HL Deb 07 December 1976 vol 378 cc531-46

3.17 p.m.

The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)

My Lords, I beg to move that this Bill be now read a second time. The Bill has several main purposes. First, it puts right some technical flaws in Scottish planning law relating to the preparation and adoption of local plans. Secondly, it clarifies the right of appeal against decisions of regional planning authorities on applications for planning permission. Thirdly, it strengthens enforcement powers under the Town and Country Planning (Scotland) Act 1972. It is a short Bill, confined to a few urgently needed improvements, and the Government do not intend to make extensive changes in the planning system in Scotland at this stage. The proposed new Scottish Assembly will have power to legislate on planning matters and will no doubt have its own ideas on the kind of planning system appropriate to the needs of Scot land after devolution. It is clearly the Government's duty, however, to ensure that the planning machinery inherited by the Assembly is both workable and rational. That is what this Bill seeks to achieve.

Your Lordships will appreciate that there are fundamental differences between the formal structure of the organisation for planning in Scotland on the one hand and in England and Wales on the other. It may be useful to summarise the main points briefly. First, district and general planning authorities have a duty in Scotland to prepare local plans throughout their areas. Secondly, structure plans may not necessarily be prepared for all areas in Scotland. Thirdly, regional reports have been prepared by all regional planning authorities and districts must have regard to them and to the Secretary of State's comments on them. This is quite different from the emphasis in England and Wales on structure plans as the fundamental expression of policies and proposals for development.

I turn now to the main provisions of the Bill. The main provision of Clause 2 of the Bill corrects an anomaly arising in connection with the duty placed on district and general planning authorities to prepare local plans to cover their areas. Under Section 12(2) of the 1972 Act as it now stands, The planning authority shall not adopt a local plan unless it conforms generally to the structure plan, as approved by the Secretary of State. If there is no approved structure plan, there can be no adoption of a local plan. I should perhaps explain that, whereas structure plans require the approval of the Secretary of State, local plans are to be adopted by the planning authorities which prepare them. Now it is clearly illogical to require that "the planning authority shall not adopt a local plan unless it conforms generally to the structure plan" when, for many areas, no structure plan will exist for some years to come because regional reports have been prepared, and in some cases none will be drawn up at all. The new wording set out in subsection (3) of Clause 2 is intended to remove this restriction which prevents authorities from adopting local plans.

Local plans are urgently needed in many parts of Scotland—in areas of oil-related expansion, conservation areas and perhaps most urgently in the decaying hearts of our cities. Where local authorities are faced with very difficult decisions imposed by financial constraints it is vital that planning should not be held up by technical anomalies. Forward planning is essential if authorities are to sort out their priorities and make the best use of the limited resources available. Local plans provide a framework for both public and private development, and productive industry must be freed from uncertainty over planning. Only the preparation of new plans to replace the existing, mostly out of date, development plans will achieve this.

Clause 2 will allow authorities to adopt local plans where no structure plan currently exists. There is no intention, however, to give districts in Scotland a free hand at the expense of regional objectives. Whether or not there is an approved structure plan in existence, the regional planning authority will naturally take a close interest in the local plan, and the local plan will need to take account of the policies and proposals of the regional planning authority. The most important of those policies and proposals will be set out in the regional reports which provide the framework for local plans in the absence of structure plans. If there is a structure plan in preparation or awaiting approval, the district planning authority who are preparing the local plan must secure that it conforms generally to the structure plan as it stands for the time being. This is required by Section 9(9) of the 1972 Act, as modified by Clause 2(1)(b) of the Bill.

The Government naturally hope that regional and district councils will work in partnership to operate the new development planning system, and that informal arrangements for co-operation will minimise the need for formal controls. Nevertheless the opportunities for statutory intervention by the regional planning authority in the local planning process do exist. First, where there is no approved structure plan the consent of the regional planning authority is required before a local plan can be prepared. At that stage it is open to the region to give detailed guidance to the district to supplement the regional report. Secondly, the district planning authority will be required by regulations to consult the regional planning authority in its preparation of the plan. Thirdly, the regional planning authority will have the chance to object to the published plan and to be heard at any public inquiry held by the district planning authority. Fourthly, if it is not satisfied with the plan in the final form in which the district planning authority propose to adopt it, the regional planning authority will be able to ask the Secretary of State to call in the plan for his own decision or, in certain circumstances, will be able to take over the preparation of a local plan itself. These reserve powers under which regional planning authorities may assume the functions of the districts in making local plans are set out in Section 177 of the 1973 Local Government (Scotland) Act. They apply where the local plan is out of step with an approved structure plan, where the plan may affect or hinder development in another district, or where a local plan is needed urgently to fulfil an objective in the structure plan, and the district have failed to adopt an appropriate plan. Ultimately any conflicts between district and region which cannot be resolved by the planning authorities themselves will come before the Secretary of State for resolution.

Thus, there is no question of a district planning authority being able to adopt a local plan which the regional planning authority has had no opportunity to influence, nor a plan that conflicts with regional planning policies as set out in regional reports and structure plans unless the Secretary of State, as final arbiter, decides that it should be allowed to do so. However, as I have already said, the Government expect planning authorities to work in partnership and the Secretary of State hopes that he will rarely, if ever, have to resolve conflicts between them.

The Bill contains other, minor, amendments relating to local plans. Subsection (1)(a) of Clause 2 makes it the duty of the planning authority to conduct a survey of the relevant area before preparing a local plan and to keep the survey matters under review. Surveys are required by the 1972 Act, but this duty was allocated in the 1973 Act to regional and general planning authorities and not to districts. Of course in practice all planning authorities carry out surveys as an integral part of the preparation of plans. It is, however, desirable that the duty should be spelled out, and this has been done in general terms in the Bill. In the Government's view, there is no reason why this should involve authorities in additional work. Provision is also made in Clause 5 to simplify arrangements for the transition from old development plans to structure and local plans. At present, an individual revocation order has to be made by the Secretary of State to discontinue the provisions of the old development plan each time a new local plan is adopted. Clause 5 now discontinues the old plans automatically with consequential savings in time and effort. It remains open to the Secretary of State to direct where necessary that part or all of the provisions of the old development plan shall continue in force.

My Lords, I have described at some length the provisions which this Bill makes with regard to local plans. I had to do so because the subject is complex, and I hope what I have said will help to clarify the Government's intentions in making these amendments. I will now go on to deal quickly with the other parts of the Bill. The first of these, Clause 3 provides a right of appeal to the Secretary of State against decisions of regional planning authorities where they have called in planning applications. The 1973 Act gave regions similar powers to the Secretary of State in these cases, but did not give them the power of final decision. The appeal machinery in the 1972 Act was not applied to decisions of regional planning authorities. It is clearly inequitable that an applicant should be denied the right of appeal to the Secretary of State, which he would normally enjoy if planning permission were refused simply because the region has intervened.

The Bill applies the appropriate sections of the 1972 Act to decisions of regional planning authorities, with one important modification. The region is obliged, where it has called in an application, to offer the applicant and the district planning authority the opportunity to be heard at an inquiry. Where this has been done, the additional time, effort and expense involved in a second inquiry to go over the same ground where the case comes before the Secretary of State on appeal would seem unjustifiable. The Bill relieves the Secretary of State under these circumstances of the obligation to hold a second inquiry. Clause 3 also provides for an appeal to the Secretary of State where the region fails to come to a decision within three months of the date of calling in the application.

Finally, my Lords, the Bill makes provision to widen the scope and effect of stop notices served after an enforcement notice has been served under Section 84 of the 1972 Act. When stop notices were first introduced in 1969, they were intended to prevent building operations from continuing while any appeal against an enforcement notice was pending. The appeal proceedings could take some time, and in the meantime a building which was perhaps only just begun when the enforcement notice was originally served could be completed by the time the appeal was decided. This could lead, where the appeal was refused, to demolition and consequent waste of resources. Serving a stop notice prevents the unauthorised operations from being continued while an appeal is determined, but the present scope of activities subject to stop notices is limited and excludes changes in land use. Recent experience has shown that the main problem now consists of new unauthorised uses of land, which cause nuisance to neighbours and can give rise to traffic and other problems. These include open-air markets, scrapyards, car sales pitches and so on. Operators have nothing to lose if they continue in business while the appeal against the enforcement notice is pending, and even if the appeal fails, they can simply move on to another site and carry on as before.

The Government consider that measures should be taken to curb these activities, and the Bill therefore extends the scope of stop notices to cover all breaches of planning control, including changes of use and flouting of conditions attached to planning permission. To bring all those involved—such as market stall-holders and people who dump refuse, as well as the site owners—within the scope of the stop notice without having to serve individual notices on each and every person concerned with the activity, the Bill provides for the posting of site notices. These must be displayed clearly at the site stating that the stop notice has been served and setting out its requirements. This can be done only once the relevant enforcement notice and stop notice have been served on those primarily responsible. It will be an offence to carry out an activity prohibited by a site notice. All permanent residential uses of buildings and land are exempted from the stop notice powers to prevent hardship resulting from, for example, evictions. As a consequence of the extension of stop notices to include changes of use of land, the Bill makes some minor changes in the provisions of the 1972 Act for compensation, rights of entry on to land, and the power of the planning authority to require specified information from occupiers and others.

My Lords, the proposals in this Bill are modest, but they are vitally necessary to ensure the smooth operation of the Scottish planning machinery. Many other less urgent improvements could have been included in a longer Bill, but the Government feel that it would be inappropriate to take up very much Parliamentary time on these matters in the same Session as the Bill which will give power to legislate on Scottish planning to a Scottish Assembly. In the Government's view this Bill contains the minimum amount of change needed to cope with current problems which have emerged in the past few years. I hope that the Bill will receive support —indeed, I am sure it will—from all sides of your Lordships' House, and I beg to move.

Moved, That the Bill be now read 2a.—(Lord Kirkhill.)>

3.33 p.m.

Lord STRATHCONA and MOUNT ROYAL

My Lords, like the Bill we dealt with previously, this Bill appears to be a non-contentious piece of legislation, which I am sure the Opposition can welcome as a piece of sensible, tidying-up legislation. Indeed, as the Minister has said, and as is mentioned on the face of the Bill, it seeks to sort out anomalies that have arisen in changing from the concept of development plans to the new system of structure plans and local plans. Without in any way wishing to pre-empt what I have no doubt will be fairly protracted discussions on the issue of devolution when it eventually reaches this Chamber, I believe that this Bill gives us a useful opportunity to look at the state of the art of planning in Scotland, and it gives us a chance to extract from the Government some of their thinking on how they envisage the details operating regarding the relationship between the planning authorities in the districts and the regions, and the Assembly when we finally get it, at least so far as Scotland is concerned.

I think that I ought to try to deal with the provisions of the Bill in three parts. The first part concerns the Clause 2 amendments to the two previous Acts, dealing with the question of structure plans. If we did not know it already, I think that we can genuinely say "Amen" to what the noble Lord said about these issues being fairly complex. It will be very useful for us to read the noble Lord's not uncomplex speech which I hope will clarify the situation for us slightly before we reach the Committee stage. Therefore I hope that the noble Lord will forgive me if I say that while we think it sounds fine, we must have a good look and see whether we still think so after we have read in detail what he has said. But, clearly, anything at this present time which results in a saving of time and effort is something that we should want to support.

I now turn to the question of structure plans. I do not think that it was ever anticipated that the new regions would be able to produce their structure plans within a matter of months of their coming into existence, and perhaps we had better not go into the question of whether or not we think it was a happy thing that they did come into existence. But there they are, and clearly it is ridiculous, as the noble Lord explained, to say that local plans cannot be adopted unless they are in line with structure plans, if in fact no structure plans exist. I think that this was one of the major anomalies that the noble Lord was seeking to eliminate.

I was not totally clear whether the amendment under the Bill now allows these local plans to go ahead whether or not a structure plan exists, but I understood the noble Lord to say that where there is no structure plan it will at least be possible for us to proceed. But I put it to the noble Lord that it might be helpful if, before the Committee stage, he could give us a round-up of the state of play regarding structure plans in the regions. I think that we are dealing with nine or ten regions, and we have this anomalous non-region for the Western Islands which I believe is the planning authority in that area. I wonder whether it would be possible for the noble Lord to produce a small table in the report, indicating what stage we have reached in preparing structure plans. I take it that in some cases there is no intention at all of producing a structure plan in the foreseeable future. I suppose that in other cases the structure plan already exists. It might be quite a useful basis if we could have a summary of where we are, and where we are intending to go on this question, before we get to the Report stage. But clearly the intention here must be a sensible one.

Now I turn to the appeal procedure. Here again, what the noble Lord said sounds right enough—that the Secretary of State would not want to hear the same case twice over and have all the same evidence being repeated in the case of an appeal. But this raises a query in my mind. Again, this may simply be a lack of understanding on my part, but does this mean that the regional planning authority will now be able to go ahead with planning permission in circumstances where it has decided against calling in the proposal? Furthermore, does this in effect mean that it will actually cut short the appeal processes?

I quite understand that the same appeal is not going to be repeated twice over, but I am not totally clear whether this means that one element in the appeal processes is cut out altogether. Here again we have to ask the Government what is their view as to how this works under the new proposed Assembly set-up. The Secretary of State is currently the final arbiter in most of these cases. If the Assembly is inserted between the regions and the Secretary of State, is it envisaged that the Assembly will be the final arbiter, or the Secretary of State the final arbiter, or both as being the final arbiter?

I hope it does not sound as if I am trying to ask a lot of purely tautological bureaucratic questions, because that is not my purpose at all. But the noble Lord will be very well aware that one of the big concerns of all of us about the whole of the devolution proposals is that we see a tremendously long chain of government. How many layers are we going to have? Are we going to have local government, regional government, the Assembly, Westminster and then Brussels, with all these things having to go up and then all the way down again? For instance, I know that the Highland Development Board officials already make visits to Brussels from time to time to talk about the various grants they can get for local developments. I am not expecting the noble Lord to give a definitive answer on issues of this kind, because I doubt whether there is one; but if he can give us some idea as to how the Government's thinking is progressing I am sure this will be helpful to us. And if this provokes a certain amount of argument at the Committee stage I do not think it will necessarily be any the worse for that, because I believe it is a genuine argument and I hope that it is not a particularly partisan one. So we should like to hear a little more about that.

Now we move on to the stop notice, and, here again, if this is a faster, handier and more efficient way of enforcement, then basically this is something which we are bound to support. I have to say, however, that one always looks slightly askance at any legislation which greatly strengthens the hand of officialdom. I think we should regard that with a proper degree of suspicion: if we did not, we would not be doing our job. But if development has gone ahead and the detailed planning permission has been subject to certain specific conditions, and if these conditions are obviously not being fulfilled, then it is perfectly plain that the local authority or the regional authority, or whatever is the appropriate authority, is simply not doing its job if it allows such development to continue: either that the provisions should not have been inserted in the first place or we must clearly see that they are enforced. It is obviously intolerable that developers should be able to thumb their nose at authorities which have given permission or have imposed conditions by not adhering to those conditions.

I am not entirely clear whether the powers of entry are being extended for the purpose of checking on the enforcement of a stop notice. I would rather imagine that that is intended to be the purport of this Bill. I said that this raises a couple of doubts in one's mind. For example, is there any danger that these enhanced powers could be used by the planning authorities effectively to reverse a previous planning decision in the guise of simply saying that certain conditions had not been adhered to? It is very difficult not to sound as though one is trying to be unduly suspicious of officials, but our minds do change. We sometimes feel that we wish we had not taken certain decisions or given certain permissions in the past; and one inevitably, I think, could be slightly concerned lest these additional powers were used to get out of any awkward situation where permission had been given which, looking back, one regretted.

I am very glad that the noble Lord said that he was producing a short Bill rather than waiting for a longer Bill. We have had one or two longer Bills to deal with in the recent past—and the less said about them the better—and, unless I am very greatly mistaken, we are going to have an even longer one in front of us before very long. But there is one final question that I should like to ask the noble Lord on this matter of stop notices. What happens if a developer, in good faith, has failed to carry out all the provisions that he has been given of a planning permission?

The important point here is good faith. Can one envisage circumstances where the stop notice could be used for descending upon a developer who had been acting in good faith? We are quite clear, are we not, that the purpose of these provisions is to deal with the man who is deliberately flouting the conditions which were imposed on his planning permission? It is not too difficult to imagine that there could be very serious financial consequences from the use of these stop notices. I think the noble Lord made a reference to this effect on the compensation issue; but to be absolutely honest, I cannot exactly remember what he said about it. If he could give us a little more indication as to how he sees the possible effects of stop notices on the question of compensation or on the financial results of such stop notices, it might be helpful to us. But, as I said, my Lords, on what we have seen so far we would support this Bill, which seems to be an entirely sensible piece of legislation.

3.46 p.m.

Lord BURTON

My Lords, I apologise for not having put my name down on the list of speakers, but while this debate has been taking place a thought has occurred to me which perhaps might be considered during a debate on a planning Bill. This is a question of areas of special scientific interest, and there seems to be an increasing amount of country so designated. It seems to me it is only a matter of time before there is a clash between planning authorities and, I think it is, the Nature Conservancy, who issue these orders. Though I am not looking for any answer today, I feel that this is something which perhaps the Minister should consider.

Lord HARMAR-NICHOLLS

My Lords, like my noble friend I am tempted, as a result of what my noble friend on the Front Bench has said, to put a point to the noble Lord before he replies to this short debate. I suppose one ought not to apologise for intervening in a Scottish debate in England, because if certain people get their way I suppose we shall be in a position where noble Lords from Scotland will be able to tell we English how we ought to plan but we English will have no say at all in how the Scots do their planning. So this is a good chance to grab an opportunity while one can do it without infringing any rules.

The point I want to put to the noble Lord arises from what he said at the beginning of his explanation. He explained very clearly what the procedures would be when the regional planning authority took a different view from the district authority, and how the Secretary of State would be brought in to settle it; and he gave a very clear indication that there would be occasions when there would be this sort of conflict, when the district planning authority and the regional planning authority would not see eye to eye and there would be differences of view as to how it should be approached. If in the process of this inter-planning authority battle time is taken up, what protection is there for the developer or for the owner who wants to change the use of his premises or his land, to see that he is not kept waiting for months, and perhaps years, while the various planning authorities are having a private battle as to who has the authority to give the final word? Because one has had experience in England, on some occasions, that while the authorities themselves have been deciding who has the final power it is the individual developer who is losing money and time, and is put to some inconveniences which can sometimes be very dangerous indeed.

It could well be that there is a very clear answer to what I say about protecting the individual from being the victim of a prolonged disputation between two planning authorities and that I have not read it, but it was because the noble Lord did go into some detail as to the procedure for settling this possible conflict that I felt we ought to have on the record what protection there is for the individuals while this neat, tidying up of the authority of the various planning people is sorted out.

3.50 p.m.

Lord KIRKHILL

My Lords, first I acknowledge the very fair and factual, albeit non-controversial, welcome which the noble Lord, Lord Strathcona, has given to this Government Bill which, let us be frank, is basically non-controversial; although, no doubt, at Committee stage there may be points of detail which should be discussed at greater length. From the Government side, certainly we shall listen to any points made. The main purpose of this Bill is to improve the procedures relating to Scottish planning at this stage. As I indicated earlier, most of these difficulties have emerged in the course of the last few years. We want to make Scottish planning coherent and in balance as—assuming the Scottish devolved Assembly ultimately getting under way—it moves from the Scottish Office to the purlieu of the Scottish devolved Assembly.

The noble Lord, Lord Strathcona, was kind enough to indicate to me before the debate started that he would raise one or two specific points. At short notice I might not be able to satisfy him totally, but—and this would suffice both for him and for me before the Committee stage—I can indicate broadly the outlines of Government thinking on the points he raised. I paraphrase for your Lordships—and, indeed, for those of us in the perhaps adversarial position—the noble Lord's questions, but I think the gist of them will be clearly seen. The noble Lord at the very outset asked in effect where we are now with Scottish planning, where they have got to in Scotland.

No applications have yet been submitted to the Secretary of State for Scotland. I might point out that apart from the Islands area, the Highlands Boards, Dumfries and Galloway are general planning authorities as distinct from the other regional authorities. There is this distinction made in four cases. However, one has been prepared by the Orkney Islands Council but it has not been submitted to the Secretary of State. Several other regions, notably Strathclyde and Lothian, have certainly begun preparations. I do not have details about the position respecting other regions at this stage.

My Lords, on the question of appeals, the noble Lord asked this question. Can a regional authority go ahead and thus cut short the process of the appeal without it having been called in? I think that was how he put it. I can reply in this vein. If a regional planning authority calls in, it must offer an inquiry to the parties. This touches, in part, on the point made by the noble Lord, Lord Harmar-Nicholls. They must offer an inquiry to the parties. If the Secretary of State calls in, he must offer an inquiry. The regions cannot interfere where the Secretary of State has called in first. To touch on the point that Lord Harmar-Nicholls made, I have to say that the applicant does not have the kind of defence he would entirely wish for him. What happens under Clause 3—and I would draw the noble Lord's attention to this clause—is that if the region, having, called in an application, fail to reach a decision within three months of the calling there is then a clear appeal to the Secretary of State. To that extent, the applicant has a time limit. I will not be partisan and say that that is an improvement on the English position; but, marginally, it is.

Lord STRATHCONA and MOUNT ROYAL

My Lords, the noble Lord has been addressing himself mainly to cases where the authority decides to call in. What happens if it has not been called in? What we were concerned about was whether a situation could arise where a regional authority has gone ahead and given permission without it being called in—which could be conceivably, in the face of local opposition by people who might thereby feel they were being stifled and did not have an opportunity to go through the procedures. I might be wrong.

Lord KIRKHILL

My Lords, the position is that they have the right of appeal. I touched on this point in my remarks when I explained that in these circumstances the Secretary of State would not seek to call two inquiries. But they have the right of appeal and then get into the inquiry procedure. I made that point clearly in my earlier remarks. I do not think it is one that I obfuscated.

The noble Lord, Lord Strathcona, tempts me to make comment about what might happen once the Assembly gets under way. These are, as he has admitted, speculative waters at this stage. What is true at this stage is that, under the Scotland and Wales Bill, the Assembly and Executive will normally be entirely responsible for planning appeals for Scotland. The Secretary of State's role is defined in Clause 87 of that Bill. I am advised that these link to Schedule 12 to the Bill which gives powers of intervention to the Secretary of State in cases relating to non-devolved interests. Of course, the Bill has still to wend its way through the other place and your Lordships' House, but that is the position at the moment as outlined in the Bill.

My Lords, the noble Lord, Lord Strathcona, also gave me advance notice that he would raise one or two questions anent stop notices and how these might be considered. He asked whether I could confirm that powers of entry are being extended to include checking on the stop notice and also about the extent of the provision of the stop notice. I have to say that the Government have responded to this question of stop notices and the extension of the power of the stop notice. The existing stop notice does not include, for instance, change of land use; the extension of the power does so. The Government have responded to the extended concept of stop notices as a result of pressure from a number of local authorities and individual Members of Parliament because there has been a great deal of public concern, as I think I attempted to indicate in my opening remarks, on the question of one-day markets, dumping yards, scrap yards and car sales that move by the day or by the week. I do not think I could say very much more at this stage. Perhaps it is a Committee point. I will reflect on the question. There may be nuances that escape me now.

The noble Lord, linking on Scotland, remarked that presumably the powers will not be used to revise the import of a previous planning decision. That point he tended to emphasise. I can say emphatically, No. I must add that a stop notice could be served, for instance, to ensure that an earlier refusal of planning permission is respected. The point is that a stop notice can be served only where there is a breach of planning control; that is, development without planning permission. I do not think I can add anything to that. That is the position.

The noble Lord also asked what safeguards there are against unfair use of a stop notice where the developer was acting in good faith. Those were his words. There must be, first, an enforcement notice alleging a breach of planning control. It is possible to appeal against this. This links into the further point about compensation, where authorities using stop notices may be liable to pay compensation if the notice is withdrawn, or an enforcement notice is quashed or varied in certain circumstances. These two matters are linked and the noble Lord's fear is groundless. There is an adequate base of fairness and equity written into the Bill. My Lords, I am sorry if these have been somewhat detailed replies, but they were rather detailed points. As I said in my earlier remarks, I can only say at this stage—and I hope this will continue—that this Bill is worthy of support, although detailed examination as well, as your Lordships determine.

On Question, Bill read 2a, and committed to a Committee of the Whole House.