HL Deb 10 December 1968 vol 298 cc472-80

5.57 p.m.


My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received—(Lord Hughes.)

On Question, Motion agreed to.

LORD BURTON moved Amendment No. 1: After Clause 20, insert the following new clause:

Contravention of planning regulations

". If any person undertakes development in contravention of the planning regulations he shall be guilty of an offence and liable on summary conviction to a fine of such amount as may be prescribed by regulations."

The noble Lord said: My Lords, I must apologise, particularly to the noble Lord, Lord Hughes, for putting down this Amendment so late; but this Bill has been making such rapid progress since it first appeared that it is only this morning that the Inverness County Council have had the opportunity of discussing it, and it is through the County Council that the need for this Amendment came to my attention. The Amendment probably lends itself to be torn to shreds by the draftsmen owing to the rush with which I have put it down: nevertheless I think the meaning must be clear, and I hope that the noble Lord will be able to accept something upon these lines.

I suspect that the noble Lord may be girding himself to say that the Amendment is not necessary. He will no doubt say that the principal Act of 1947 has been strengthened by the provisions for stop notices. I shall anticipate such comment by saying that we do not much like the provision of stop notices. They are rather cumbersome and cannot have the effect I am seeking. If a person starts to construct a building or to deposit litter—although I think the word used in the Bill is "refuse"—he can be stopped from proceeding with such action. However, he has already committed a breach of the planning regulations and nothing can be done about it except to stop him or to tell him to take down the building.

Section 30(3) of the principal Act lays down that contravention of the advertising regulations is an offence. Why should it be an offence to contravene the advertising regulations and yet no offence to contravene the building or dumping regulations? The Building (Scotland) Act 1959, in Section 6(1), makes provision for anyone contravening the building regulations to be guilty of an offence. If this is the case with the building regulations, to be consistent, similar action should apply to the planning regulations. Only last month we had a case before the Inverness Council. A building speculator who was perfectly aware of the regulations started work on a housing scheme without prior planning consent, and without building authority approval. The chairman of the planning committee came to see me as chairman of the building authority and said: "We on the planning committee can take no action against this man, even though it is not the first infringement committed by him. All that we can do is to give him a 'rocket' and tell him not to do it again. You on the building authority, on the other hand, have teeth, and while we can only bark you can bite." What in fact happened was that the building authority issued a very severe final warning. My Lords, I hope that this example shows the need for giving teeth to the planning authorities also. Accordingly I beg to move the Amendment which stands in my name.


My Lords, in some of his assumptions the noble Lord, Lord Burton, is correct; in others he is not. He is correct in assuming that we could destroy the Amendment on drafting grounds alone. I do not propose to do that, because even had the Amendment been drafted in perfectly proper form I should still have been against it, since it is the principle of the Amendment that I dislike and not the words in which it is wrapped up.

With the object lying behind the Amendment, that it is desirable that the planning law should be held in respect, and that people should be discouraged from attempting to disobey it, I am of course in agreement. But it has never been part of the planning law to make it a penal offence to carry out a development without planning permission. Unauthorised development leads to offences only after enforcement action has been successfully taken, and we believe that it would be both impracticable and undesirable to make development without planning permission automatically an offence.

The existing provision is that enforcement action is at the discretion of the local planning authorities. They have a variety of actions which they may take. They may decide that a matter is too trivial to be worth bothering about—and that sometimes happens. Or they may decide that, despite the lack of planning permission, there is no conflict with good planning standards, and on an application being made they grant it without any difficulty. In these circumstances it is open to them either to take no action at all or to require the developer to regularise the position by applying for permission; and when it is granted that is an end of the matter. If, however, they decide that the development is undesirable, they can initiate enforcement procedure which contains provision for penalties if the developer does not respond. In the course of the enforcement the full case for and against the development can be argued out, and the usual rights of appeal, public inquiry and so forth can be exercised. There is no need for planning appeal where the planning factors are favourable or where they are undecided. Nor is there any loss of control if, after due consideration, the planning merits are found to be against the development.

My Lords, if we accepted the Amendment, one of the difficulties would be that, theoretically at any rate, the procurators fiscal in various parts of the country would be obliged to take action in every case brought to their notice where development had gone ahead without planning permission; and in many cases the procurators fiscal would be burdened with prosecuting large numbers of unimportant cases, or alternatively with the responsibility of deciding whether an offence had been committed. In many cases a procurator fiscal could not do so without having regard to a substantial expertise in planning law. If the Amendment were accepted it would be an offence and consequently there could be a penalty in all cases, even if the development was trifling, and even if it was obviously consistent with good planning. Even if, on appeal, the developer won his case, he would still be liable to a penalty. To enact this would, I submit, be to elevate the formalities of planning control above common sense. We are satisfied with the law as it is and as it will be amended. All that is necessary is to require that planning permission is sought and is then complied with.

It is true, as the noble Lord has said, that sometimes a developer or an individual goes ahead knowing that he is committing a breach of the law. These are the circumstances in which, if the development was not sound planning development, the planning authority would proceed rigorously against the developer. There may be other cases where an individual proceeds in ignorance and where the only thing the authority could do eventually would be to require the building to be taken down. The authority might say, "Well, if this had come to us in the first instance it is touch-and-go whether we would have agreed to it; but it would be a terrible hardship to the individual, simply because he had acted in ignorance, to require him to take down the development". They might, in fact, give planning permission in that sense. That is the sort of common-sense way in which we expect local authorities to act. But I should not object if, when someone who knew better put up something which was not good planning, the authorities said, "It does not matter how much it is going to cost; you must pay the penalty for your own wrongdoing. We would not have granted permission for this if you had applied in the first instance, and we are not going to grant permission now just because you have 'jumped the gun' and committed yourself to expenditure."

The remedies in the hands of the authorities are adequate, and we think it would be wrong to subject any possible infringers of planning applications to penalties, as this Amendment would do; or alternatively, to require procurators fiscal to sift through all the infringements and to say, "That one I will not prosecute, although the law has been broken; that one I will prosecute". Procurators fiscal would be placed in an impossible position if this Amendment were accepted.


My Lords, I am afraid that I cannot agree with the noble Lord, Lord Hughes, about the procurators fiscal. If you put up a bed-and-breakfast sign, you are committing a criminal offence for which you can be prosecuted. That is already in the 1947 Act. But if you build a garage or a factory or an office, nothing can be done about it except that you may be told to take it down. To me this seems quite illogical. If you infringe quite minor regulations, as happened in the case I mentioned, there would be no need for a procurator fiscal to take action. We issued a warning. In respect of minor infringements, where there is no need for a case to be taken, there would be no need for a procurator fiscal to go through all the procedure referred to by the noble Lord. I think that a great deal of unnecessary emphasis has been put on to that. All I am asking is that where there is a flagrant infringement, or someone infringes the law on a number of occasions—as has happened—there should be some power to deal with it. I think that the proposal is perfectly reasonable. The noble bard, Lord Hughes, is opposing it, but I hope that he will have a further look at the matter. Meanwhile I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 63 [Delegation of planning functions to officers of local authorities]:

LORD HUGHES moved Amendment No. 2: Page 58, line 24, after ("believed") insert ("both").

The noble Lord said: My Lords, the effect of this Amendment would be to remove a possible ambiguity in Clause 63(5) of the Bill. That clause provides that where an action has been brought against an officer of a local planning authority in respect of an act done by him in the discharge, or purported discharge, of functions delegated to him under Clause 63 the authority may indemnify him against the whole or part of any damages or expenses which he may have been ordered to pay or may have incurred. Before doing so the authority must be satisfied that the officer believed that the act complained of was done by him in the discharge of the delegated functions, and that he believe that his duty required or entitled him to do it. This wording would make it possible to argue that the local authority and not the officer had to be satisfied that his duty required or entitled him to do the act in respect of which an action had been brought. This, my Lords, was not the intention, and it is important that this ambiguity be removed.

I must thank the noble Lord, Lord Drumalbyn, for enabling us to discover it, because it was as a consequence of looking at an Amendment which he put forward on Committee stage, and which the Government were unable to accept, that we found this mistake. It would be unfair both to the officers and to the persons claiming damages to leave unnecessary doubt, and consequently scope for litigation, about the conditions under which indemnification can operate. The purpose of the Opposition's earlier Amendment was to clarify those conditions and although the Government were unable to accept that Amendment the present Amendment does improve the position, from the point of view both of officers and of possible claimants. Perhaps it is an unexpected dividend from the noble Lord's attempt at the last stage, but I hope he will find it welcome. I beg to move.


My Lords, even though my effort to improve this clause did not commend itself to the Government, I am glad that at any rate it had the effect of drawing the Government's attention to this ambiguity. I must confess that I had not spotted it. The reason was that I read it the wrong way. Therefore, I am all the more glad that the Amendment has been moved, and we are glad to accept it.

On Question, Amendment agreed to.

Clause 106 [Short title, citation and extent]:

LORD HUGHES moved Amendment No. 3: Page 87, line 17, leave out ("1959") and insert ("1966")

The noble Lord said: My Lords, I must say that history has been made. This is the first time that there has been anything in a Scottish Bill with which the noble Lord opposite has been concerned which he has not noticed. He has found every other error up to the present. This Amendment is purely drafting. Clause 106(2) provides that the Bill may be cited with the existing corpus of Scottish planning legislation as "The Town and Country Planning (Scotland) Acts 1947 to 1968". The present group citation is wrongly given in Clause 106(2) as the "Town and Country Planning (Scotland) Acts 1947 to 1959". It is true that the last Town and Country Planning (Scotland) Act was that of 1959 but there are three subsequent Acts, extending to Great Britain as a whole, which form part of the body of Scottish planning law and which are cited with the Town and Country Planning (Scotland) Acts. These three Acts are the Town and Country Planning Act 1963, the Control of Office and Industrial Development Act 1965, and the Industrial Development Act 1966. This Amendment corrects the drafting. I beg to move.

On Question, Amendment agreed to.

Schedule 6 [Procedure in connection with orders relating to footpaths and bridleways]:

LORD HUGHES moved Amendment No. 4: Page 108, line 24, leave out ("and")

The noble Lord said: My Lords, with permission, I will speak to Amendments Nos. 4 and 5 together. The effect of Amendment No. 4 is to ensure that any person named in an Order under Clause 91(2)(d) shall be served with a notice. Clause 91 provides that a local planning authority may by order authorise the stopping up or diversion of any footpath or bridleway, if they are satisfied that it is necessary so to do in order to enable development to be carried out. Subsection (2)(d) authorises the local planning authority to name in the order persons who are required to pay or make contributions in respect of the cost of the carrying out of works in connection wits the stopping up or diversion.

When an order has been made, a notice stating its effect and giving other particulars must, in accordance with Schedule 6, paragraph 1, be both published and served on various parties. These do not include persons named in the order, and there is therefore a theoretical possibility that a person might be named in an order under Clause 91(2)(d) and not be informed of the fact. The effect of the Amendment will be to prevent this possibility. If I remember rightly, it was in discussing another Amendment which the noble Lord, Lord Drumalbyn, moved that I drew attention to this and undertook to put down an Amendment at Report stage which would correct this situation. The Amendment goes a certain way along the road which the noble Lord wanted us to travel in any event.


My Lords, what the noble Lord says makes me wish that I had put down many more Amendments because, even though the Government could not have accepted them, they might have found something else wrong. However, I remain an optimist and I am grateful to the noble Lord.

On Question, Amendment agreed to.

LORD HUGHES moved Amendment No. 5:

Page 108, line 28, at end insert— ("(iv) any person named in the order by virtue of section 91(2)(d) of this Act; and").

The noble Lord said: My Lords, in moving this Amendment, I would point out to the noble Lord, Lord Drumalbyn, that probably the comparatively large measure of success he has achieved is because he was so reasonable and modest at the beginning. If he had gone further he might have tried his luck too far.

On Question, Amendment agreed to.

Schedule 10 [Enactments repealed]:

LORD HUGHES moved Amendment No. 6:

Page 127, line 39, at end insert— ("In section 16(1), the words ' by the Minister'").

The noble Lord said: My Lords, the effect of this Amendment is to delete the reference in Section 16(1) of the Civic Amenities Act 1967 to the Secretary of State. Section 16(1) provides that a local planning authority may include in a tree preservation order a direction that the order should take effect at once, without prior confirmation of the Secretary of State. When such a direction is included, the order comes into force provisionally on the date specified by the local authority and remains in force for six months or until the order is decided on, whichever is the earlier. The object is to give a breathing space by preventing the destruction of the trees during the period in which the order is under consideration. Under Clause 80 of the Bill, tree preservation orders are now to be confirmed by the local authority and not by the Secretary of State, if they are unopposed. The reference, therefore, to the Secretary of State, who is "the Minister", in Section 16 of the Civic Amenities Act, is now inappropriate in these unopposed cases. The Amendment will therefore leave unqualified the reference to confirmation so that it can mean confirmation by the Secretary of State or the local authority, as the case may be. I beg to move.

On Question, Amendment agreed to.

LORD HUGHES moved Amendment No. 7: Page 127, line 42, leave out ("67(b) and 72(c)") and insert ("66(b) and 71(c)").

The noble Lord said: My Lords, this is a simple Amendment which corrects two printing errors. I beg to move.

On Question, Amendment agreed to.