment. I have much pleasure in withdrawing.

Amendment, by leave, withdrawn.

LORD BALFOUR OF BURLEIGH moved, at the end of subsection (12), to insert: (13) Any direction, decision, determination or appointment of the Minister of Health under subsections (7), (8), (9), (10) or (12) of this section relating to planning control shall not be made without prior consultation with the Minister of Town and Country Planning.

The noble Lord said: This Amendment refers not to building by-laws, but to planning control, and it arises from the fact that although I read Clause 2 twice over on the occasion of the Second Reading I failed to understand it. I have read it twice more since then and still fail to understand it. The object of my Amend, merit is to make quite sure that in matters of planning control the Minister of Town and Country Planning will be the person who will have a considerable say. I was not brought up as a lawyer, and only a lawyer can understand the clause, but if I have an assurance that the reference to the Minister of Town and Country Planning means that he in fact will have the right to be treated as the authority on Town and Country Planning it would at least give me some comfort. But if that is so, I cannot see any reason why my Amendment should not be put in the Bill.

Amendment moved— Page 5, line 2, at end insert the said new subsection.—(Lord Balfour of Burleigh.)

LORD HENDERSON

What the noble Lord has in mind in moving this Amendment is perfectly clear. The method he suggests, however, is open to objection. The Government is but one Government, and it is an incorrect procedure to impose a duty on one Minister of the Crown to consult another Minister when exercising a statutory function. When two or more Ministers are concerned administrative arrangements between the Departments affected are always made with a view to ensuring the necessary liaison. The relation between the Minister of Health as the building authority under this Bill and the other Departments or Ministries who may be concerned with it has been the subject of a great deal of consideration. If the Minister of Health were put under the express obligation to consult the Minister of Town and Country Planning in certain matters he ought logically to be required to consult the Minister of Transport with regard to matters arising under the Restriction of Ribbon Development Act, the Road Improvements Act, and other relevant legislation. He ought, perhaps, also to be required to consult the President of the Board of Trade in regard to questions affecting the use of factories which are being turned over for civilian production.

In short, there is no reason for the consultations which might be laid down to stop short with town and country planning. I can assure the noble Lord that in practice there will be close and constant consultation between the Ministry of Health and the Ministry of Town and Country Planning upon the application of planning law under this Bill, as there will be with other Departments concerned with various aspects of building law. It is probable that some questions can be settled on general lines without the necessity for individual consultation in the cases which arise. But, obviously, any cases of importance will have to be the subject of specific consultation with the Ministry of Town and Country Planning or, as the case may be, with the Ministry of Transport. I hope, therefore, that the noble Lord will not press the Government to put on the face of the Bill an obligation which is already implicit in the Bill, and which it is contrary not only to sound constitutional doctrine but to the modern practice in such matters to make explicit.

LORD BALFOUR OF BURLEIGH

In view of the noble Lord's very considered and definite statement that there will be definite arrangements for consultation, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3:

Supplementary provisions as to enforcement

3.—(1) Where during the period of five years beginning with the end of the war period any person proposes to take steps for enforcing a building law or planning control in the case of works on land not complying with the law or control in question carried out during the war period, or a use of land not complying with the planning control in question begun during that period, he shall serve on every owner and occupier of the land not less than twenty-eight days' notice of the proposal, and if within the said period of twenty-eight days any person makes an application under the last foregoing section in relation to the land and within seven days of the making thereof serves on the person proposing to take steps as aforesaid notice that the application has been made, no steps for enforcing the law or control shall be taken until the final determination of the application.

(2) In calculating any period of time limiting the taking of steps for enforcing a building law, any period during which the taking of such steps is delayed by the operation of the last foregoing subsection shall be disregarded.

(3) No proceedings for the recovery of a fine or other penalty shall be brought against any person for having carried out during the war period works on land which do not comply with a building law:

Provided that this subsection shall not affect proceedings for the recovery of expenses incurred in taking steps for enforcing a building law.

(4) Where works on land carried out during the war period' do not comply with a building law, steps for enforcing the law may, notwithstanding anything in any enactment, be taken without, previous conviction of any person of a contravention of the law.

5.35 p.m.

LORD HENDERSON moved, in subsection (1), after "period," where that word fourthly occurs, to insert: ("(a) unless an application under the last foregoing section in relation to the land has been made which has not been finally determined.")

The noble Lord said: This Amendment, together with the Amendment proposed to be made later in this clause will remove a possible overlapping with Clause 2, and they are intended to do two things. The first is; that a notice under subsection (1) need not be served if a Clause 2 application has already been made and is pending; and the second is that the enforcing authority cannot take steps to enforce while a Clause 2 application is being dealt with. This Amendment will secure the first object. I beg to move.

Amendment moved—

Page 5, line 8, after ("period") insert ("then— (a) unless an application under the last foregoing section in relation to the land has been made which has not been finally determined").—(Lord Henderson.)

On Question, Amendment agreed to.

LORD HENDERSON moved, at the end of subsection (1), to insert: (" (b) if such an application has been made which has not been finally determined, no such steps shall be taken until the final determination thereof: Provided that no notice shall be required under paragraph (a) of this subsection if steps for enforcing a building law or planning control in the case of any works on land are begun within twenty-eight days of the final determination of an application under the last foregoing section in relation to the land.

The noble Lord said: The words here proposed to be inserted are intended to secure the second object to which I have referred, namely, that the enforcing authority cannot take steps to enforce while a Clause 2 application is being dealt with. The proviso will dispense with the necessity for a notice under subsection (1) if proceedings to enforce the law are begun within twenty-eight days after the determination of a Clause 2 application. The purpose of such a notice is to give the owner or other persons interested time to make a Clause 2 application. If there has already been such an application, and proceedings for enforcement are begun promptly after its determination, it may be assumed that a new application on a change of circumstances cannot be made, and there is, therefore, no need to give notice that steps for enforcement are proposed to be taken. I beg to move.

Amendment moved— Page 5, line 16, at end insert the said words.—(Lord Henderson.)

On Question, Amendment agreed to.

LORD HENDERSON moved, at the end of subsection (2), to insert: (3) Where a determination under subsection (3) of section two of this Act that works or a use of land shall be deemed to comply with a building law has been given subject to any condition as to time or otherwise, and the determination ceases to have effect by reason of the time expiring or the condition not being, or ceasing to be, complied with, any period of time limited for enforcing the law—

  1. (a) where apart from this subsection it would run from the date on which the works were carried out or the use was begun, shall run from the date on which the determination ceased to have effect;
  2. (b) where apart from this subsection it would run from the discovery that the works had been carried out or the use had been begun, shall run from the discovery that the determination has ceased to have effect.
(4) Subject to the provisions of subsection (1) of section one of this Act and of the last foregoing subsection, the time within which a notice of irregularity may be served under subsection (2) of Section eighty-nine of the London Building Acts (Amendment) Act, 1939, in respect of works carried out during the war period shall be the expiration of twelve months from the end of that period or the time limited by the said subsection (2), whichever is the later.

The noble Lord said: The point of the new subsection (3) is that under the Bill as it left another place there was no express provision for a local authority to exercise its ordinary summary powers, if a conditional determination under Clause 2, allowing a building or use to continue for a time or subject to conditions, ceased to have effect by expiry of time or breach of any condition. The local authority would not, in those cases, have been left without remedy, because they could have taken proceedings in the High Court, but it has been thought right to put them as nearly as possible in the same position as they would have been in had the conditional determination not been given. The effect of the Amendment will therefore be that the local authority will have twelve months from the date on which the determination ceases to have effect within which to take summary proceedings to enforce the law. The provision in paragraph (b) making time run from the discovery of this fact is necessary for London. I will deal with that in the next new subsection.

The new subsection numbered (4) is being inserted to meet a point which has been brought to notice by the London County Council. The London Building Acts Amendment Act, 1939, contains a provision peculiar to London, by which the District Surveyor can serve what is called a "Notice of Irregularity" upon discovering that a building does not comply with the law. He must, however, serve this notice within three weeks of making the discovery. The District Surveyors in London are already aware of many cases where there have been contraventions of the ordinary law. It will not be practicable (nor indeed would it be at all desirable from the point of view of property owners) to serve within the period of twenty-one days from the passing of the Act all the notices required. The Amendment, therefore, proposes to give twelve months for the serving of a notice of irregularity, this being the same period as is allowed by the Public Health Act, 1936, to provincial local authorities for taking summary proceedings to get a building altered if it does not comply with provincial building law. I beg to move.

Amendment moved— Page 5, line 20, at end insert the said new subsections.—(Lord Henderson.)

On Question, Amendment agreed to.

LORD HENDERSON moved to insert: (7) For the purposes of this section an application shall be treated as having been finally determined notwithstanding that under the proviso to subsection (9) of the last foregoing section a subsequent application may be made under subsection (1) thereof.

The noble Lord said: The purpose of this proposed new subsection is to enable local authorities to enforce the law in the light of the circumstances existing at the time when a Clause 2 application is dis posed of, notwithstanding that upon a change of circumstances a fresh application to allow the building to stand or a use to continue might be made. Without this new subsection there would be no finality and local authorities would be stultified in enforcing the law when a Clause 2 application has been refused. I beg to move.

Amendment moved— Page 5, line 32, at end insert the said new subsection.—(Lord Henderson.)

On Question, Amendment agreed to.

LORD CHESHAM

had given notice to move, at the end of subsection (4), to insert: (5) Notwithstanding anything contained in any building law or in the Town and Country Planning Acts, 1932 and 1943, or the Town and Country Planning Act, 1944, no person upon whose land works have been carried out or a use of land begun not complying with such building law, or with any planning control shall, where such works have been carried out or such use begun, either by or on behalf of the Crown or of a local authority, be liable for any expense consequent upon the taking of steps to enforce such building law or planning control in excess of the total of the following, namely:

  1. (a) Any amounts which may have been received by him under the provisions of section 2 (1) (b), or section 3 (iv) of the Compensation (Defence) Act, 1939; and
  2. (b) Any financial benefit which he may have received from the said works or from the said use of such land."

The noble Lord said: When I put down this Amendment I intended it as a genuine Amendment and a genuine effort to improve this Bill and in no spirit of controversy whatever. The noble Lord, Lord Henderson, was good enough to tell me that he was unable to accept this Amendment. I then hoped that the Amendment put down by the noble Viscount, Lord Maugham, might to some extent relieve the position, but that also has not been accepted. In fact, it is getting fairly obvious that no Amendments from this side of the House are going to be accepted. I must say that I think that is a very great pity and the time might easily come when we might have to insist on reasonable Amendments of this kind being accepted. At least we might insist on better explanations for their rejection than the ones we have been having of late. However, the noble Lord in charge of the Bill also told me, quite rightly probably, that there was another issue involved in this Amendment of mine and that that was the issue of Privilege, that supposing it was passed by your Lordships it would entail a Financial Resolution in another place. Well, if the Government are going to resist my Amendment here and if it would entail a Financial Resolution in another place, I really honestly see no hope of this Amendment getting on to the Statute Book. I do not want to delay your Lordships in a very heavy day's business, so I do not propose to move my Amendment at all.

Clause 3, as amended, agreed to.

Clause 4 agreed to.

Clause 5:

Power of Entry.

(3) If any person who in compliance with the provisions of this Section is admitted into a factory, workshop or workplace, discloses to any person any information obtained by him in the factory, workshop or workplace with regard to any manufacturing process or trade secret, he shall, unless such disclosure was made in the performance his duty, be liable to a fine not exceeding one hundred pounds or to imprisonment for a terra not exceeding three months.

LORD HENDERSON moved, in subsection (3), after "liable," to insert "on summary conviction." The noble Lord said: This Amendment is purely technical. The provision which it proposes to amend was inserted in another place upon an Opposition Amendment accepted at a late stage by the Government. That Amendment unfortunately was incomplete in that it did not provide for enforcement. My Amendment remedies that omission. I beg to move.

Amendment moved— Page 6, line 46, after ("liable") insert ("on summary conviction")—(Lord Henderson.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 agreed to.

Clause 7:

Interpretation.

(6) In calculating for any of the purposes of this Act the period of five years from the end of the war period there shall be disregarded any time during which a building law or planning control is unenforceable by reason of the subsistence in or over land of any interest or right to possession held by Dr on behalf of the Crown.

LORD HENDERSON moved, in subsection (6), after "which "to insert" notwithstanding the provisions of subsection (2) of Section one of this Act." The noble Lord said: Again, the point of this is purely technical. The purpose of this Amendment is to remove the appearance of verbal conflict between this subsection and Clause 1 of the Bill. I beg to move.

Amendment moved— Page 9, line 25, after ("which") insert ("notwithstanding the provisions of subsection (2) of Section one of this Act.")—(Lord Henderson.)

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Remaining clauses agreed to.