§ 4.12 p.m.
§ LORD LUCAS OF CHILWORTH
rose to move to resolve, That an humble Address be presented to Her Majesty, praying that the Town and Country Planning Appeals (Inquiries Procedure) Rules, 1962 (S.I. 1962 No. 1425), dated 9th July, 1962, laid before the House on 13th July, 1962, be annulled. The noble Lord said: My Lords, I beg to move the first Resolution standing in my name upon the Order Paper. I think perhaps a word of explanation is due to your Lordships as to why I have put down a Prayer to annul the Rules which have been laid before your Lordships. It will be within the recollection of your Lordships that in December last, when we debated the Council on Tribunals, I suggested to the then noble and learned Viscount who occupied the Woolsack, and I was supported by the noble Lord, Lord Silkin, that it would be better if the Government would table these new Rules of Procedure in the form of a White Paper, the better to have an uninhibited debate, before a Statutory Instrument was prepared and placed before Parliament, which had to be either annulled or passed but which could not be amended. I think that the Government ware wrong in not acceding to the request made by the noble Lord, Lord Silkin, and myself, because there are various points in these Rules which I think are worthy of amendment. The difficulty of the Negative Resolution procedure is that you have to take the meal and either 907 swallow it or reject it; you cannot amend it.
I would rely upon what the noble and learned Viscount, Lord Kilmuir, said when I pressed this point on December 7. He said—and I am quoting from col. 212 of the OFFICIAL REPORT of December 7, 1961 [Vol. 236]:The noble Lord, Lord Lucas of Chilworth, and the noble Lord, Lord Silkin, ask me again about the submission to Parliament"—of these Rules.I promise that I shall give that the most careful consideration. I should like only to say this: that if one did lay the rules, and there was a prayer and a general opinion in this House that a rule, or rules, was or were not in accordance with fairness or equity, or equally, on the other hand, if the House thought the delays caused were too long, I cannot imagine that any wise Minister—and I hope I may include myself, just for this purpose, in that category—would not look at them again.My Lords, I rest myself upon that statement, because I have no reason to believe the noble and learned Lord who now sits on the Woolsack would not be just as reasonable in this respect as the noble and learned Viscount, Lord Kilmuir, said he would be. Three years have elapsed since statutory provision was made, in 1959, for new Rules to cover administrative inquiries into planning appeals. These Rules are now placed before Parliament. My Lords, they do very little to alter what has been the procedure for these past years, except in one regard and that is in relation to Rule 10. And Rule 10, let me say quite frankly, is a great step forward.
Without going into the whole of past history, your Lordships will remember that during what is now known as the famous chalk-pit case controversy raged upon the admission of new factual evidence after the inquiry had been closed and the inspector's report had been received by the Minister. I remember that the noble Lord, Lord Silkin, played a great part on the debates on that point, and I think it is a great triumph for the Council on Tribunals that they now have persuaded Her Majesty's Government to meet the case, which they do in Rule 10, which I should like to quote. It is now agreed that:(2) Where the Minister—My Lords, that is a substantial move forward, but it does not go far enough. For it does not cover the question of what has become known as the third-party objector. This applies only to the appellant, the planning authority and any Section 37 party.
and by reason thereof is disposed to disagree with a recommendation made by the appointed person, he shall not come to a decision which is at variance with any such recommendation without first notifying the appellant, the local planning authority and any section 37 party who appeared at the inquiry of his disagreement and the reasons for it and affording them an opportunity of making representations in writing within twenty-one days or (if the Minister has received new evidence or taken into consideration any new issue of fact not being a matter of Government policy) of asking within twenty-one days for the reopening of the inquiry.
- (a) differs from the appointed person on a finding of fact, or
- (b)after the close of the inquiry receives any new evidence (including expert opinion on a matter of fact) or takes into consideration any new issue of fact (not being a matter of Government policy)which was not raised at the inquiry,
Perhaps I might explain, if it is necessary to explain it, what is meant by the "Section 37 party". According to Section 37 of the Town and Country Planning Act, it is a party or person who has a legal interest in the land to which the application applies. Other than that, there is no difference in any of these Rules from what has become the accepted practice, and nothing As done to improve the position of the third party—that is, the neighbour who lives next door—who may have the value of his property, or his amenity, sadly interfered with by reason of a planning consent. I intend to refer later on to the position of the third party, but I should like to mention one or two other Rules in the Statutory Instrument, which I think are a little too narrow and should be extended.
I refer, first of all, my Lords, to Rule 2, which defines to whom these Rules shall apply. I would submit to the noble and learned Lord on the Woolsack that they have been drawn far too narrowly. They do not cover the multitude of inquiries which have to be considered. The noble and learned Lord may say to me in his reply that there will be many other Rules made later; but there is one set of applications that is not covered by these Rules, and that is the one called in by the Minister. Under Section 15 of the Town 909 and Country Planning Act, 1947, either as a result of a general Order, as in the case of a mineral working, or by a specific direction, as in the case of an individual application, the Minister has the power to call in an application for planning permission. That is done in rather serious cases, but that application is not subject to these Rules, as I read them. I would cite the case of the North Oxfordshire ironstone working inquiry. That was an application for working of minerals which was called in by the Minister. None of these Rules applies to a case like that, yet they are very serious and have serious repercussions upon the rights of third parties, and I would therefore suggest that third parties should be included.
If we look at Rule 4 we see that the local planning authority is called upon to inform the Minister of all representations made to them in connection with these appeals. Rule 4 says:The local planning authority, on being notified of the Minister's intention to proceed with the consideration of an appeal … shall forthwith inform the Minister and the appellant in writing of the names and addresses of all personswho are legally entitled to make representations. I suggest that the Minister should be informed of all the parties, whether they are legally entitled to make representations or merely third parties who have no legal entitlement.
Rule 5 sets out all the persons entitled to appear at the inquiry. They are the appellant, the local planning authority and a large number of other people. But no provision is made for local, or even national, amenity societies to be called to give evidence. I think that is a mistake. We have the Society for the Preservation of Rural England, and many other amenity societies, but they have no standing under this Rule. One of the strange omissions from the list, incidentally, is parish councils. I understand that it has been the desire of the Minister of Housing and Local Government that parish councils should be brought into this planning machinery to a greater degree than heretofore. I would have suggested that they could be included in the list of rightful people to appear before an inquiry.
Then in Rules 6 and 7, my Lords, there is a right to request attendance of representatives of interested Government 910 Departments. I would suggest that this right should not be confined to Departments the applicant wants to appear. Why should not the right to request the attendance at an inquiry of a representative of an interested Government Department be extended to the local planning authority, to Section 37 parties—that is, those with legal rights—and, also, to third parties who are appearing before the inquiry as vitally interested parties? Because there are occasions, as the noble and learned Lord the Lord Chancellor will know, where a local planning authority has been directed by the Minister of Housing and Local Government to grant an application. There will be no appeal, because the appellant has, if I may use the expression, "thrown his hand in". But the local planning authority may very much disagree with the grounds upon which the Minister has given that direction. Why should not all the other interested parties at the inquiry have the right to request the attendance of a representative of the interested Ministry?
There is another case, my Lords, and I will grant that it arises only on what are known as called-in applications. One of the difficulties when an application is called in is to see that the applicant gives to the local planning authority the fullest possible information as to the grounds upon which an application is made. Perhaps I could best illustrate this by again drawing your Lordships' attention to the North Oxfordshire ironstone inquiry, where the appellants were the steel manufacturers, Richard Thomas and Baldwins, who flatly refused to divulge any of the information on which they based their application for planning permission to win iron ore in North Oxfordshire, and the planning authority could not get that information. At the inquiry, as the noble and learned Lord will remember, their case was: "We do not intend to bring any evidence, and we are not going to call any witnesses". Fortunately, they lost their application. But, in my view, if we are going to bring in these Rules for inquiries, or any other Rules Which may be made later on, there must be a duty upon the applicant to state the details of his application, and the reason for it, before the inquiry is opened.
I now come to what is perhaps the main point at issue. This has been 911 dealt with in the Report put forward by the Council on Tribunals as to the unenviable position of third parties. The third party, the neighbour next door, can have an even more vital interest than anybody else in whether an application is granted for the development of the land that adjoins his property, but at the present moment he is not entitled to be informed of the application. If he is the only objector—'and there may be a case where he is the only objector—he need not know anything about it until suddenly, next door to his property, something arises which can affect the value of his property and his amenities to a major extent. He has no right to ask the Minister to call the application in for the purpose of having an inquiry. The local planning authorities have no legal obligation placed upon them to tell him there is going to be any development; and, if he makes inquiries, and if he makes application for the Minister to call the application in through the medium of the local planning authority, the local planning authority can ignore his request.
The Council on Tribunals have realised all this, and they have produced what I think is an admirable Report. They say in the second paragraph:The present position is that, when a person appeals to the Minister against the refusal of planning permission and a public inquiry is held, all persons with a genuine interest in the application, for example, neighbours who fear that their amenities may be affected, are allowed to appear and take part in the inquiry. But this is by administrative concession.However, before they can appear at the inquiry, they must know that the inquiry is going to be held, and at present they have no right to request that they should be informed. If they appear, they have found out: but they may not be able to find out.
The Report of the Council on Tribunals says in its third paragraph:It cannot be right for some of those who took part in the inquiry, but not others, to be consulted on these occasions.Those are the occasions when the Minister is now obliged to listen to objections if he is going to reverse his inspector's decision, and also to re-open the inquiry if he desires so to do. They go on to say:It is generally agreed that the present practice of letting in third parties is right, 912 both in justice to themselves and in order to enable the Minister to take the best possible decision with all local opinion before him.They should be allowed to have this right.
Now, my Lords, the Council have come up against a legal snag, and they admit it. The planning laws of this country do not confer any rights whatsoever on third parties, and the Council on Tribunals have frankly admitted that. They say:In view of these legal objections the Council have not felt able to insist on rights in favour of third parities being inserted in the rules.Then they go on to say:Nevertheless the Council are of opinion that third parties who are genuinely affected by planning proposals ought in practice to be given the rights which they would have had if they had been brought within the scope of the rules. The Council therefore recommend that the rules in their present form should be accompanied by an assurance given in Parliament that third parties will in practice be given the benefit of them. The Council consider that this should not be limited to third parties whose legal rights are infringed, but should be extended to third parties who have appeared at the inquiry and by reason of loss of amenity or depreciation of the value of their property or on other similar grounds may fairly be regarded, in the ordinary use of language, as affected by the proposals in question.I am not quite clear—perhaps the noble and learned Lord will tell me—whether, when the Council on Tribunals say that these third parties should be brought within the scope of the Rules, that means information, notification, to all those who have a genuine interest, and not only to those who have heard of it by chance and who appear at the inquiry.
I do not know whether the noble Lord, Lord Silkin, who is perhaps one of our greatest authorities on the law set down in the Planning Acts, will agree with me. I think he would agree with me that the concession granted to third parties to be heard at these inquiries should stand. I think he would also agree that there should be some system of notification to genuinely interested third parties that an application is going to be made. I think he would further agree that a third party who applies to the Minister to call in an application for the purpose of holding an inquiry should be able to go direct to the Minister, so that the Minister has the duty and the 913 right to say whether that third party's application for a call in is frivolous or whether it is genuine, and so that that application should not go by default before the local planning authority.
I do not know whether or not the noble Lord, Lord Silkin, would agree with The Times but, my Lords, in the leading article in The Times on Tuesday, July 17, it says this. Even if the noble and learned Lord is this afternoon going, on behalf of the Government, to accept the recommendation of the Council on Tribunals set out in their Report, this is what The Times says:This cannot be said to dispose of the difficulty. An assurance of the kind suggested would have no force in a court of law. Yet the ultimate safeguard that the procedures laid down will be properly complied with consists in judicial review by the High Court. The only people who are entitled to make application to the High Court are those whom the Act speaks of as 'aggrieved', and it has been held that 'persons aggrieved' do not include third parties, however prejudicial to them a planning decision may be.Really, that means, in plain language, that an alteration in the planning law is contemplated or advocated—I do not know whether the noble Lord, Lord Silkin, would agree with that.
But, my Lords, all this, in my view, raises a very serious issue. It may well be that the Planning Acts of 1947 are outmoded. Maybe public opinion, in the course of time, has made their review imperative. But in a debate not very long ago—as a matter of fact, in July, 1961—on this special point of where administrative law comes in conflict with the rights of the citizen, I quoted some words which were uttered by the late Lord Birkett. I am now quoting from col. 154 of the OFFICIAL REPORT for July 12, 1961 [Vol. 233]. The noble and learned Lord said that the ordinary citizen can rest assured thatno one will do him wrong, because in the ultimate there are English judges who will see that right is done by him.On this question of third parties, ordinary citizens who have been aggrieved and may have had their property and their amenities ruined have no recourse to the law of this country. Would it be possible for the noble and learned Lord, Lord Dilhorne, on behalf of the Government, to embrace within these Rules the recommendations of the Council on Tribunals, with the proposal that they do 914 not confer any other rights? I think he will agree with me that the case which the Council make out for a better safeguard of the rights of third parties is overwhelming. My Lords, I beg to move.
§ Moved to resolve, That an humble Address be presented to Her Majesty, praying that the Town and Country Planning Appeals (Inquiries Procedure) Rules, 1962 (SI, 1962 No. 1425), dated 9th July 1962, laid before the House on 13th July 1962, be annulled.—(Lord Lucas of Chilworth.)
§ 4.43 p.m.
§ LORD SILKIN
My Lords, I know that the House will greatly appreciate the immense interest and trouble which the noble Lord, Lord Lucas of Chilworth, takes in dealing with these very difficult questions about inquiries and tribunals. Particularly are we greatly indebted to him for enabling us to have a discussion on these new Rules this afternoon. He has had (and I have joined with him on many occasions) the opportunity of dealing with defects, as he felt them, in the procedure of public inquiries, and I am sure that nobody in this House will grudge the time we are taking this afternoon in once more having a discussion on the nature and the details of the machinery for public inquiries.
I think that in forming a proper judgment on the machinery of inquiries we have to clear our minds as to what is the purpose of these inquiries. The two Orders which form the subject of Resolutions on the Paper to-day deal with the machinery for inquiries into compulsory purchase by local authorities and others, and for appeals against decisions of local authorities. I think that in both cases we have to consider what is the intrinsic purpose of these inquiries. Are they pieces of legal machinery which have to be conducted in accordance with all the rules of legal evidence, and which have to be adjudicated upon entirely upon the facts and the weight of the evidence? Or are they pieces of administration, part of the administration of town planning in this country, which are designed to ensure that the citizen is fairly treated if his land is compulsorily acquired, or if he desires to develop his land, subject always to the national policy and the responsibility of the local authority or the Minister concerned? In my view, 915 the noble Lord, Lord Lucas of Chilworth, has tended to look on these inquiries as an adjudication on a legal basis, rather than as part of the administration of this country.
The Franks Committee considered this question very carefully, and in paragraphs 262 and 263 onwards of their Report they set out the case for the two points of view. They said:Two strongly opposed views may be held about these procedures. They may be termed the 'administrative' and the 'judicial' views, and we state them, for convenience and simplicity …".I think that the conclusion they reached was somewhat inconclusive, but my own personal view is that these inquiries are definitely part of the administration of the Town and Country Planning Acts, or of the other Acts under which compulsory purchase takes place. The Minister and the local authorities have a duty imposed upon them by Acts of Parliament to carry out certain policies. They have to do so in accordance with the policy of the Government, or of the local authority, which has to act within the scope of Government policy. But they have to do it in such a way as not to inflict hardship or damage upon the individual; and it is for this reason that the citizen is given the right of making representations. The whole structure of appeals is based upon the right of the citizen to make representations, so that the Minister, in the last resort—the Minister on appeal—may take account of these representations and, according to the weight of the representations, make his decision either to amend the policy, or to amend his own decision (where that is concerned) or that of the local authority.
It has been stated, and I think correctly, that if the Minister could hear personally all these representations, that would be the ideal state of affairs. Obviously, no Minister can bear 20,000 representations a year—I think that that is, roughly, the number he receives every year. Therefore, a representative is appointed, an inspector, to attend locally and hear the case that is put forward by those who are dissatisfied either with a compulsory purchase order or with a planning decision of the local authority—I take it that we are dealing with both Rules together. I think that it is 916 important to get our minds clear on the function of the inspector. He is not there as a judge, to decide the issue. He is there to hear what are the objections, to hear the evidence, to weigh it up and report to the Minister the various points that have been raised, both for and against the decision of the local authority or the proposal put forward by the Minister himself. The inspector may or may not make his own recommendation; he may assess the weight of evidence or he may not. But it is for the Minister to decide, in accordance with his policy and in accordance with the evidence that has been put before him.
My Lords, I have dealt at some length with what I consider to be the nature and purpose of these inquiries because I think that they have relevance to the case the noble Lord has put forward this afternoon. If we regard these inquiries as in the nature of judicial inquiries, which have to be carried out strictly in accordance with all the rules of evidence, so that the evidence submitted has to be strictly weighed, then obviously we must have the strictest possible rules, and the noble Lord is probably right in saying that these Rules would require amending in many respects. On the other hand, if we take the view, which I take, and take very strongly, that this is part of an administrative process, in which the citizen is given the right to make representations in case a local authority or the Minister himself may be making a mistake in the carrying out of a policy, which must be one for the Government of the day, then we come to a very different kind of decision.
Even then, it has been suggested that it might be more appropriate for these appeals to be dealt with through the courts. I think that the answer is quite clear. The courts could not possibly deal with the enormous number of cases that have to be dealt with. It was thought, too, that this procedure would be simpler and cheaper than the legal procedure of the courts. But as time has gone on we have been finding that the reverse is the case. The public inquiries that take place to-day, especially the more important of them, are certainly no cheaper, and they are no less complicated, than the procedure of the courts. The noble Lord referred to the North Oxfordshire inquiry, but 917 one can come nearer home and take the case, in which I had an indirect interest, of the hotel in Park Lane. This was a case in which the inquiry lasted many days, and the most expensive counsel were employed. They had expert witnesses, at considerable expense, and the whole procedure was just as expensive and as lengthy as if the matter had been a court case.
Furthermore, one of the original justifications for this kind of inquiry was that it would be quicker. In fact, however, to-day if you lodge an appeal it takes probably eight or nine months before there is a hearing; and in difficult cases it may take a similar time before a decision is given. I say these things because it seems to me that this whole question of public inquiries has got out of hand: they are far different in character from what was originally contemplated. I should like to get back to something very much simpler than these Rules that we have, with so many days for this and so many days for that. I am sure that the noble and learned Lord on the Woolsack, when he reads these Rules, will think that they sound like extracts from the White Paper, with all the regulations that are laid down and the times for delivering pleadings for this, that and the other.
It seems to me, my Lords, that the trend of these inquiries is such that it is becoming more difficult for a citizen who feels aggrieved to go to the tribunal and have his objections considered than it is to go to the courts. May I mention one special reason why this is so? Obviously, in order to do yourself justice, if you are unfortunate enough to have to go to a tribunal, you must have legal advice and employ a solicitor and counsel; and the number of solicitors and counsel qualified to deal with matters of this kind is extremely limited—and, incidentally, they are extremely expensive. Therefore, we are doing the ordinary citizen no justice in so complicating these Rules of Procedure as to make it essential for him to be advised by the most expensive legal personages and involving him in so much delay before a decision is reached.
I am not going to oppose these Rules, but I should like an assurance from the noble and learned Loud on the Woolsack that the Government have no intention of further complicating them, so 918 making it even more difficult for people to conduct their appeals. I should like to see another Inquiry held into the simplification of the Rules, so that people can go before a tribunal to confidence and feel that they can put their own case personally, without having to employ all this legal array of barristers and solicitors. Perhaps I should sum up by saying that I do not like the Rules because they are a further complication and are getting us more and more removed from the spirit we originally had in mind in providing for appeals to the Minister on specific points.
On the question of third parties, I agree with the noble Lord, Lord Lucas of Chilworth, that the position of third parties is somewhat unsatisfactory. I think he is quite right in saying that one may discover too late that certain developments are taking place which may seriously affect one's personal amenities. I have heard (and this case is, I think, fairly well-known) of permission being given to an individual to build two houses in some back land. These houses were behind the house of a person who had gone to live in the area for privacy and for the beauty of the views from his garden, and these two houses were going to shut out these views entirely. It may have been right or wrong for the local authority to give planning permission for these two houses to toe built; but, to my mind, it cannot be right that the person whose views are to be so seriously interfered with should not know about it and have the opportunity of making representations. So I think the provision in the Town Planning Acts Which gives a right to people to make representations ought to be Widened. I have no doubt about that; indeed, I believe I said so at the time when the legislation was being brought before this House. I do not ask the noble and learned Lord on the Woolsack to commit himself this afternoon to giving a decision on a matter, which I suppose is not within his personal jurisdiction, but I hope he will ask his colleagues to give serious consideration to this question.
I could multiply the instances given of cases where people's interests have been very badly affected without their knowing about it beforehand. But when they do know, at present a certain 919 limited class have the right to make representations to the local authority. The local authority, presumably, study these representations and eventually give their decision. But one has no assurance that they study the representations even from those persons who have a right to make them. And if you increase the number of persons who can make representations, there is even less assurance that the representations will be studied by the local authority. The local authority are under no obligation to inform those who have made representations of the result of their consideration, if any. Obviously, therefore, such persons have not necessarily any knowledge of the decision; and certainly they have no right to appeal.
Nor, indeed, would I give them a right to appeal, because I am not desirous of multiplying this sort of case. But of course they ought to have a right to appear and make representations on the appeal if there is an appeal. Normally, people who object to a particular piece of development will have no grievance if the application for planning approval is not granted; and if it is granted, they have no right of appeal and the matter is at an end, anyway. But if they desire to appear at an appeal—for instance, if they should want to appear and support the local authority in refusing an application—they will not necessarily have been informed, even though they are people who have a right to make representations.
But then the noble Lord, Lord Lucas of Chilworth, wants to go further and say that, first of all, third parties who are affected should have a right to appear; and secondly, that they should have all the rights of the appellant himself: that is to say, that if they think the Minister has gone beyond the evidence, or has heard new evidence without giving the appellant the right to consider it, then they should, like the appellant himself, have the right to go to the courts.
§ LORD LUCAS OF CHILWORTH
My Lords, the noble Lord will forgive me for interrupting, but I do not think 1 made myself clear. I said that they should have, as, indeed, I assume is the purport of the Report of the Council 920 on Tribunals, all the rights of the appellant up to going to court.
§ LORD SILKIN
I may have been expressing myself badly, but that is exactly what I thought I was saying was the view of the noble Lord. I was about to say that I do not agree with that view. I say that, not because it is not in the interests of abstract justice. Third parties may (be affected just as much as the appellant—that we agree—and if the Minister has arrived at the decision wrongly, by wrongly admitting evidence without giving the appellant the opportunity of considering the matter, then, in theory, I would agree that they should have the same rights. But, again, I think it becomes completely unwieldy. You may have 50 objectors at an inquiry, and if yon are going to give every one of those 50 a possible right to go to the courts, first, you are going to delay indefinitely the final decision, which must be bad for planning—.there ought to be finality within a reasonable time; secondly, it is going to add enormously to the cost; and finally, it will add to the complexity of the whole thing. While I would support their having the right to go to the hearing and to put their case, I would not (perhaps illogically) support their having the right to go to the courts if the decision of the Minister is open (to criticism.
I would summarise what I have said by saying, first, that I very much deplore the increasing complexity, expense and delay that our desire to do justice in the strictest possible way to the appellants at public inquiries is bringing about. I think it is due to a misconception of the nature of the inquiry and to the belief that these are legal inquiries, whereas I think they are administrative. I hope not only that we shall not extend this process of trying to emulate the High Court in its procedure at these public inquiries, but that we shall do everything we can to simplify them.
Finally, as regards their purpose, I feel that we ought to do far more for persons who may be affected, if we can define them. It is difficult to say what degree of interest a person should have to justify his being given a right to appear at a tribunal—and there are a lot of "nosey parkers" about in this world who would welcome any opportunity of poking their noises into other people's business, and 921 possibly going to the courts as well if they were not satisfied. Nevertheless, if we can reasonably limit the class of person who is likely to be affected by planning decisions, and give him the right to make representations before a decision is made by the local authority and on appeal, but without a right of going to the courts, I should welcome that. I should like once more to thank the noble Lord, Lord Lucas of Chilworth, quite sincerely, for giving us the opportunity of ventilating what is perhaps not a very exciting subject to ventilate, but one which is of the greatest importance and may in due course affect every citizen in this country.
§ 5.10 p.m.
§ THE LORD CHANCELLOR
My Lords, the noble Lord who has just sat down has covered in the course of his speech a somewhat wider field than that covered by the Regulations which are the subject of the Motion. I listened with the greatest interest to what he had to say, and I would agree with him that some inquiries, certainly, are becoming more complex. They last longer and, indeed, some of them are more expensive. The reason for that, of course, is that some of these inquiries differ widely in magnitude and may cover very large projects indeed. As the noble Lord knows, it is absolutely optional as to whether solicitors and counsel are employed; and, of course, the fact that they are, perhaps, more frequently employed than they used to be is an indication of the importance attached to the matters under inquiry by those primary concerned therewith.
My Lords, I am glad that the noble Lord, Lord Lucas of Chilworth, has put down this Motion to annul these Rules, because it gives us a useful opportunity of considering them, as I am sure we ought to do, against the background of the Report which the Council on Tribunals recently submitted to my predecessor on the position of third parties at planning appeal inquiries. These rules deal with matters of considerable complexity, and I fear it really is not possible to deal with them shortly. I ask the House to bear with me, for I fear that in dealing with them as shortly as I can, my speech must necessarily be somewhat long.
The Lord Chancellor has power, by virtue of Section 7A, which was in 1959 922 added to the Tribunals and Inquiries Act, 1958, to make rules of procedure for all classes of statutory inquiry held by or on behalf of a Minister. This power, the House will observe, covers a very wide field, and it is necessary that one should proceed by stages. My noble and learned friend Lord Kilmuir decided—and I am sure that your Lordships will agree that he was right—that the best thing to do was to make Rules of Procedure in the first instance for the types of inquiry which are of most frequent occurrence.
The two sets of Rules which are now before your Lordships therefore deal with inquiries into proposals for the compulsory acquisition of land by local authorities, and with appeals to the Minister of Housing and Local Government under Section 16 of the Town and Country Planning Act, 1947. Between them these two categories cover what is numerically by far the greater part of the field.
The noble Lord, Lord Lucas of Chilworth, asked me why we had not also dealt with inquiries into what are popularly known as "called-in" applications under Section 15 of the Town and Country Planning Act, 1947. He drew attention to the fact, in passing, that several of the Rules did not apply, or were not intended to apply, to these "called-in" cases because these are cases in which the Minister has directed that a particular application for planning permission or a particular class of application should be referred to him direct for decision. These are the two categories. First, the power to call in applications is used primarily in cases where important planning issues arise which are of more than local significance, or where the issues, although local, are of exceptional importance. Secondly, and most frequently, it is used in cases where the proposed development would conflict with the provisions of the development plan.
The general responsibility, as the noble Lord knows, for planning control is, of course, vested in local planning authorities, and the Minister exercises his power under Section 15 of the Act of 1947 to call in applications for direct decision by himself as sparingly as possible. There are only about 200 inquiries a year in this type of case, while 923 inquiries on appeals from local planning authorities are running at the rate of about 5,000 a year. So that your Lordships will see, I think, that it was obviously right to deal with the ordinary planning appeals first.
If, however, Parliament approves the Rules which are now before it, I hope that these will serve as a model for the Rules of Procedure for other types of inquiry, and I see no reason why it should take as long to produce further sets of Rules as it has taken to prepare the present ones. These have necessitated the consideration by the Council on Tribunals, as well as by the various Ministers concerned, of difficult questions of principle which have inevitably taken a long time to settle. Now that this has been done, I hope that it will be possible for us to make rather quicker progress with the other sets of Rules which will be needed. That is my explanation to the noble Lord of the reason why these Rules deliberately do not deal with called-in cases; and it is a deliberate omission.
My Lords, there were two matters to which the Council on Tribunals gave particular attention, in connection with the Rules which are now before the House and which formed the subject of Reports by the Council to my predecessor. The first point was, of course, the question of the procedure to be followed where the Minister rejects the recommendations made by the person holding the inquiry. Your Lordships will remember that this was a matter to which the Council on Tribunals gave full consideration as a result of what had happened in the Chalk-pit case, and the Council's views were set out in the Report which they presented to Lord Kilmuir last March. In effect, what the Council said was that where the Minister differs from his inspector on a finding of fact he must give the parties an opportunity of making representations in writing before he comes to any final decision, and where he receives new evidence after the inquiry, including expert advice, or takes any new issue into consideration, he must reopen the inquiry if any of the parties ask him to do so.
The Government, as Lord Kilmuir told your Lordships, fully accept the justice of these recommendations made by the Council and effect is given to 924 them by the Rules which are now before the House in one case, Rule 10, to which the noble Lord, Lord Lucas of Chilworth, referred, and which I gather he approved; and in the other case, Rule 9.
Your Lordships will see that the relevant Rules in each case refer to "expert opinion on a matter of fact". This is deliberately an echo of the words used by the Franks Committee in paragraph 350 of their Report. Your Lordships may remember that what the Committee said was:We recommend that the Minister should be under a statutory obligation to submit to the parties concerned, for their observations, any factual evidence, whether from his own or another Department or from an outside source, which he obtains after the inquiry. In the definition of 'factual evidence' for the purposes of this recommendation we include expert opinion on matters of fact but not expert assistance in the evaluation of technical evidence given at the inquiry.In other words, the Franks Committee drew a distinction between factual evidence which included expert evidence received by the Minister after the inquiry, whether from Government officials or any other source, on the one hand, and the ordinary advice which a Minister gets from his officials to assist him in reaching his decision.
The Committee thought that information falling into the first category should be disclosed, while that falling into the second ought not to be disclosed, and this distinction was accepted by the Council on Tribunals. I could illustrate that by giving an example of how it would work if the Chalk-pit case came forward now, and perhaps it might be of some interest to your Lordships if I were to do so.
The Minister obtained advice from the alkali inspectors in his Department that, in their opinion, there was no likelihood of the working of the chalk-pit giving rise to the blowing about of chalk dust in sufficient quantities to injure the neighbouring land. This amounted to expert opinion on a matter of fact, and if the new Rules had been in operation at the relevant time the Minister would have had to disclose it to the local planning authority and give them an opportunity of asking for the reopening of the inquiry. But he would not have been under any obligation to disclose 925 the advice tendered to him by any of his administrative officials to whom the inspector's report had come in the ordinary way and who might, for instance, have formed the opinion that the conclusion reached by the inspector was not justified by the evidence given at the inquiry.
The distinction may seem to be a fine one, and in some circumstances it may fee a difficult one to make, but it is none the less real and I do not think in the vast majority of cases there will be very much difficulty in practice in applying the new Rule. I am sure the House will recognise the importance, if the business of government is to be properly conducted, of the Minister's being able to obtain advice from his administrative officials in the fullest confidence; and again I should like to make it clear that any new evidence, including expert opinion on matters of fact, will have to be disclosed. I hope that satisfies the noble Lord with regard to that very-important matter.
I now turn to the position of third parties, on which he and the noble Lord, Lord Silkin, touched and on Which the Council on Tribunals have made their latest Report. The Council drew attention to the fact that, under the Town and Country Planning Appeals Rules, the parties who are entitled to appear and be heard at the (inquiry are first, the appellant, secondly, (the local planning authority, and, thirdly, any owner or agricultural tenant who has made representations under Section 37 of the Town and Country Planning Act, 1959—what the Rules and the noble Lord describe as a "Section 37 party". AM these parties have legal rights conferred upon them by Statute; and this point I desire to emphasise.
The Council wish to ensure, as I understand their Report, that rights similar to those given by the Rules are given to any third party who has a genuine interest in the subject matter of the inquiry; for example, a neighbouring landowner who fears that his amenities may be affected. Perhaps, the classic example of somebody in this position was, of course, Major Buxton and the other neighbouring landowners involved in the Chalk-pit case who thought that their land would be damaged if Heaths' were allowed to work the chalk-pit. Your Lordships will remember that 926 when the Minister decided to allow the appeal in the Chalk-pit case Major Buxton and the other landowners affected applied to the High Court for an order to quash the Minister's decision. Mr. Justice Salmon, however, decided that the landowners were not "persons aggrieved" within the meaning of Section 31 of the Town and Country Planning Act, 1959, because they had no legal rights which had been interfered with by the Minister's action in allowing the appeal. I should like, if I may, to read to your Lordships a passage from the judgment on this particular point. Mr. Justice Salmon said:Before the town and country planning legislation any landowner was free to develop his land as he liked, provided he did not infringe the Common Law. No adjoining owner had any right which he could enforce in the courts in. respect of such development unless he could show that it constituted a nuisance or trespass or the like. The scheme of the town and country planning legislation in my judgment is to restrict development for the benefit of the public at large and not to confer new rights on any individual members of the public, Whether they live close to or far from the proposed development.The legislature made the local planning authority, under the general supervision of the Minister, custodians of the public's rights. It is plain from Section 16 of the Act of 1947 that if a local planning authority grants permission for development there can be no appeal to the Minister of any kind. It is only if the local planning authority refuse permission or grant it on unacceptable terms that the applicant for planning permission may appeal to the Minister. The Act of 1959 has left this position unchanged. It would be strange indeed if the present applicants, who would have had no right of appeal to the Minister from the local planning authority's grant of planning permission, nevertheless have the right to appeal to the courts from the Minister's grant of planning permission.I venture to quote these words to your Lordships because I think there has been, and perhaps still is, widespread misapprehension as to the true position in this matter.
It is perfectly true that it has long been the practice, and will no doubt continue under these Rules to be the practice, for the person holding an inquiry to allow anyone who seems to him to have a genuine interest in the subject matter of the inquiry to appear and put his case. This, however, is merely in order that the Minister should be as fully informed as possible of all relevant considerations. It does not mean that a man's neighbours have been given any 927 new rights to seek to restrict what he may do on his own land, beyond those Which they already possess under the Common Law. As Mr. Justice Salmon said, it is the local planning authority which Parliament has made the custodian of the general interest, and individuals are left to the rights which they have under the Common Law to complain if any activity carried on on their neighbour's land interferes with their reasonable enjoyment of their own land.
If the Rules now before your Lordships were to confer legal rights on third parties, such as the right to appear and be heard at the inquiry and the right to call for a reopening of the inquiry if the Minister has received new evidence, there can, I think, be little doubt that, if any failure to comply with the Rules occurred, third parties would be able to go to the courts as aggrieved persons and seek to have the Minister's action quashed. I understand I have the support of the noble Lord, Lord Silkin, in not being in favour of that course, but that is the effect; and, indeed, this is frankly recognised by some of those who press for an extension of the Rules to cover third parties.
The Times, which the noble Lord, Lord Lucas of Chilworth, quoted, in its recent article said that—Since third parties are, very properly, treated in practice as if their interests deserved to be taken into account in the course of these administrative procedures, it remains an anomaly that they should be denied the one effective means of challenging the legitimacy of the procedures—recourse to the courts.This, my Lords, raises an issue of principle of considerable importance—namely, whether the Town and Country Planning legislation is in fact to be extended in Mr. Justice Salmon's words, so as to confer new rights on individual members of the public, whether they live close to or far from the proposed development.
Some of your Lordships may think that this is desirable, but whether it is or whether it is not, of one thing I am quite sure: namely, that it would be quite wrong to seek to alter the law in this way by new Rules of procedure. If such a change is to be made it ought to be made deliberately by Parliament, and, indeed, the Council on Tribunals 928 recognise this to some extent in their Report when they say they have not felt able to insist on rights in favour of third parties being inserted in the Rules. However, they then go on to recommend that the Minister should give an assurance that third parties will in practice be given the benefit of the Rules, just as if they had in fact been given legal rights by the Rules themselves; and that, as I understand it, must mean including rights of appeal.
My Lords, I regret that I cannot give your Lordships any such assurance, and I am quite sure that it would be a mistake for me to do so, for I really cannot express with any confidence any opinion as to the legal effect of any such assurance. It is obviously intended that third parties should be put in a position to act as if they had legal rights, without any legal rights in fact being given to them, so that any such assurance has the disadvantage of creating, to put it at its lowest, a very great deal of uncertainty which it would seem likely could only be resolved by litigation in the courts. If the courts finally held that a third party was in effect given legal rights as a result of any such assurance, we should then have reached the position that the Town and Country Planning Act had in effect been altered by the giving of this assurance, a position which I cannot believe your Lordships would wish to accept.
Moreover, the uncertainty of the position would be accentuated by the fact that no clear definition would, or I suggest could, have been given as to What third parties were supposed to have been given the assurance suggested. The Council refer to persons whose interests are affected by reason of loss of amenity or depreciation of the value of their property or on other similar grounds; but I cannot believe that it would be satisfactory to put ourselves in the position of conferring new legal rights by an administrative assurance on a class of people who have not been clearly defined, either in the Act itself or by the subordinate legislation made under it.
I should, however, like to assure your Lordships that in practice "he position of third parties, apart from the right of recourse to the courts, is not so dark as 929 it might seem in the light of what I have just said. Under the Rules, they are given, an opportunity to inspect copies of the planning authority's statement and the maps and other documents referred to in it, and they will in practice continue to have a full opportunity of being heard at the inquiry. They will also (be able to obtain a copy of the inspector's report. It is true that they will not be able to claim the benefit of the procedure laid down in Rule 10 in one instance and Rule 9 in the other for the reopening of the inquiry; but I doubt whether in practice that will be such a disadvantage as it might at first sight appear, for presumably any third party whose interests are affected by the inquiry will be able to ally himself with the local planning authority or the appellant as the case may be.
I think I have now covered the main points which have been raised in this debate, and I hope that your Lordships, on reflection, will agree that in the Rules we have gone as far as we properly can in looking after the interests of third parties, and I hope your Lordships will agree that any extension on the lines which have been suggested is something Which it would not be proper to deal with except in the context of a Bill in which all the complex issues involved could be closely examined.
I think I have now dealt with the main points that have been raised by the noble Lords who have spoken, but it remains perhaps just to deal with one point Which has been raised and which I do not think has been covered by anything I have said. That is about the position of giving notice of these inquiries to third panties. The noble Lord, Lord Lucas of Chilworth, required notice to be served on interested third parties. Of course, the difficulty that the administrators have is knowing in advance who will be she interested third parties, but I think myself that the provisions set out in Rule 4 really provide adequate machinery for drawing the attention of those who are interested to the fact that an inquiry is going to be held. Perhaps I might, in conclusion, again repeat my thanks to the noble Lord for raising this matter, which has enabled me to make, I fear, too long a speech, but which I hope will do something to remove some misapprehensions 930 and elucidate the position which if these Rules are approved will in future continue to apply.
§ 5.32 p.m.
§ LORD LUCAS OF CHILWORTH
My Lords, the noble and learned Lord need not apologise for the length of his speech. He has put us in his debt by making such an exhaustive survey and in such plain language. I will put it in even plainer language: he rejects the proposals of the Council on Tribunals; that is what it means. I am not going to make any comment on that now, because that requires thought. Am I to gather from his opening remarks about the called-in inquiry that at some time in the future—I join with him in hoping that it will not be another three years—there will be Rules governing the procedure to be adopted in called-in inquiries?
Also I am not quite happy—the noble and learned Lord could give me further information—about the position when the objector is the only possible objector and that objector happens to be a third party. The noble Lord has cited the Chalk-pit case. Major Buxton was at best a third party. Suppose that the local planning authority had not taken any action after the firm in question had appealed. Buxton would have been high and dry. There can be thousands of Buxtons, as the noble Lord, Lord Silkin, said, who have not the faintest idea that anything detrimental to their interests is going to happen until, like the beanstalk in the fairy story, it happens suddenly that a monstrosity has appeared next door. I think the noble Lord, on reflection, will agree that there should be some better arrangement than in Rule 4, so that genuinely interested parties could be informed. A genuinely interested party should be able to go to the Minister and the Minister should decide whether he had a frivolous case or a genuine one; because the only way to get a public inquiry then is for the Minister to call the application in. I will not ask the noble and learned Lord to give me an off-the-cuff reply, but at some time perhaps I might put a Question and he might care to answer it.
I am most grateful to the noble and learned Lord. I am also most grateful to the noble Lord, Lord Silkin. After 931 all he is one of the greatest authorities in this country Upon this matter. Perhaps he would not claim to be so to-day, but that was the case in 1947. With those words, and with repeated thanks to the noble and learned Lord, I would ask your Lordships' leave to withdraw the Resolution standing in my name upon the Order Paper.
Resolution, by leave, withdrawn.
§ COMPULSORY PURCHASE BY LOCAL AUTHORITIES (INQUIRIES PROCEDURE) RULES, 1962
§ 5.41 p.m.
§ LORD LUCAS OF CHILWORTH had given Notice of his intention to move to resolve, That an humble Address be presented to Her Majesty, praying that the Compulsory Purchase by Local Authorities (Inquiries Procedure) Rules, 1962 (S.I. 1962 No. 1424), dated 9th July 1962, laid before the House on 13th July 1962, be annulled. The noble Lord said: My Lords, I do not intend to press this Resolution. I put it on the Order Paper because I thought that other noble Lords might wish to raise questions. I have none, and with your Lordships' permission I will move it and then withdraw it.
§ Resolution, by leave, withdrawn.