§ After Clause 33, insert the following new clause:
§ Enforcement of limitations imposed by development orders
§ (".—(1) Where by a development order (whether made before or after the commencement of this Act) permission is granted for any development subject to limitations specified in the order, sections twenty-three and twenty-four of the Act of 1947 (which relate to the enforcement of planning control) shall, subject to the provisions of this section, have effect in relation to any non-compliance with those limitations as they have effect in relation to noncompliance with any conditions subject to which permission is granted for any development.
§ (2) For the purposes of this section and of the Act of 1947, any provision of a development order (whether made before or after the commencement of this Act) whereby permission is granted for the use of land for any purpose on a limited number of days in a period specified in that provision shall (without prejudice to the generality of references to limitations in this section or in that Act) be taken to be a provision granting permission for the use of land for any purpose subject to the limitation that the land shall not be used for any one purpose in pursuance of that permission on more than that number of days in that period.
§ (3) Where, in the case of any development which has been carried out before the commencement of this Act,—
- (a) permission for that development was granted by a development order subject to a limitation (whether by virtue of such a provision as is mentioned in the last preceding subsection or otherwise) and
- (b) a notice purporting to be an enforcement notice under section twenty-three of the Act of 1947 has been served before the
1015 commencement of this Act, alleging that the development was carried out without planning permission, and the steps required by that notice to be taken have not been taken before the commencement of this Act,
§ (4) The validity of a notice purporting to be an enforcement notice under the said section twenty-three (whether served before or after the commencement of this Act) shall not depend on whether any non-compliance to which the notice relates was a non-compliance with conditions, or with limitations, or with both; and any reference in such a notice to non-compliance with conditions or limitations (whether both expressions are used in the notice or only one of them) shall be construed as a reference to non-compliance with conditions, or with limitations, or both with conditions and limitations, as the case may require.
§ (5) In the application of this section to Scotland, for references to the Act of 1947 and to sections twenty-three and twenty-four of that Act there shall be substituted references respectively to the Scottish Act of 1947 and sections twenty-one and twenty-two of that Act; and in subsection (3), for the words `four years after the date of the alleged failure to comply therewith' there shall be substituted the words `two years after it has come to the knowledge of the local planning authority that the limitation has not been complied with'")
§ The Commons proposed to amend the above Amendment as follows:
§ Line 21, leave out subsection (3);
§ Line 54, leave out from ("Act") to end of line 58.
§ THE LORD CHANCELLOR
My Lords, the two Amendments which were made in another place and which are connected, affect the new clause that was inserted after Clause 33. Your Lordships will remember that that clause was inserted to deal with the effect of the decision in Cater v. Essex County Council. That decision dealt with a technical difficulty that had arisen: that the County Council had served a notice stating that the person in question had acted without permission, whereas under the general planning order a temporary permission for twenty-eight days had been granted; and on that the notice was held to be wrong. Subsection (3) of the clause dealt with existing development, and a difficulty was felt in that regard because the clause dealt with cases in which the development had already occurred, including the Cater 1016 case itself. Under Section 23 of the Act an enforcement notice had to be served within four years of the time the development was carried out. In the Cater case, and in a few other cases, this time limit had expired, and it was therefore provided in subsection (3) that a further notice could be served at any time within one year of the commencement of the Bill. This, however, might be thought to be unduly oppressive, to seek to reverse the decision of the court in this way, because persons like Mr. Cater, and a few others in a similar position, have by the passage of time acquired certain existing use rights.
My Lords, we carefully considered the matter and we realised that in a small number of cases it might be unwelcome to the local authorities. But I should like to emphasise that the change suggested in another place will affect only a limited number of cases where, first, an enforcement notice has been served but not complied with and, secondly, the notice was of a particular kind which the judgment in the Cater case has shown to be invalid; and thirdly, the four years since the alleged contravention will have run out by the time the Act comes into force. It is only where these three factors co-exist that the dropping of subsection (3) will make any difference. As I say, there must be a small number of such cases. The Amendment to subsection (5) is consequential. My Lords, I beg to move that this House doth agree with the Commons in the first Amendment to the Lords Amendment.
§ Moved, That this House doth agree with the Commons in the said Amendment to the Lords Amendment.—(The Lord Chancellor.)
§ LORD SILKIN
My Lords, I suppose that we have got to agree with the Commons in this Amendment—we have no choice. Therefore any discussion that the noble and learned Viscount and I have on this is a pure formality. None of us wants to run the risk of defeating the Bill, or even of having a major quarrel with another place on a matter of this kind. But I am bound to say that I think they are wrong; and I think that the noble and learned Viscount's reasons for asking us to agree with this Amendment—namely, that it is only a little one, and that there will not be many cases of this kind—are not altogether convincing.
1017 First, it is not correct that people in these cases have acted on a temporary permission; they have obtained no permission at all. The 1947 Act gives them the right temporarily to carry out development or to act in the way they have done; but no more. It was never intended that they should be able to carry on with this development for more than a month without applying for permission. What has happened is that, on a pure technicality, when they were challenged after carrying on beyond the permitted period under the Act they were able to say that they were not carrying out this development in defiance of the Act; that because they had permission to carry on for a month, the notice challenging them was wrong. I do not think that such developers are entitled to any sympathy at all, and it seems to me a great pity that we are allowing them to carry on and preventing the local authorities from putting the matter right on what is a pure technicality. Nor am I, as I say, convinced by the fact that this will apply to a limited number of cases. However, if we are going to have a first-class battle with the other place I should not have thought this was a big enough issue to have it on; and therefore, with great regret, I think we have to let it go.
§ THE LORD CHANCELLOR
My Lords, I have great sympathy with the point of view which the noble Lord, Lord Silkin, has put forward. As he will appreciate, the difficulty is that in these cases the four-year period had expired, and therefore it could be argued that, with however much lack of original method at the time of expiry of the Bill, an existing right had been acquired, and that is the other point of view. I am grateful to the noble Lord for the restraint he has shown to-day in accepting, albeit reluctantly, the Commons Amendment.
§ On Question, Motion agreed to
§ Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
§ On Question, Motion agreed to