HL Deb 28 November 1968 vol 297 cc1331-66

4.40 p.m.

House again in Committee.

Clause 8 agreed to.

Clause 9 [Adoption and approval of local plans]:

On Question, Whether Clause 9 shall stand part of the Bill?

LORD STRATHCLYDE

May I ask—

THE DEPUTY CHAIRMAN OF COMMITTEES (LORD MERTHYR)

The noble Lord, Lord Hughes, has given notice that he wishes to speak. The noble Lord, Lord Strathclyde, will be able to speak later.

LORD STRATHCLYDE

I was merely going to ask the noble Lord, Lord Hughes, whether it would be convenient for him to answer the questions which I put to him.

LORD HUGHES

When we were discussing Clause 7 before the House resumed, the noble Lord, Lord Strathclyde, expressed doubts as to a difference in the wording of Clause 3 relating to structure plans, and the wording of Clause 7 relating to local plans. He said that the terms of Clause 9(4)(b) reinforced the doubts in his mind. I have taken advantage of the interval to read over the wording of Clauses 3 and 7, and quite frankly I cannot understand why the noble Lord has any doubts at all on the matter, because the clauses are identical except for such differences as are necessary since one deals with structure plans and the other deals with local plans.

For instance, in its preamble, Clause 3(1) has different wording because it refers to structure plans. But when it goes on in paragraphs (a), (b) and (c) to deal with what is necessary, those paragraphs are almost identical with paragraphs (a), (b) and (c) of Clause 7(1). The only difference is in the reference to the actual type of plan, but the action taken is identical. The same applies to subsections (2), (3) and (4) of both clauses. Subsection (5) of Clause 7 comprises in itself the action which falls under subsections (5) and (6) of Clause 3, and subsection (7) of Clause 3 does not appear in Clause 7 because it relates only to action on structure plans.

With regard to Clause 9(4)(b), to which the noble Lord, Lord Strathclyde, referred, I would point out to him that subsection (4) refers only to cases covered in subsection (3). Where the Secretary of State has directed that the plan should not have effect unless approved by him, then these other conditions in subsection (4), to one of which the noble Lord referred, will have effect. But it is only in those cases where the Secretary of State has not approved a local plan that the effects of subsection (4) come into operation. The case to which the noble Lord directed attention—that is, paragraph (b) of subsection (4)—merely lays down that if, after the Secretary of State has sent the plan back to the local authority for consideration, they have undertaken various courses of action, then the Secretary of State is not going to do the same thing all over again.

I hope I have satisfied the noble Lord that all that we have done—because we are dealing with two different plans—is to take the easy way of having two clauses dealing separately with each plan, instead of using the complicated way of trying to cover both plans in one clause and getting so hopelessly mixed up that neither he, I nor anybody else would understand it either at the first, second or third time of reading.

LORD STRATHCLYDE

I am very grateful to the noble Lord for the long explanation which he has given me. But because the similarity is so great, it makes me wonder all the more whether the one procedure should not apply to both sets of plans. I simply do not understand why it should not. The differences are so slight that they might well be brought together.

LORD HUGHES

Perhaps some time, when the noble Lord and I have an hour to spare in the Library, we can sit down and compare the two plans. He will then find that by what he is now suggesting he is asking me to undertake an impossible task, and if I were to undertake it he would be able to comment on it only in the sort of naval language which he never uses in your Lordships' Chamber.

Clause 9 agreed to.

Clauses 10 to 20 agreed to.

Clause 21 [Determination of planning and similar appeals by persons appointed by the Secretary of State]:

On Question, Whether Clause 21 shall stand part of the Bill?

LORD DRUMALBYN

On Second Reading the noble Lord, Lord Hughes, was good enough to explain that at the present time it was not proposed to appoint persons in accordance with this and subsequent clauses, because the number of appeals were running at a fairly low level and a high proportion of them were withdrawn each year. I dare say the noble Lord will not yet have had time to consider this matter, but if the Secretary of State were to appoint persons to hear appeals of this kind—that is, appeals against planning permission, appeals in respect of certificates of established use, and so on—what sort of persons would he appoint?

Of course, it has often been the custom in the past to appoint advocates to hear appeals of this kind. On the other hand, in England and Wales the procedure has been quite different because, as I understand it, the people who hear such appeals are inspectors from within the Departments with special experience of planning matters. It will be interesting to hear whether the noble Lord can forecast what kind of person will be appointed.

The last point which I should like to mention here is that the Explanatory Memorandum at the beginning of the Bill refers to the gentleman, (for convenience referred to in this memorandum as a 'Reporter')". We had a long discussion about reporters when we were dealing with social work departments, and we were not very clear then whether the word "reporter" was an apt description. It would be even more inept, I think, in this case, because a reporter is someone who reports his findings to somebody else, and in this case the reporter will be the person who actually decides the case. So although it may have been a convenience to refer to these gentlemen as "reporters" in the Explanatory Memorandum, I hope they will never in fact be referred to as "reporters" if the Secretary of State ultimately decides to appoint them to hear appeals.

I notice from page 82 of the Scottish Development Department's Report for 1967 that the number of appeals received during the year was 341, which is about the average of the previous two years, and that of these 157 were withdrawn. This, I take it, means that the capacity of the Department to deal with appeals at this level is adequate, and I assume that it is only if the number of appeal; coming up exceeds the capacity of the Department to deal with them that they will then appoint persons of this character to hear the appeals.

LORD HUGHES

The noble Lord, Lord Drumalbyn, has recollected what I said on Second Reading. The Government decided that this was a piece of machinery in the English measure which it was reasonable for us to put into the Scottish Bill, although we thought it was most unlikely, having regard to the volume of appeals, to which the noble Lord has referred, that we should have occasion to use this delegation in the foreseeable future. Simply because of the fact that we do not expect to be using this machinery unless things change very radically in the next few years, I would be reluctant to predict the sort of individual who will be appointed to take decisions on these matters, but obviously he must have one or other of possible qualifications. He must be either someone who is qualified as a planner or someone with legal qualifications. If there is any person who has both qualifications, then obviously he is tailormade for the job. I do not know whether there is such an animal, but it really is much too early to make any prediction at all.

The noble Lord referred to the use of the word "reporters". That term is used in the Explanatory Memorandum because that is the name of the people who are employed at the moment and, as the noble Lord said, it is a proper description for them. Incidentally, I do not accept the implication in the noble Lord's Comment that the use of the word "reporter" in the Social Work (Scotland) Act was inept. That is by the way, but the noble Lord said that its use here is even more inept, so if I let it go I would in fact be concurring with him, which I do not. It does not follow that if we ever come to appoint somebody to do this particular task, which will in fact be taking decisions and not reporting so that someone else may take a decision, this is the word which will be used; but because is so far in the future, I hope, I should not wish to suggest what term would be applied. In conversation the other day the noble Lord, Lord Drumalbyn, suggested that the word "commissioner" might be more apt. I must say that at first glance this is the sort of thing which commends itself to me as being more appropriate than the use of the word "reporter". However, I am quite certain that it will be sufficiently far in the future, if it ever arises, as to 'be most unlikely to be a matter of other than academic interest either to the noble Lord, Lord Drumalbyn, or myself, so I do not wish to be involved.

Clause 21 agreed to.

Clauses 22 to 27 agreed to.

Clause 28 [Compulsory acquisition of land in connection with development and for other planning purposes]:

4.54 p.m.

THE EARL OF DUNDEE moved Amendment No. 4:

Page 28, line 43, at end insert— ("Provided that the purpose for which the Secretary of State may authorise the land to be acquired by such other local authority shall be the same purpose for which he has power to authorise the acquisition of the land by such first mentioned local authority.")

The noble Earl said: Under subsection (2) of Clause 28 the Secretary of State is taking power to authorise a local authority to whom this clause applies to acquire land compulsorily and then to authorise that the land so acquired be taken over by another local authority. My Amendment proposes that this power of the Secretary of State should be restricted so that transfers from one local authority to another would be allowed only for the same purpose as that for which the land was originally acquired. I hope that your Lordships and the Government will agree that that is a reasonable proposal. I do not think it would be fair on anybody, particularly on the people from whom land has been compulsorily acquired, that one local authority should acquire it for the purposes of, let us say, a recreation ground and that the Secretar of State should then authorise its transfer to another local authority for the purpose of a housing scheme or an industrial estate. I think that it would not be any restriction on the progress of development if it were required that, before there was such a transfer, the matter should go back and be considered again from the beginning. I beg to move.

LORD HUGHES

Subsection (2) gives the Secretary of State power, in a case where he has authorised a local authority to whom Clause 28 applies (that is to say, a county council, a large burgh or a small burgh), to authorise the land to be acquired instead by another authority, being a local authority within the meaning of the 1947 Act; that is, the same range of authorities plus a district council, a joint board or committee of local authorities and certain others. This is a power which in fact is seldom used, but it is potentially of value and may be of value in this particular concept, where we envisage local planning authorities working together as we discussed on an earlier clause. For example, there may be cases where land lying across the boundaries of two or more local authorities should be developed in close association with the redevelopment of land within one authority, and it is really only common sense in these circumstances that the acquisition should be carried out in a single operation by one of the authorities concerned. There may also be added need for this power in advance of the reorganisation of local government to enable co-operating authorities to work together for the acquisition of land within a regional context.

The effect of making the Amendment would be to ensure that where a different authority was authorised to acquire the land the purpose for which the original acquisition was authorised could not be changed. I presume that the main object of this is to prevent the authorisation of compulsory purchase for a purpose such as an open space, where the value would not be high, followed by its use by another authority for another purpose which, if it had been the original purpose, would I have brought about a higher purchase price to the person from whom it was compulsorily acquired

This, of course, is neither a new provision nor an extension of the powers of compulsory purchase. It has existed in Section 35(3) of the Scottish 1947 Act, and it has stood the test of time. This has been in operation for 21 years. Like many of the provisions in Part IV of the bill this subsection is designed not to create a new power but to reconstruct an existing power in a way that takes account of the abolition of the requirement that land to be compulsorily acquired must be so designated in the development plan. Section 35(3) of the 1947 Act depends on designation. It is therefore repealed in Schedule 10 because of the abolition of that requirement, and Clause 28(2) does no more than take its place; The general import of Clause 28(2) of the Bill is the same as the general import of Section 35(3) of the 1947 Act.

To come to the merits of the Amendment, we do not think there is any need for a safeguard of the kind proposed. Since both the initial compulsory purchase order and the decision to authorise another local authority to acquire the land lie with the Secretary of State; and since both are linked to the proposals of the development plan, there is no need to fear that land which could be acquired for one purpose can be acquired and used for another purpose.

In these circumstances the question of compensation does not arise to any greater extent than on any other case of compulsory acquisition. The theoretical possibility of a change of purpose after acquisition has been authorised is neither greater nor less whether the original acquiring authority or another authority carries out the actual transaction. The existing safeguards, both statutory (as in the case of the certificate of alternative development procedure) and administrative (as in the arrangements for offering agricultural land back to its former owner), apply equally to both cases.

Perhaps I might say a word about the certificate of alternative development procedure. A local authority may seek to acquire land from someone for a particular purpose. That purpose might be, say, for open space, and in that case the amount of compensation payable would probably be the lowest of any that could be paid. The owner of the land may say to the local authority that his land could be better used for this, that or another purpose. If he does, then the local authority must go into this matter. If they agree with the owner that, although they propose to acquire the land for an open space, it could reasonably be used for, say, housing development, they give him a certificate to that effect and the compensation to which he is [...] is assessed on the basis that the land is being used for this alternative purpose rather than for the use to which the local authority are putting it. If, on the other hand, the local authority do not agree with the owner that the land could be better used for another purpose and refuse to give him a certificate, this is a matter on which he has a right of appeal. In these circumstances, there is no question of a local authority deliberately see king to acquire land for, say, open space, if they really intend to use it for another purpose and designating it as open space only in order to acquire it at the lowest price, because the individual by this procedure is safeguarded against that.

I do not think I need to go into the matter of offering agricultural land because I think all noble Lords are familiar with that procedure. We are carrying forward in the Bill the procedure in the same terms as it has existed for 21 years. It is only because of the fact that the matter no longer rests on the designation in the development plan (which was a feaure of the 1947 Act) that it is necessary to re-enact it in the form in which it now stands; in Clause 28. I therefore invite the noble Earl not to press this Amendment.

THE EARL OF DUNDEE

I agree with what the noble Lord has said about the convenience of enabling land to he transferred from one local authority to another. This Amendment is concerned purely with the cases in which there is a change of purpose. The noble Lord, if I understood him aright, has assured the Committee that this clause makes no change in the previous law in that respect compared with the 1947 Act. I do not want to ask him to look for examples now; but is it the case that this is what has happened under the 1947 Act until now? Is it the case that when there has been a change of purpose the owner has been offered the land back for, for example, agricultural purposes? Is the onus of showing that the land is now being used for some purpose other than that for which it has been designated laid on the owner or the former owner? Or is the position that the owner must exercise foresight and must claim (and have his claim either accepted or turned down) that the land should [...] should not be used for a certain purpose; so that he may be in a position later, if there is a change of purpose, to claim that it should be given back to him or that additional compensation should be paid?

LORD HUGHES

The position is as stated in the noble Earl's final remarks, and has been so during this decade. If an owner feels that his land is not being put to the best possible use, and therefore is not going to give him the best possible compensation, he has a right to ask for a certificate of alternative development. If he gets it he is immediately covered in the compensation. But if he does not get it, or does not apply for it, and merely accepts that the local authority take over the land for the purpose suggested, then in neither of these cases, if there is a change of purpose, has he any further rights in the matter. That is the position at the present time.

There may be cases where an authority acquire land for some purpose and. because of a change of circumstances, use it for something else—not necessarily something which would have placed a higher value on it. Sometimes it is the other way round. Sometimes a local authority may acquire land for, say, housing, and then, because of something which was not apparent in the beginning, do not put it to this valuable use, but use it for open space. In such circumstances the local authority have no right to go to the individual and say, "We compensated you on the basis that the land would be used for housing. We have therefore paid you too much and we want to reopen the matter so that compensation may be fixed on the basis of the use to which the land is to be put." The position is that in these circumstances both parties are stuck with the original bargain. That is how it has worked during these 20-odd years; and by and large it has been satisfactory. I would confirm the noble Earl's first point that we are in fact re-enacting the law in the form at which it presently rests.

THE EARL OF DUNDEE

I think the noble Lord's explanation is a reasonable one. I would ask the Committee's leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

Clause 29 agreed to.

Clause 30 [Power of authorities possessing compulsory purchase powers to make general vesting, declarations]:

5.9 p.m.

On Question, Whether Clause 30 shall stand part of the Bill?

THE EARL OF DUNDEE

My purpose in speaking to this clause is to enable the Committee to get an explanation of a point that I should like to raise. This proposal in Clause 30, to introduce vesting procedure for compulsory acquisition in relation to acquisitions under the Town and Country Planning legislation, has caused me a little concern, because the Land Commission already have such powers, and it seems to me unnecessary for those powers to be given also to the local planning authorities. If a local authority cannot acquire the land they need, they can invoke the aid of the Land Commission. I would therefore suggest to the Government that this clause is introducing an unnecessary duplication and that it is not desirable that such powers should be given to local planning authorities in addition to the Land Commission.

LORD HUGHES

The brief which I have been given starts off with words which I should have been reluctant to use in any event, because I was quite certain that they did not cover the intention of the noble Earl. The words are, "This is a wrecking Amendment". It is, of course, almost a declaration of war to use words of that kind, but in fact that would be the effect of the Amendment. What I suspected was that the noble Earl, in moving to leave out the clause, was seeking information about why it is necessary. I think I can make even better use of the occasion by seeking to remove some of the doubts and misapprehensions which people have about a general vesting declaration, which has a somewhat ominous ring about it.

I wish that it had been possible to cover this purpose in perhaps more innocuous terms, because what is done by a general vesting declaration is something which is helpful to the acquiring authority and to the person from whom the land is being acquired. May I remind your Lordships that the White Paper on the Land Commission, published in September, 1965, stated the Government's intention of making available to other public authorities in subsequent legislation the power then being conferred on the Land Commission of making vesting declarations to effect speedy vesting in themselves of land which they were authorised to acquire compulsorily.

What does a vesting declaration do? In the first place, it gives a quick good title to land which is to be disposed of for development, the delays of normal conveyancing being avoided. Secondly, settlement of compensation can proceed independently of vesting, and in most cases quicker payment is possible without full investigation. The effect of this clause is, therefore, as was predicted in 1965, to make available to local authorities a power, once a compulsory purchase order has been confirmed (this is important because all the procedures in relation to compulsory purchase up to confirmation have to be gone through; therefore the land is going to go to the acquiring authority) to obtain a good title to land by a simple and speedy process which will transform all the rights of the existing owner in the land to rights to compensation.

The first of the advantages which I have described is not so relevant to local authorities as to the Land Commission since the former are mainly concerned with acquiring and holding land rather than disposing of it. But the economies of professionally trained manpower and of time which the vesting procedure can provide in land transactions are very material. The noble Earl, Lord Dundee, said that the Land Commission already have these powers, and he asked why, therefore, was it necessary to duplicate them by giving them to local authorities? It was never the intention that the Land Commission should supplant other public authorities possessing compulsory purchase powers, and we went out of our way when the Land Commission was being set up to make perfectly clear that it was not going to override the powers of local authorities. Apart altogether from the merits of preserving the rights of local authorities, if it had been the intention to act in that way it would have meant that the Land Commission could have undertaken the obligation then laid on them only by an enormous expansion of their activities and staff, without any guarantee that there would be any corresponding reduction in the staffs of local authorities. This would have been seeking an expansion of staffs which at the present time are in comparatively short supply, and so we should have been multiplying the demand for staff in a market where they did not exist, and to serve no useful purpose.

For these reasons, we came to the conclusion that it would be unacceptable equally to the Government and to local authorities that the Land Commission should take over in all these cases, and, by the same token, I should have thought it would have been equally unacceptable to the Opposition that it should work in that way. May I conclude by giving to the noble Earl, Lord Dundee, a clear assurance that so far as compulsory acquisition itself and the rights to compensation are concerned, the procedures, including the rights and safeguards, are precisely the same, irrespective of the use or the existence of the vesting declaration procedure. If anybody has an objection to the use of the vesting procedure (he is no longer here, but it may be gratifying to the noble Viscount, Lord Massereene and Ferrard, to know it), I may say that the people who stand to lose are the lawyers.

THE EARL OF DUNDEE

I am much obliged to the noble Lord for his explanation.

On Question, Clause 30 agreed to.

Clauses 31 to 34 agreed to.

Clause 35 [Extension of grounds of objection to blight notice]:

5.17 p.m.

LORD DRUMALBYN moved Amendment No. 5: Page 34, line 24, leave out ("do not propose") and insert ("undertake not").

The noble Lord said: The purpose of this Amendment is to substitute the words "undertake not" for the words "do not propose" in page 34, line 24. The clause we are talking about extends the grounds on which objection may be made to a blight notice contained in a counter-notice served by an appropriate authority—it all sounds frightfully technical. As I understand subsection (1), it deals with land falling within Section 38(1)(c) of the 1959 Act; that is, land indicated in a plan of land on which a road is proposed to be constructed, or land to be included in a road which it is proposed to alter or improve, other than land falling under paragraph (b) of subsection (1).

I am bound to say that I find it very difficult to see what modification paragraph (b) makes to Section 38(1)(c) because it also seems to relate to roads and what is excluded from 38(1)(c). The other kind of land, apparently, is land indicated in a structure plan either as land acquired for the purposes of the appropriate authority or as land which may be included in an action area as defined in Clause 2(5). The subsection says that in the case of such land the grounds on which an objection may be made include the grounds that the appropriate authority … do not propose to acquire … any part of the hereditament or … any part of the affected area during the period of fifteen years, … or more.

It does not seem that the appropriate authority is in any way bound by such an assertion. I recognise that Clause 39(2)(b) of the 1959 Act uses exactly the same words—"do not propose to"; but that is simply a statement that they have no present intention of ever acquiring the land. That, surely, is quite different in character from an assertion that they do not propose to acquire it within a given period. Obviously, a local authority, or any appropriate authority, cannot give an undertaking never in any circumstances to acquire the land in the fullness of time in the future. It cannot do that, and clearly in a case like that the words "do not propose" are appropriate; but nothing less than an undertaking has any value in relation to a given number of years. If they violate that undertaking, they should certainly have to indemnify the person serving notice in respect of any loss he might have incurred or may incur as a result of the violation. Therefore, it seems to me that an undertaking ought to be given in cases of this kind if the local planning authorities are going to rely on that to sustain a counter notice to a blight notice.

LORD HUGHES

The noble Lord has referred to Section 39 of the 1959 Planning Act where these words are used, although it is his contention that something which is to apply in perpetuity is different from something which is to apply for a limited period of time. I cannot accept as logical what he puts forward. I think it is an ingenious way of getting out of the position in which he might have to admit that this Government were following the excellent example of an Act passed by their predecessors. I am not certain whether my colleagues would not view it the other way round and think that I ought to be explaining why we are using these words and not trying to find different ones.

The noble Lord's Amendment would change one of the circumstances in which a local planning authority can serve a counter notice to a blight notice. The Bill provides that the planning authority can do so if they do not propose to acquire any of the affected land for a period of 15 years. The effect of the Amendment would be to require them to undertake not to do that. In the Government's view this would be an undesirable change. Fifteen years is a long way to look ahead, and I think the best that a responsible public body can be asked to do is to state what they believe the position would be and that they cannot see a likelihood of their having to acquire this land for 15 years. If they gave a binding undertaking, it might be the wrong thing to do. It would be contrary to our idea of flexibility in planning, and therefore it would be unreasonable to require the local authority to give such a firm undertaking when considering their attitude towards a blight notice.

Having said that, I appreciate that the noble Lord's object is not to put difficulties in the way of local authorities but to make it more difficult for a local authority to serve a counter notice in an irresponsible way. After all, it is easier to say that they do not propose to acquire the land in the next 15 years than to say that they will undertake not to acquire the land for the next 15 years.

I would point out to the noble Lord that a counter notice is open to reference to arbitration by the party who has served the blight notice and the arbiter could reject the counter notice if he is not satisfied that the local authority's proposals were firm enough to be founded upon. I have been given some additional words in brackets. I do not know what the legal position is and whether the words are relevant, but they say that it would also seem open to doubt whether any undertaking of this kind, however described, would in practice be more definite than what is meant by a development plan proposal and whether it could be enforced. The planning committee of 1968 cannot bind the planning committee of 1981. This is in fact the principle on which Parliament acts: no Parliament can bind its successor. If local authorities are going to be as successful as we want them to be, we ought not to require them to act in such a way as to tie the hands of their successors. Therefore, I would ask the noble Lord, if he can, to withdraw this Amendment.

LORD BALERNO

May I ask the noble Lord whether this blight notice could affect agricultural land which is part of a farm? If so, it might affect a vital part of an economic unit. If you take away a bit of a farm the whole economy of that farm might fall to the ground. Therefore, I should think that the matter having been under dispute, and if it had been settled in favour of the land remaining on the farm, it would be only right that an undertaking should be given. I am very much inclined to support my noble friend's Amendment.

LORD HUGHES

I must admit that I am a little out of my depth in agricultural matters these days, but I suspect that when considering the effect of blight on agricultural land, one piece of land would not be considered without its effect on the balance of the farm being taken into account. Presumably one must consider the effect of blight on the owner or the occupier using the land. I should like to confirm that, and if the noble Lord is content to leave it on that basis I will let him know in due course. I hope I do not have to tell him that I am sorry I was wrong.

LORD DRUMALBYN

I thank the noble Lord for the explanation he has given. No doubt referring the matter to arbitration is a considerable safeguard. Where there is a position of virtual unmarketability of land, which is what blight means (the affecting of the land in such a way that it becomes much less advantageous to dispose of it) if the local authority are not prepared to acquire it on the ground that the blight is not likely to rest—in other words, that the action which is feared by the applicant is not likely to take place, but that action nevertheless takes place and the individual suffers thereby, whatever may have been the anticipation of the arbiter, then it seems to me that the person concerned should be indemnified.

I see that there is a safeguard here. But if you say that you propose not to acquire the land, or you propose not to do such-and-such, and later you do it, and the result is adverse to the owner or occupier of the land, it seems to me that he should be indemnified in respect of the reason why the action which he wanted to take before has been made impossible. It is a difficult problem to resolve fairly. I think the noble Lord has given a reasonable explanation, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

Clauses 36 to 38 agreed to.

Clause 39 [New provisions restricting demolition, etc., of listed buildings]:

On Question, Whether Clause 39 shall stand part of the Bill?

5.32 p.m.

LORD DRUMALBYN

I want to ask a question about the provisions relating to buildings of architectural and historic interest. A good many of these buildings are in local authority ownership. I should like the noble Lord to explain what protection there is under these provisions for the rights of the public in this respect. Where the buildings belong to a private person, then that person has to get permission to carry out any works. Permission is obtained from the local planning authority, and the local planning authority has to refer the matter to the Secretary of State. But what happens when the building is actually in the hands of the local authority which happens to be the local planning authority or another local authority? Does the matter then have to be referred to the Secretary of State, or can the local authority go ahead on a listed building and carry out any work they like—demolish the building, or whatever it may be? I have been unable to detect in the Bill what happens in those circumstances.

LORD HUGHES

The answer is quite a simple one. In the case where the building is in the ownership of the local authority the local planning authority still have to report to the Secretary of State. So the same position obtains as in the case of a private individual.

Clause 39 agreed to.

Clauses 40 to 46 agreed to.

Clause 47 [Building preservation notice in respect of building not listed]:

LORD HUGHES

Amendment No. 6 is a drafting Amendment. The word "district" is the term customarily used in Scottish legislation to describe an area for which a local planning authority is responsible. The Amendment merely takes account of this. I beg to move.

Amendment moved— Page 44, line 33, leave out ("area") and insert ("district").—(Lord Hughes.)

On Question, Amendment agreed to.

Clause 47, as amended, agreed to.

Clause 48 agreed to.

Clause 49 [Compulsory acquisition of listed building in need of repair]:

LORD DRUMALBYN moved Amendment No. 7: Page 46, line 39, leave out from ("may") to ("acquire") in line 40, and insert ("subject to the provisions of this section").

The noble Lord said: This is a small point. I am aware that the words that I propose to alter are in the English Act, but they read oddly to me. Subsection (2) of Clause 49 reads: Where it appears to the Secretary of State, in the case of a building to which this section applies, that reasonable steps are not being taken for properly preserving it, he may be authorised under this section to acquire compulsorily the building and any land comprising or contiguous or adjacent to it", and so on. One would like to know who is going to authorise him and in what circumstances. It is peculiar wording. I should have thought that the more normal wording would have been that the Secretary of State may, subject to the provisions of this section, acquire compulsorily". This is a straightforward drafting Amendment. I beg to move.

LORD HUGHES

I am full of admiration for the way the noble Lord, Lord Drumalbyn, can light on these things which he finds difficult to understand. I must confess that there are many more things which appear in the Bill that I find difficult to understand beyond those which the noble Lord picks on. But once again he has right on his side, although it will not surprise him in the least when I say that the Government think that he has found the wrong solution. Due to his difficulty in understanding this reference to "authorising", he has proposed to put in this signpost. This is wrong, because if we accept this way of dealing with the matter, we cannot be content with putting up one signpost but shall have to erect similar signposts in various other parts of the Bill.

I must say that the noble Lord, Lord Drumalbyn is right in drawing attention to the queerness of the use of the words, "he may be authorised under this section to acquire", in line 39 and 40, and I accept that this is not wholly appropriate, because there is no authorisation which appears to be in question. What I will therefore undertake to do is to have the subsection re-examined, from the point of view of putting forward a possible Government Amendment at the next stage, which one would hope would put the terms of the clause in a form that will pass the subsequent re-scrutiny of the noble Lord, Lord Drumalbyn, without the necessity of erecting a series of signposts at various points throughout the Bill. I hope that the noble Lord will find this a satisfactory assurance, and will be able to withdraw the Amendment.

LORD DRUMALBYN

I thank the noble Lord and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 49 agreed to.

Clauses 50 to 54 agreed to.

Clause 55 [Directions by Secretary of State to local planning authorities with respect to development affecting Conservation Areas]:

LORD DRUMALBYN moved Amendment No. 8: Page 51, line 28, leave out ("the") and insert ("that person or").

The noble Lord said: This is again a minor drafting Amendment. This point is raised just for curiosity. Subsection (2) says: Different directions may under this section be given to different local planning authorities; and any such directions may require an authority … (b) to supply to any person or body, whom they are required by the directions to consult, specified documents or information enabling the body to form an opinion on which to base their advice. What about the poor "person"? I should have thought that here the appropriate words were: … enabling that person or body to form an opinion on which to base their advice". I beg to move.

LORD HUGHES

Once again the noble Lord, Lord Drumalbyn, has picked up something which is not satisfactory. On this occasion I do not even have the satisfaction of saying that I hope the noble Lord will withdraw his Amendment. I will put it in another form. He has even hit on a perfectly satisfactory way of correcting the matter because, after all, all he is doing is proposing to insert the word which ought to have been there in the first place and was left out by error. I therefore have pleasure in accepting the, Amendment.

LORD DRUMALBYN

I am obliged to the noble Lord.

On Question, Amendment agreed to.

Clause 55, as amended, agreed to.

Clauses 56 to 62 agreed to.

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

5.43 p.m.

LORD DRUMALBYN moved Amendment No. 9: Page 58, line 23, leave out from ("incurred") to end of line 26 and insert ("if in all the circumstances it appears to them to he just and reasonable so to do.")

The noble Lord said: I think there is rather more substance in this Amendment, although the noble Lord, Lord Hughes, may not be quite so ready to agree with it. I should nevertheless like to put the point of it to him. This, clause deals with the delegation of planning functions to officers of local authorities, and subsection (1) lists the matters which may be delegated for decision to officers of local authorities. Subsection (5) deals with actions brought against officers of a local authority to whom local authority has delegated one of the functions.

If an action is brought in respect of an act done by an officer in tae discharge, or purported discharge, of his functions, and damages are awarded against him, as I understand it the subsection gives the authority power to indemnify him in whole or in Fart on certain conditions if the circum stances are such that he is not legally entitled to require the local authority to indemnify him. The conditions are that the authority are satisfied that he honestly believed that the act complained of was done in the discharge of those functions and that his duty required or entitled him to do it. It seems to me that the effect of these conditions is that if the authority does not indemnify the officer, and if the officer is not able to pay the award, the person who has been wronged will not get the damages awarded to him, or will not get them in full; he will receive damages only to the extent that the officer is able to pay them. Surely, this is most unfair. It is the authority who are responsible for delegating the task to the officer. They do not have to do it; they do it on their own discretion. Therefore, the authority should ensure that nobody is worse off as a result of their delegation.

The words suggested in the Amendment do not go so far as to place an absolute obligation on the local authority in respect of the actions of their servants, because of course it may be right in some circumstances to require the officer to pay as much as he can. The words proposed in the Amendment are: if in all the circumstances it appears to them"— that is, to the authority— to be just and reasonable so to do". What these words do is to leave it completely to the discretion of the authority, without being inhibited by having to be satisfied that the officer honestly believed the action complained of was done in the discharge of his functions. I believe that the words proposed in the Amendment are well precedented. I have not been able to find them, but I am sure that I have seen something of this kind several times. It seems to me that the test ought not to be the honesty or dishonesty of the officer, but the need to ensure that justice is done and that the award of the court is carried out. Here is a case where the authority have full liberty to delegate or not to delegate. If they delegate, then it seems to me that they must accept the consequences and back up the person to whom they delegate. I beg to move.

LORD HUGHES

The brief which I have been given has misconceived the purpose which lies behind the noble Lord's Amendment. But, fortunately, that does not in any way affect the reasoning in the brief. In looking at this Amendment we assumed that what the noble Lord was seeking to do was to give the strongest possible security to the officer, and we have not in fact looked beyond the officer to the person who was seeking to he recompensed for the damage which had been done to him by the officer. But, fortunately, if we are increasing the security of the officer in regard to indemnity, we are in fact meeting the point.

We are not disposed to accept the Amendment because we believe that, contrary to what the noble Lord has argued, this will in fact have the result of narrowing the field in which indemnity may be offered. The circumstances in which an officer may be indemnified against a claim for damages or expenses are those which the noble Lord has stated. I should like to put it in these words. The local authority may indemnify if they are satisfied that the officer concerned honestly believed two things: first of all, that he was discharging his functions, and, secondly, that his duty required or entitled him to do the act that has led to the claim for damages or expenses. Generalising the conditions in the way which the Amendment suggests might well have the effect of creating uncertainty both in the minds of the local authority and, what is even more important, in law about whether or not the authority could or should indemnify in a particular case.

As the Bill stands, there is no doubt at all that they can indemnify provided that they are satisfied on these two definite factors; or, to put it another way, the officer can lose his protection only if he knowingly exceeded his duties. But under the Amendment the local authority would have to make a more subjective and imponderable judgment. For example, without the guidance of the specific words in Clause 63(5), an authority might well decide in a case in which the officer had acted stupidly that it would not be reasonable to indemnify him, even if he honestly believed that he was discharging his functions, and even if he honestly believed that he was doing his duty. They might infer, rightly, that they would in fact be exceeding their powers if they proceeded to indemnify an officer for an act of stupidity. But, as the clause stands, the local authority would be right to indemnify an officer, although he acted stupidly, if he honestly believed that he was doing the job he had to do and that he was under a duty to act as he did.

This is a case where the rights of an individual claiming damages or expenses lie exactly in the same direction as the rights of the officer. The greater the extent to which the officer is indemnified against these claims, the greater the likelihood that the individual will be able to collect the damages to which he is entitled. There may be cases where an officer is not indemnified and he may be in a financial position to pay what is so awarded. In those cases the noble Lord would not be worried. He is concerned about the cases where substantial damages might be awarded which were beyond the financial capabilities of the officer. If the local authority did not indemnify that officer this would be a wrong against the individual who had successfully rased an action and then was unable to get it implemented, either in full or in part.

I have gone fully into this matter and I am convinced of the rightness of the wording in the Bill: that what it does will be a greater safeguard, both to the claimant and to the individual, than the more general wording implied in the Amendment. In fact it will be difficult for the local authority not to indemnify in terms of the wording of the Bill. Therefore I invite the noble Lord to withdraw the Amendment.

LORD STRATHCLYDE

But surely in all cases the local authority is responsible for the actions of its servants. I thought this was a maxim of law that stood in all cases.

LORD HUGHES

No, my Lords, the local authority is responsible for the actions of its servants properly undertaken.

VISCOUNT STONEHAVEN

Am I living in a complete fool's paradise? I thought this was the reason one took out a fidelity insurance guarantee policy, to cover the actions—stupid or otherwise—of the servants of a local authority. Is this not so?

LORD HUGHES

Possibly it is, but I am pointing out that the terms of the Bill would make, it proper for the authority to indemnify even where the official was stupid, whereas the Amendment might make it improper for the local authority to do so if they said, "This man was not undertaking his duty properly, therefore we will not so indemnify".

Let us be clear about this. The use of the words "an officer acts stupidly" might be interpreted as a slur on local government officers. It is not so intended. In a number of cases where an officer does something which results in damage to an individual because the officer has acted wrongly in some way, the local authority itself may have acted equally wrongly, and therefore it is right that the authority itself should be responsible for paying the compensation and the damages. We are seeking to ensure that this is done on the widest possible basis, so that there is neither injury to the claimant nor to the official, but that the local authority should carry the responsibility in every case where it is reasonable for it to do so.

VISCOUNT STONEHAVEN

But am I not right in thinking that it is possible for a local authority with this responsibility to comply with it by "laying it off" by means of insurance?

LORD HUGHES

Yes; and I should think in many cases this would be done. But the noble Viscount will know from his own experience of local authority matters that there are many fields in which the local authority acts as its own insurer because its financial resources are sufficient to enable it to cover everything but the most major catastrophes.

LORD DRUMALBYN

I recognise the force of the noble Lord's argument, and I hope that he will equally recognise the force of mine. I think the right course may lie somewhere between the two. Apparently I took the noble Lord unawares because of the angle Iron which I approached this Amendment. But surely this is the right attitude from which to start: that if an award is made by the courts against an officer, then in such a case that award should be met. It does not matter whether the act leading to the claim was done by the officer acting ultra vires or dishonestly. That has nothing to do with the case. The award should be met, and that is our objective. As to how far the officer is indemnified, that is another matter. I would ask the noble Lord to look at this again, to make certain that in all cases, and not just in most of them, an award of this kind will be met by the local authority which has appointed the officer and is therefore responsible.

LORD HUGHES

I should be quite happy to do this—and in fact I feel that it would be wrong to do otherwise—but the noble Lord is now asking me to go even beyond the terms of his Amendment. His Amendment does not envisage that indemnity would be given in all cases. He enters this caveat: if in all the circumstances it appears to them to be just and reasonable so to do". In the first place this contemplates the possibility that there are circumstances in which indemnity will not be given. Looking at it from a lay point of view, one would say "appears just and reasonable" to whom? Just to the ratepayers? Reasonable to the ratepayers? Just to the individual claimant? Reasonable to the individual claimant? Just to the officer? Reasonable to the officer? Just or reasonable to some impartial person outside? It brings in a whole host of imponderables. However, I am willing to look at it again, because there is nothing between the noble Lord and the Government in what we are seeking to do, which is to ensure that indemnity covers the widest possible field.

It would be wrong for me to undertake that in all circumstances the local authority must be required to indemnify, because unless the noble Lord has completely changed his mind on this, his Amendment does not go so far. I am prepared to go with him along the road that the number of cases where there should not be indemnity should be kept to the unavoidable minimum. We should go as far towards a complete indemnification as is reasonable, but we should try to get it in some specific form of wording so that in trying to widen the security we do not—as my advisers tell me this Amendment does—narrow the security which is given to both sets of individuals.

LORD DRUMALBYN

I tried to make it clear that I thought that the right solution lay between my position and his. I was not arguing in favour of my Amendment. Obviously, if an officer has been culpably dishonest then he should pay as much as he can; but when he cannot pay the lot the authority should make up the difference. The point is that the award should be met. That is why I do not think it would be right to say that the officer should be indemnified in full. I see the force of the noble Lord's argument and I see that authorities might not interpret the words I have put down in the way I should like them to and think they ought to. May we leave it at that, and perhaps the noble Lord would be good enough to have a further look at it. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 63 agreed to.

Clauses 64 to 90 agreed to.

Clause 91 [Powers for local planning authorities analogous to s. 46 of Act of 1947]:

6.2 p.m.

LORD DRUMALBYN moved Amendment No. 10: Page 82, line 29, after ("order") insert ("being a person who will benefit directly from the development").

The noble Lord said: We are here dealing with powers of planning authorities with regard to stopping up or diversion of any footpath or bridleway, and this subsection says: An order under this section may, if the local planning authority are satisfied that it should do so, provide— (d) for requiring any person named in the order … and then these words would be inserted, "being a person who will benefit directly from the development"— to pay, or make contributions in respect of, the cost of carrying out any such works. It seemed to me that it was quite possible that persons might be named in the order who were not likely to benefit directly from the development. Equally, if they were not likely to benefit from the development, then in the case of a stopping up order of a footpath or bridleway there seemed no reason why they should be required to make a contribution to the cost of the works. I think this is a simple Amendment. I beg to move.

LORD HUGHES

The noble Lord said this is a simple Amendment. The subsection which it is proposed to amend enables a local authority when making an order authorising the stopping up or diversion of a footpath or bridleway to order a named person to pay, or make contributions to, the cost of the works. The effect of the Amendment would be to qualify this power by providing that the person named must be one who will benefit directly from the development which is enabled by the stopping up or diversion. We do not think this qualification would be appropriate. The main purpose of the power is to make it possible for a developer to be required to defray the cost of a stopping-up or diversion which is being carried out in his interest, but there could be a case in which a diversion could take two forms, one of which would incidentally or indirectly benefit other parties than the developer whose development set the process in train. It would be wrong for this more useful solution to be ruled out for want of any means of ensuring that those who benefited indirectly would pay their appropriate share of the cost.

There is no fear of unfairness or unreasonableness in the exercise of this power. An order under Clause 91 if it is opposed car not take effect until it is confirmed by the Secretary of State, and before confirming the order the Secretary of State must give the usual opportunity for representations, a local inquiry, a report by a person appointed and so on. There is ample protection, therefore, against any misuse of the power and there is no need to qualify it in the Act. Even if we thought that it was necessary to remove the theoretical possibility that a person unaffected by the stopping-up or diversion could be named, it is very difficult. The words "directly or indirectly", for instance, are so wide as to be almost without effect, and any more detailed definition seems likely to be too involved.

However, in considering this Amendment we have noticed a possible defect in the provisions of Schedule 6 which may be helpful to the noble Lord, because that Schedule sets out the procedure for orders under Clause 93. Paragraph 1(2) of the Schedule requires notice of an order to be served on various parties—owners, occupiers, lessees, public authorities and statutory undertakers—but there is no requirement for service on a person named in the order under Clause 91(2)(d). To some extent this may be taken as confirmation of the fact that it is not expected that parties not directly affected would be named. However, we propose to examine the possible need for a requirement of service of the notice on any person so named, and I think that if we come to the conclusion that he should be included in those to be named under the Schedule this may go some way towards meeting the noble Lord's point. I expect to be putting down an Amendment to Schedule 6 at the next stage. I hope, therefore, that the noble Lord will find it possible not to press this Amendment.

LORD DRUMALBYN

I am grateful to the noble Lord, and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 91 agreed to.

Clauses 92 to 106 agreed to.

Schedules 1 to 3 agreed to.

Schedule 4 [Control of works for demolition, alteration or extension of listed buildings]:

6.9 p.m.

LORD DRUMALBYN moved Amendment No. 11: Page 103, line 24, leave out from ("period") to ("shall") and insert ("and the Secretary of State shall notify the owner or lessee and the authority on whom the notice was served of the date on which the notice is deemed to have been confirmed and thereupon the authority").

The noble Lord said: This is a rather more complicated matter and I approach it with some diffidence. This Part of the Schedule is headed "Proceedings on Listed Building Purchase Notice", and deals with a requirement when a listed building consent is refused—if that is the right expression—that the local authority shall purchase in circumstances where the use of the land cannot be made beneficial either as a result of the refusal of the application or the attachment of Conditions. It says: If, before the end of the relevant period"— which is a period described in subsection (3), that of nine months beginning with the date of the purchase notice, or of six months beginning with the date on which a copy of the purchase notice was transmitted to the Secretary of State, whichever first expires— the Secretary of State has neither confirmed the purchase notice nor taken any such action in respect thereof as is mentioned in subparagraphs (3) to (6) of paragraph 13 above"— which are the various things that he may do instead of confirming— and has not notified the owner or lessee by whom the notice was served that he lees not propose to confirm the notice, the notice shall be deemed to be confirmed at the end of that period"— and then come the words that it is proposed to leave out: and the authority on whom the notice was served shall be deemed to have been authorised to acquire the relevant interest compulsorily in accordance with the provisions of Section 49 of this Act …

I should be grateful if, to start with, the noble Lord can explain this rather curious procedure. It seems to me that if the Secretary of State either does not like to be bothered to deal with this matter or loses the papers, or something like that, then at the end of a certain period the notice shall be deemed to be confirmed. I have never before heard of a procedure of this kind so far as the Secretary of State is concerned. The idea that he should do nothing and then, through his doing nothing, the notice should be deemed to be confirmed, to say the least of it, seems most unusual.

What the Amendment seeks to do is to say that this notice shall be deemed to be confirmed at the end of the period, and then there should appear the words: and the Secretary of State shall notify the owner or lessee and the authority on whom the notice was served of the date upon which the notice is deemed to have been confirmed and thereupon the authority shall be deemed to have been authorised to acquire the relevant interest compulsorily … This, at least, would make clear that the Secretary of State is not acting by inadvertence in this matter, or that the confirmation is going through because the Secretary of State has not bothered to deal with the matter. I find this a rather curious precedent to establish. I do not know whether there are any precedents of this kind, but at any rate the Amendment would require the Secretary of State to take some action, in the words of the famous story, "even if it is only to say 'Goodbye'". I beg to move.

6.14 p.m.

LORD HUGHES

The noble Lord's recollections in this matter are not so good as they usually are. He has said that he has never heard of this procedure. It is the procedure which exists under the 1947 Act and which was so acceptable that it was confirmed in the 1959 Act; so at least he was a party to it on one occasion—on the second occasion by commission and on the first occasion, perhaps, by omission. But, quite frankly, I cannot understand the Amendment. I know that this was one of the conditions suggested by the Scottish Landowners' Federation, because I, too, received the document. They do not make secrets in these matters. We just do not know why they want this Amendment. They seem to be seeking to act against their own interests in this matter.

Let us examine the position. If there is a purchase notice the Secretary of State can confirm it or reject it. The Landowners' Federation are not seeking to do anything to encourage the Secretary of State to reject a purchase notice; it is in the interests of their members that a purchase notice should take effect. It does not seem to me to matter in the slightest whether the purchase notice takes effect because the Secretary of State does nothing, or whether it takes effect because he confirms it. I could have, understood the Amendment if they had said, "Why should we have to wait nine months or six months?; let us have it for six months and three months", or "three weeks and two weeks." But they are not asking for it to be expedited, but in fact to say that at the end of the period of nine months or six months, whichever is the earlier, the Secretary of State will say that the notice is deemed to have been confirmed; not that the Secretary of State will say it has been confirmed, but that it has been deemed to be confirmed. In other words, all that they are asking is that the Secretary of State will say at the end of the period, "I'm sorry, boys, I have forgotten about it; but you will have exactly the same result as if I had acted upon it and confirmed it."

There may be a whole variety of reasons why the Secretary of State may not have acted during this period, even including the one that, for some extraordinary reason which I cannot foresee, it has not even reached him. In those circumstances, it is much in the interests of a landowner that at the end of a specified period or periods of time he has the protection that, if no decision has been taken for or against him during that period, the right to act against him automatically lapses and the purchase notice takes effect. I can think of nothing more favourable to the person having the benefit of a purchase notice than the putting in of this provision that at the end of a given period he is automatically deemed to have his purchase notice confirmed.

I am quite certain that the Scottish landowners are a fair body of people, but I am equally certain that the reason why they put forward this Amendment was not because they were worried about the reputation of the Secretary of State. They were not worried about the possibility that people would say "Goodness! this is because the Secretary of State has forgotten all about it and it is taking effect now just because he has done nothing. "They must think there is some advantage to them in this procedure and, if there is any advantage which can be given to them by doing what they want and which we have been unable to find, I am quite prepared to have a look at it. But there is the possibility that they might in some cases lose, whereas, so far as I can see, in no case can they lose at all by what is in the Bill.

I would therefore suggest to the noble Lord that he should withdraw the Amendment and endeavour to find out exactly what the Scottish Landowners' Federation are after. At least he can justify going back to them on the basis that the Government are as ignorant as he is as to what they are getting at. If there is a useful purpose then by all means he can bring it back. I may say, in this connection, that the provision in the Bill has much in common with the Planning Act purchase notice procedure on both sides of the Border. This is in Section 17 of the 1947 Act. At the moment we are reconsidering certain aspects, and it may well be that when we are looking at the wider context we shall also be looking at this particular point.

For the life of me, however, I cannot see that any reconsideration of this point would be other than against the interests of the landowners. It may be that we are being obtuse and that there is some obvious point that they are after which we have quite failed to see. If there is a useful purpose I would invite the noble Lord to have another go at it after he has elicited what is behind it.

6.20 p.m.

LORD DRUMALBYN

I shall willingly accept the noble Lord's invitation. It may be that the Scottish Landowners' Federation, to whom, as he quite correctly thought, I am indebted for this Amendment—if that is the right expression—

LORD HUGHES

I would not have used the word "indebted" in the circumstances.

LORD DRUMALBYN

—were in the same error as I myself in thinking that this was something quite normal However, I will certainly find out what is behind it, and if there is any substance behind it I can refer to it at the next stage. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 4 [Control of works for demolition, alteration or extension of listed buildings]:

On Question, Whether Schedule 4 shall stand part of the Bill?

LORD DRUMALBYN

May I ask a question about Schedule 4? This question of listed building consents can give rise to quite a lot of trouble. There is one point I would raise on this, that is, that under paragraph 3 if the Secretary of State calls in an application, then there is no appeal. He himself considers it, and his decision under paragraph 3(5) is final. It is very important to make certain—and one knows from one's own experience in the Scottish Office long ago how important this is—that the right people are consulted at the right time. I should like to ask what it is that will govern the Secretary of State's consent to call in applications for consent in such cases. Is it purely a matter of public interest or of the importance of the building? I should like to know on what this would be based.

I should also like to ask a question about paragraph 7, which says: Where an application is made to the local planning authority for listed building consent, then, unless within the prescribed period from the date of the receipt of the application, or within such extended period as may at any time be agreed upon in writing between the applicant and the authority, the authority either—

  1. (a) give notice to the applicant of their decision on the applications; or,
  2. (b) give notice to him that the application has been referred to the Secretary of State in accordance with directions given under paragraph 3 of this Schedule,
the provisions of paragraph 6 of this schedule shall apply in relation to the application as if listed building consent had been refused by the authority … There are so many periods that are to be prescribed in the course of this Bill that I should think it is going to be very difficult to keep track of them all. But this one, I should have thought, was fairly important, and I wonder whether the noble Lord can give me some indication of what sort of period is likely to be prescribed in a case like this. Here the presumption, of course, is that the consent has been refused by the authorities. It is the opposite presumption from the one we were considering earlier. I wonder whether the noble Lord could explain that.

Those are the main points that I wanted to raise on this Schedule. It is a complicated and important Schedule. Of course one knows how very much public interest there is in the preservation of what are now to be called by the unpleasant phrase "listed buildings" (it makes one think a little of the Leaning Tower of Pisa), and I think it is very important that this should be very carefully studied.

LORD HUGHES

The noble Lord was not so kind on this point. He did not give me notice of his intention to raise it, and I must admit that I was well pleased about this section of the Bill, in relation to these buildings. I thought it was going so far to meet the requirements and the wishes of those interested in preserving buildings that all we should get for this would be commendations rather than questions.

It is difficult to be precise about what would govern the Secretary of State's decision to call in a particular case, but in general terms it would be affected by the importance of the building and its environment, perhaps the likelihood of controversy—in short, as the noble Lord himself put it, that delightful phrase which covers so many things, "the public interest". Obviously, sometimes controversy is likely to arise. There can be circumstances in which locally the local authority are pulled two ways. There may be the desire to protect the building, the protection of which may be very much in the national interest as distinct from the local interest. On the other hand, there may be a contrary pull on the local authority which would be very much in the local interest, but which would be of no particular appeal from a national point of view.

In these circumstances, the Secretary of State might decide that the national interest might not be given the weight it fully deserved, and that in these circumstances he, with his responsibilities, both local and national, was in a better position to arrive at an impartial and right decision than could be arrived at locally. That is one particular set of circumstances, but I must come back in the end to the words which the noble Lord himself suspected I might use, "in the public interest".

As to the time limit, we have not yet decided what these limits should be, and I hope the noble Lord will not press me to make a forecast, because if I did it would not be a forecast at all, but merely a guess; and if we are going to enter into guessing games he is just as able to guess himself as to ask me to do it.

LORD DRUMALBYN

I am grateful to the noble Lord, but he has not answered my last point as to why the result of inaction, so to speak, in the case of paragraph 7 on the part of the local authority with regard to the application, is the opposite of the result of inaction on the part of the Secretary of State in paragraph 14 of Part III of the Bill.

LORD HUGHES

I should like to look at this. Sometimes the right thing to do is to act on positive factors, and sometimes it appears to be more correct to act on negative factors. Quite frankly I cannot, offhand, say why in the one case it is a positive which appears the right way, and in the other one it is the negative, but I will inform the noble Lord as speedily as possible, so that if he thinks there is any value in consistency in this matter he can seek to introduce it. I ought to know the answer to this question but it really has slipped my mind. I think this is a case where consistency would produce the wrong result, but I cannot guarantee that.

LORD DRUMALBYN

I am grateful to the noble Lord and I must apologise to him for not giving notice of this particular point. He probably can diagnose the reason why—that I did not think I was going to have to deal with this particular Schedule.

Schedule 4 agreed to.

Schedules 5 to 7 agreed to.

Schedule 8 [Adaptation and Interpretation of Enactments, etc.]

LORD HUGHES

This is purely a drafting Amendment to correct a printing error. I beg to move Amendment No. 13. Page 114, line 3, leave out ("22(1)") and insert ("22(2)").

On Question, Amendment agreed to.

LORD HUGHES moved Amendment No. 14: Page 117, line 36, after ("requirement") insert ("or on requirement as to operations to be carried out").

The noble Lord said: The brief which I have been given on this Amendment says "The purpose of this Amendment is to assist the reader by describing with greater accuracy the content of section 17(2) of the Building (Scotland) Act 1959 which deals with alteration and extension as well as with demolition of property. The Amendment in no way alters the effect of paragraph 36 of Schedule 8 to the Bill. "This proves conclusively that those who draw up these Bills do not always set out with the purpose of seeking to confuse people. They generally intend to make a Bill as intelligible as possible. I beg to move.

On Question, Amendment agreed to.

LORD HUGHES

Amendment No. 15 is a drafting Amendment to correct a printing error. I beg to move.

Amendment moved— Page 119, line 36, leave out first ("of") and insert ("to").—(Lord Hughes.)

On Question, Amendment agreed to.

Schedule 8, as amended, agreed to.

Schedule 9 agreed to.

Schedule 10 [Enactments repealed]:

LORD HUGHES moved Amendment No. 16: Page 125, line 31, after ("24(7)") insert ("subject to the exception in section 69(3) of this Act").

The noble Lord said: The effect of this Amendment is to qualify the repeal of Section 24(7) of the Town and Country Planning (Scotland) Act 1945 which appears in Schedule 10 to the Bill. Section 24(7) of the 1945 Act provides that where an order under subsection (4) or (5) of Section 24 extinguishing a right of way or rights of statutory undertakers in respect of apparatus under certain land is duly made and not withdrawn before the making of the order, the order shall be provisional only and shall be of no effect until confirmed by Parliament. Clause 69(3) of the Bill provides that certain provisions (including Section 24(7) of the Act of 1945) shall cease to have effect. As a result of this provision an order under Section 24(4) or (5) shall no longer be subject to Special Parliamentary Procedure. The sole exception is in respect of an order made before the commencement of Clause 69 of the Bill. The Amendment takes account of this exception in favour of orders which have been made before. It was not intended that they should lose the benefit which they have at present, and this Amendment puts the matter right. I beg to move.

On Question, Amendment agreed to.

Remaining Schedule, as amended, agreed to.

House resumed: Bill reported, with the Amendments.