§ 6.53 p.m.
§ LORD SOMERS rose to ask Her Majesty's Government whether they are aware of the abuses against individual freedom which frequently occur in the local administration of the Town and Country Planning Acts. The noble Lord said: My Lords, I hope that the way the Question I am asking Her Majesty's Government is set down makes it perfectly clear that I am not questioning the principles of the Town and Country Planning Acts or the town and country planning authorities. There is abundant evidence that they are very necessary. As one looks round the countryside to-day one is only too sorry that they are not a little more effective in preventing the constant desecration of our countryside. But what I am questioning is the method by which the powers vested in these authorities are sometimes administered.
§ One must remember that it is not many years ago that the only method 440 of administering the law was by means of a court of law; and there, of course, one had the opportunity to present one's case before an entirely impartial judge and to defend oneself as best one might. Now, of course, a new form of law has come in: government by bureaucracy. I am not questioning the fact that it has; it is obviously here to stay. But I do think one should remember one or two factors about it. One, of course, is the fact that when one appeals against any judgment made by a local authority the appeal goes not to an impartial judge but to the local authority which has made the judgment; and it is they who will accept your appeal or not. Of course, the obvious result is that they generally do not accept it, because they originally made the order, Therefore, as I say, these powers are very great and I think they are worthy of a little inspection and perhaps a little control, if possible, from the Government.
§ In particular, the Town and Country Planning Act, 1947, has been abused I think, on several occasions. I will try to give your Lordships a few instances. My argument really centres around one particular case, but I shall mention a few others first. There are one or two that I have known of personally. Just after the war I had a small house in Kew. When, later on, I moved to Epsom I had a letter from the man who bought my house saying would I please confirm that the house had a garage, as the town and country planning authorities were requesting him to pull it down. Actually, the position was that the garage had been partly finished; it had a temporary roof, and I think one wall was built of wood rather than of brick. When he bought this house he decided to complete the garage. The planning authorities, not having seen it before in a finished form, made on order that he should pull it down; and in order to preserve it he had to get confirmation from me that the garage was already there, albeit not in a finished form. As it happened, he was allowed to preserve it, with that confirmation. But there was another thing. He had also built a small bicycle shelter against the fence which divided his property from that of his next-door neighbour's. This apparently had projected—if you can believe it, my Lords—two inches above the dividing fence. On those grounds he was ordered by the planning authorities to demolish the 441 entire structure of this bicycle shelter. That was one case.
§ Then there was another case of a certain house which I once thought of buying in Norfolk. This was an old Elizabethan house, which was at the time being used as a farmhouse. There was a moderate-sized farm attached to it as well, and the farmyard was right in front of the house, with a large and very muddy cattle pool right bang in the middle of the entrance to the front door. What had thought of doing was to buy the entire property and to let the farm off to some local farmer and make a separate entrance for him where he could put his cattle sheds and various things, which were actually in the front drive, and re-make the front entrance. I was told by the planning authorities that I could not do that, and the reason they gave was that I should be converting one property into two. What the objection is to converting one property into two, provided that the total remains the same size, I am afraid I cannot see. But that was their decision.
§ Here are some examples of things that have come out in the papers. In the Daily Telegraph of February 2, 1959, was a case of a certain Miss Winifred Heydon, in Warwickshire, supporting herself by keeping a little shop. She had run it for six years, and her sister before her had run it for ten years. Atherstone Rural District Council seized the premises under a slum clearance order. No compensation was paid because the shop was rented under a weekly tenancy. My Lords, is that fair play? Here is another, from the News Chronicle of July 24, 1959: a compulsory purchase order case in which compensation of only £200 was offered for property valued the previous year at £5,000. This case was said in another place to have "shortened a man's life". Mr. Geoffrey Hirst, the Member of Parliament for Shipley, urged the Government to intervene and cited a similar case of a man committing suicide after being paid only £65 by a council for his plot of land at Romford which was worth £800.
§ Here is another, from the Sunday Express. In 1951, Hemel Hempstead Development Corporation took 23 acres from Mr. Reginald Clarke, a farmer, at a compulsory price of £5,000. It left 442 8 acres unused until recently, and then sold them to a builder for £16,000. Yet, when the same builder offered Mr. Clarke £10,000 for a 5-acre field, the Corporation baulked him by placing an order on the land scheduling it for use as an open space and allotments. It may now be purchased compulsorily at a price less than the builder's offer. I have here many other cases of that sort of thing, and it does riot make one feel that the Town and Country Planning Act is being administered fairly.
§ However, I come now to the main case on which I am going to centre. I suppose I should declare a slight interest in this case, in that the owner of the house in question is not only a distant cousin of mine but also happens to be my accountant, he being a chartered accountant by trade. He owns a house in Eccleston Square—which, as your Lordships know, is a residential area. He was originally given permission to use three rooms of that house for office purposes. Of course, it makes no difference to the outside structure, and it causes no nuisance to the neighbours, naturally. He was given that permission some years ago, when he bought the house; but since then, his family has grown up, and what he wants to do is this. If we may call the rooms, for instance, A, B, and C, what he wants to do is to change A into a nursery and revoke the permission for office use on that, and, instead, to take D as an office, so that he will end up by having the same number of rooms for office use, and the same floor space. This application was refused, but it was not refused officially by the committee. I am not sure whether it was refused by a letter from the chairman or by some officials who came to see the house, but, in any case, it was not refused officially by the committee.
§ A second application was made, and again it was refused, but there is no evidence in this case, either, that it went to the committee. There is a reason for this, because Mr. Evans had suspicions that it did not get to the committee, owing to the fact that earlier he had been to County Hall and had seen a number of forms being stamped with a rubber stamp by a girl who was obviously just one of the secretaries there, with the words "Action taken by the Chairman". 443 Those stamps were being put on forms which related to actions taken two or three years before. Therefore, as I say, he began to have grave suspicions as to whether his application had ever got as far as the committee at all. He rather thinks, in fact, that the chairman's personal refusal was ultra vires, which, of course, it would have been. The chairman has not the power, under the London Government Act, to give a refusal on his own: it must be done by the entire committee.
Here, by the way, as I have found it, is Mr. Evans's account, which is worth reading out, of what happened when he visited County Hall on March 15 last:
I attended at Room 313 at the County Hall at approximately 1.30 p.m. on 15th March, 1960, and was received by a gentleman wearing a beard, sitting at the far corner of the room, by the window. At a table near to him, facing the centre of the room, with her back to the wall, was a girl dressed in yellow … I was given a chair between these two people and the gentleman with the beard left the room after taking a note of my request to see the Minutes. I therefore had an opportunity to observe the nature of the work which the woman clerk of the L.C.C. was doing. She was stamping forms which appeared to be Planning Consents and Planning Refusals with a rubber stamp entitled 'Presented to the Town Planning Committee 12th January, 1959'. The forms stamped were in respect of Action taken by the Vice Chairman (Panel)' dated 1st January, 1959, and 'Action taken by the Chairman' on various dates, including 10th December, 1958, and 15th December, 1958. … My observations lasted over a period of fifteen to twenty minutes while I was made to wait, I thought for the file, but as subsequently transpired, for the solicitor; the majority of the papers related to Action taken by the Chairman'.
The question is, then: was the refusal ultra vires? If the chairman was acting on his own, it was.
Later, Mr. Evans had a most ludicrous interview with two officials who came to his house to inspect it and to see what he wanted. They were in a complete impasse, apparently, because there is no official designation of a room which is used partly for office work and partly for residential purposes. Of course, as he lives in his own house, those rooms, when they are not in use as offices, are used for residential purposes. And, because they could find no term to describe these rooms, they could not give permission. They could not define "mixed use", as they described it
Mr. Evans's next step was to take his case to the Southwark County Court, where he was heard on March 14 before his Honour Judge Wingate-Saul. I should like to quote from a summing-up of the case:
Both houses, 8 and 9"—
he had bought the two houses, and they are inter-communicating, so they really constitute one hereditament—
were bought in the knowledge that the London County Council had made the following planning decision, No. E.S.1930 of 10th October, 1945: Town and Country Planning Acts, 1932 and 1943:
§ 'Town and Country Planning (General Interim Development) Order, 1945; 7 and 8, Eccleston Square, Westminster.
§ 'Consideration has been given to your application of 2nd August, 1945, for permission to unite 7 and 8, Eccleston Square, Westminster, and convert the premises into residential flats and maisonettes as shown on the deposited plans No. 1370.
§ 'With reference thereto, I am directed to inform you that the Council, in pursuance of its powers under the above-mentioned order, hereby refuses permission in respect of the application for the reasons that the planning is considered unsatisfactory, and the density is excessive as regards both flats and population.
§ 'In view of the above decision, it is not proposed at this stage, to deal with the application under the London Building Acts as regards uniting and means of escape'."
§ "From other planning decisions it can be deduced that this policy was changed some time during the summer of 1956 or thereabouts. This was done without notification of residents and leaseholders. The objections which the L.C.C. made in 1945 have proved valid, and there is now an excessive density of parked cars without garages, aggravated by L.C.C. planning permission for mews' garages to be converted into residential accommodation. It might be added that bachelor flats cater exclusively for the better-to-do professional and business classes as weekday accommodation and provide little or no contribution for the housing of balanced families.
§ "The principle that special circumstances exist on the sole grounds that the use is not detrimental to the amenities of a residential square is clearly set out in the Minister's decision on No. 58, Eccleston Square, referred to above.
§ "The fact that there is no use class to cover a professional residence—i.e., a house where a professional man can live and work, is completely and utterly relevant to the case. The absence of such use class means that the use requirement is not provided for by the planners and indeed is rigidly excluded from all zones, residential, office and others"—
May I just point out here that that is an important point, because nowadays,
when we are all grumbling about commuters and when there is such difficulty with the density of traffic in getting from ones residence to one's place of work, surely a residential office such as this is an extremely desirable thing. His Honour said that he held that the law in Rex v. Hendon Rural District Council was still good law. He said:
In the absence of authority to the contrary. I should have thought that in dealing with applications for permission under Section 14 of the Town and Country Planning Act, 1947, a local planning authority was acting administratively- and not judicially. My attention has, however, been called to a decision of the Divisional Court in The King v. Hendon Rural District Council in 1933, 2 King's Bench, at page 696. That was a case dealing with the granting of permission to carry out development, although it arose out of the Town Planning Act, 1925, and not out of the Act of 1947.
Briefly, the facts of that case were that the Hendon Rural District Council had passed a resolution for preparation of a town planning scheme and the Minister made an Interim Development Order under Section 4 of the Town Planning Act, 1925, under which persons could apply to the council for permission to develop pending approval of the scheme by the Minister. The Court there decided that in considering applications for permission, the authority was acting judicially and not administratively.
§ Mr. Evans, suspecting that this matter had never got to the Council at all, applied, as was his right, for permission to see the minutes referring to the refusal. This was refused, not once, but three times. This, I may say, was in direct opposition to Section 173 of the Local Government Act, 1939.
A question was asked in another place by Sir Colin Thornton-Kemsley. The answer, given by Sir Keith Joseph, was entirely unsatisfactory, I regret to say. He skirted the real significance of the matter altogether, and so Sir Colin raised a debate on the Adjournment on July 5. In that debate, he said [OFFICIAL REPORT, Commons, Vol. 626 (No. 140), cols. 412–3]:
I suggest that this is a very happy arrangement, in fact it is a model arrangement. Here is a family house where the head of the house is working and making no demand upon the public transport services. He is not making a daily journey to his office by car, he is not a commuter and he and his partner are living on the premises. I think it is an ideal arrangement and one which the planners ought to welcome.
In his reply, Sir Keith Joseph said that Mr. Evans [col. 417]:
now wants to swop out of these premises into an adjacent one, and says that he will give up his present office user in No. 8. I have absolutely no doubt that he means this, but while he continues to reside in what is a single hereditament it could be very awkward for the planning authority if, in fact, he were to continue to make use, or permit use to be continued, of his existing offices as well as the new one.
That is entirely different from what Mr. Evans is proposing to do. He is not proposing to make use of the existing one as well as the new one, but merely to change one room into another. Sir Keith Joseph went on to say:
The fact really is, however, that since Mr. Evans got permission in 1953, planning policy in London to restrict office user in residential zones has grown a great deal tougher, and it has grown a great deal tougher particularly since 1955. There has been a steadily increasing recognition that we must, in the desperate shortage of residential space, very seriously see that the space is kept for residential use and save from office use as much suitable residential space as is humanly possible.
§ This is a completely invalid argument because the rooms are being used for residential purposes, and both houses, Nos. 8 and 9, are as thickly populated as they could possibly be were they now to be converted into flats. There are as many people in them as could possibly get into them, because he has no intention of expanding; he is merely changing one room to another. I cannot say that Sir Colin got a great deal of satisfaction out of Sir Keith. The final episode was that I went to the Ministry myself. I saw a junior official there, and I regret to say that he also skirted round the question and made some entirely irrelevant objections. And I came away with the feeling that one would never get anywhere.
§ As to some other points, Mr. Evans has reason to believe that a good many of these full-time London County Council professional officials have private funds. Whether he has actual proof of that I am not certain, but if so, surely it is highly irregular. Another thing is that when he went, I think the second and third times, to apply for access to the minutes he was accompanied by the police—at least, I think he 'was accompanied by the police on one occasion. He has been in touch with the police about this case, but they say, apparently, that 'they cannot help him because it is a matter of administrative law and not of judicial law. Surely, that again does not give very much protection to the individual. When I speak of 447 "protection to the individual", I must remind your Lordships that the public, to whom these authorities are supposed to be responsible, consist, after all, of a large number of individuals, and no one of them is less worthy of protection than another. I hope that my noble friend will be able to reply that this case will be thoroughly examined and the truth revealed. If, however, he is unable to do that—and I quite realise that, sitting where he does, he cannot always say exactly what his own opinions are—I shall be forced to the regrettable conclusion that the Government are not concerned that individual rights should be overridden by bureaucratic autonomy.
§ 7.23 p.m.
My Lords, I think I had better start to answer this very long question by referring to the Question on the Order Paper, and saying straight away that, certainly, taking the terms in which the noble Lord's Question is couched, the Government are not aware of frequent occurrences ofabuses against individual freedom … in the local administration of the Town and Country Planning Acts.Nor, indeed, are they aware of less frequent occurrences. The noble Lord introduced his Question by making some general remarks about appeal procedure. I wonder whether he realises that appeals are not made to the local authority but to the Minister. I wonder also whether the noble Lord realises that about one-third of all appeals succeed. I find it difficult to know what I should do, standing at this Box here and now, about this long list of cases, some of them personal to the noble Lord and some that he got out of the newspapers, of which he has given me no notice. I will, however, study the OFFICIAL REPORT and see if there is anything I can do to help the noble Lord to put his mind at rest.
The noble Lord was good enough to give me notice that he would raise the case of Mr. Ancrum Evans and his planning consents in Eccleston Square, and have looked up that case. I think that if I illustrate the general issues by reference to this particular case of Mr. Ancrum Evans it may help to set the noble Lord's mind at rest on a number of things. I think it will Show that in 448 that case—a case in which the noble Lord thinks the liberty of the subject was gravely prejudiced and that the local authorities worked badly—the machinery, in fact, worked well. I should like to try to deal with it on that basis.
Local planning authorities are dealing with a very large number of planning applications, and their work in controlling and guiding development of all kinds is a necessary public service. With the limited amount of land in this country and the rate of development of all kinds, there would indeed be much more to complain about if we did not have that sort of machinery. I think that the noble Lord conceded that, and what he is concerned with is that it should work well. With such a vast amount of work daily passing between individuals and public authorities, it would be surprising if no complaints were ever made, more particularly as every decision refusing permission is bound to upset somebody. The man would not ask for it if he did not think he was justified in asking, and when it has to be refused he is upset.
Probably the reason why there are comparatively so few complaints—and there are comparatively few—is that we do have a system of government, local and central, which operates "without fear or favour" and within a framework which provides for the individual's case to be most fully heard. Mr. Ancrum Evans's case is an example of the way in which the individual's wishes have to give way to public policy, but it also illustrates the opportunities which the individual has for a very full and impartial hearing, with freedom to see the inspector's report on the hearing (in line with the recommendations of the Franks Committee) when his application is refused—and in this case the application was refused by the London County Council.
I will take your Lordships through these points quite quickly because they have been given in great detail. I think they will tend to show that there are two sides to all these questions. Mr. Evans took the leases of Nos. 8 and 9 Eccleston Square in 1951, and in 1953 he was given permission for the use of two ground floor rooms in No. 8 for use as offices. The permission was to operate for the benefit of Mr. Evans only while he was 449 residing on the premises. In addition to this permission to use two rooms in No. 8, Mr. Evans had permission to use a studio on the first floor of a mews house at the rear. That was in 1953. In 1955 the Development Plan for London was approved, and by then a dangerous tendency had been clearly seen, and steps were taken to meet it. That tendency was for the amount of office accommodation in London to grow and at the same time for the residential accommodation to diminish. Both those factors added to the congestion in London: because more people were working there, fewer people were living there and more had to go in and out every day.
So in the London Development Plan one of the provisions designed to meet this situation states quite categorically that:Throughout the county permission (temporary or permanent) will not, except in very special circumstances, be given for a change from residential use of any residential building which can still be used, with or without adaptation, for residential purposes of any kind.The operative words there are "very special circumstances". Had that provision been in force when Mr. Evans applied for permission in 1953 it is quite likely that he would have met with a refusal there and then. That provision was, however, in existence in 1958, when he applied for permission to use the whole of the ground floor of both No. 8 and No. 9 Eccleston Square and the basement of No. 9, for office purposes. It is true that Mr. Evans said he was relinquishing the authorised office use in the mews at the back and at the inquiry into his appeal, when he appealed to the Minister after a refusal by the London County Council, he said that if need be he would leave the basement of No. 9 unused. But the application had to be considered in the light of the overall policy as it then was, and there was no doubt that an office use was being brought into a house, No. 9 which could be fully used for residential purposes.
The noble Lord raised a number of matters about these planning refusals of the London County Council. I am advised that the decision to refuse permission was taken by an authorised member of the Town Planning Committee, with two other members of the Committee, when the Council was in recess. The Council's Standing Orders (made by vir- 450 tue of the power contained in Section 68 of the London Government Act, 1939) provide for this arrangement, and it is a practical necessity, because the Council are dealing with about 200 planning applications per week. This delegation was perfectly in order. I thought I ought to put the noble Lord's mind at rest about this.
The noble Lord also referred to some court cases. It is difficult to discuss such a thing in your Lordships' House, but I will say this. I am advised that Mr. Evans sued the London County Council for damages at Southwark County Court, and judgment was given against him with costs. I think it would not be proper to discuss that judgment in this place now, but as the question was raised I thought I should say what had happened there.
Play can be made with the figures as to whether there would have been a net gain or a net loss in terms of square footage in Mr. Evans's house. But one of the arguments put forward was that Mr. Evans's practice was a growing one, and that there was now a staff of nine, including Mr. Evans and his partner. It was said, when these applications were put in, that additional office space was required. Mr. Evans, I admit, has since argued his case on the footing that there would be no net loss of residential accommodation. He has been told that it is open to him to make another planning application, and that: if he did so it would receive the same careful consideration as his earlier one. But both the planning authority and the Minister of Housing and Local Government (if the matter again came to him on appeal) would have to consider the application in the light of the policy of the London Development Plan, a policy which is of the greatest importance in preserving a balance of employment and living accommodation in this capital city.
The noble Lord can be assured that Mr. Evans's case has had the most careful consideration throughout. First, the London County Council dealt with it, and I would say that they, when they dealt with it and rejected his application, had consulted and were supported by the Westminster City Council. If it is any comfort to the noble Lord, those two Councils have a different political com- 451 plexion. Then the case was heard by one of the Minister's inspectors, and he was quite clear in his recommendation that the appeal should be dismissed. Then the case was considered by my right honourable friend the Minister of Housing and Local Government, and he decided that the inspector's recommendations should be accepted and upheld.
Since then Mr. Evans has vigorously sought his rights, as he sees them, and although the Minister is functus officio (I believe that is the correct phrase) when he has decided an appeal, he in fact most thoroughly, both personally and through his officials, reviewed the case again and has seen no ground for any other view than the one he took when deciding the appeal. If Mr. Evans really has a fresh proposition to put forward, the way is open to him to do so, as I have already explained. Otherwise, the only thing I can say to the noble Lord, in conclusion, is that this case appears to be, as I said 452 at the beginning, a straight clash between an individual's wishes and public policy. After the most thorough consideration, it has been decided that public policy must come first, and there is nothing in this case which can support an accusation that there has been any "abuse against individual freedom", to quote the noble Lord's words.
I hope that I have been able to help the noble Lord in this matter. In the terms of his Question and in the way that it has been put to me, I have been able to answer in some detail on the case of Mr. Evans, because I was given notice of it. I hope the noble Lord will be satisfied with what I have been able to say. In the other cases, of which he gave me no notice, I cannot possibly answer them and know what the other side of the question is without looking them up. That I will do, and I will communicate with the noble Lord. I hope that I may be able to satisfy him on those questions also.