HL Deb 21 December 1976 vol 378 cc1245-54

5.38 p.m.

The MINISTER of STATE, SCOT-TISH OFFICE (Lord Kirkhill)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee. —(Lord Kirkhill.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MAYBRAY-KING in the Chair.]

Clause 1 agreed to.

Clause 2 [Amendment of provisions of the 1972 Act relating to local plans]:

On Question, Whether Clause 2 shall stand part of the Bill?

Lord CAMPBELL of CROY

I should like to make a comment or two on the clause and to ask the Government whether they could give an expression of their attitude. The last Scottish planning measure which went through Parliament was the 1969 Act. Reference is made in Clause 1 to the 1972 Act, which was a consolidation measure, but 1969 was the last opportunity when planning legislation changes could be introduced in Scotland. In 1973 there was also a reorganisation of local government and Clause 1 refers to the 1973 Act. There was the unenviable task, if I may call it that, of propelling through Parliament a massive Bill covering most of the changes resulting from the new councils which were set up as local authorities in Scotland—for example, questions of boundaries, methods of election, allocations of functions and duties. But no attempt—I was the Minister in charge, so I take the opportunity of informing the House—was made to change the planning laws while that Bill dealing with the reorganisation of local government was going through. What was done was to adapt the planning law as it existed to the new authorities.

Now we have the opportunity of considering changes in the Scottish planning legislation put forward by the Government in this Bill. I should like to make a general comment on Clause 2. The planners—as they are often called—appear to many of the general public to be invisible gnomes trying to order everything minutely according to their own preconceived ideas or prejudices. To that extent planners get a bad name. I believe this is unfortunate and unnecessary and leads to friction and misunderstandings.

I think the structure plans and local plans which have formed the basis of town and country planning in Scotland since the 1969 Act should leave options open where it is sensible. There are some important areas of Scotland where planning in great detail has to be carried out but there are other areas where, for example, little may be likely to happen other than sheep farming where it would be time wasting to spend a great deal of energy on trying to plan minutely. The plan should provide a strategy and indicate the best use of resources and this is a way in which local authorities can indicate to incoming industry, expanding industry, to house-builders or any other potential developers where their activities will be welcome and where they will not be welcome and what kind of activities these should be. This planning will steer projects large and small into suitable areas with well co-ordinated ultimate objectives for the benefit of the part of the country concerned. I should like to seek the Government's view on this: whether they agree in principle or whether they foresee difficulties.

I hope that the Government would positively discourage any local authority from preparing in great detail a kind of straitjacket for an area where everything is apparently preordained in meticulous detail without leaving options because that gives the planners a bad reputation and it also delays the production of any plan at all. One of the clauses in the Bill seeks to enable the district authorities to put forward local plans and to start working on them even though the structure plan for the wider area has not yet been completed. That is a change for the good, and I welcome it, but I think these changes should be considered in the light of the principles which I have tried briefly to enunciate and on which I seek the Government's view.

Lord KIRKHILL

I confirm from the Government side of the House that the noble Lord, Lord Campbell of Croy, gave a brief yet accurate potted history of some aspects of recent attitudes towards Scottish planning legislation and I can assure the noble Lord that this Bill comes before your Lordships really because the Government have responded to pressure and to representations made to them by many local authorities, by individuals and by many Members of Parliament, and that across the political spectrum.

As the noble Lord, Lord Campbell of Croy, has not unreasonably pointed out, a planner is frequently considered to be a gnome-like figure. Recently in the Scottish Office a new planning emphasis has been ordained. We are attempting to give to the regions their own individual entitlement and concept of planning role and we in the Scottish Office are tending to step back a little. We certainly believe that the role of planner in modern society is a very necessary part of that society. I can say for the Government that planning is a function mainly of local authorities which affects the man in the street. It may have an impact on him through direct contact if he is seeking, for instance, a planning permission or through affecting his way of life—as when major industrial developments in the neighbourhood are being considered. Therefore I agree with what the noble Lord, Lord Campbell, has just said, that there is every reason why planning should be an open process so far as possible; that it should not be a mysterious or remote process.

Therefore I give an assurance to the House that from the point of view of the Scottish Office we intend that plans should be clearly expressed, that they should be flexible, that they should be realistic and should be capable of being implemented. I can confirm that the Secretary of State has advised planning authorities generally along these lines, and I further welcome the remarks made by the noble Lord about our new attitudes towards the district authorities because some of the Scottish structure plans will not take place for a long time, if ever, and it is only right that the districts should proceed where possible to the implementation and the creation of local planning.

Lord CAMPBELL of CROY

I am grateful to the noble Lord, Lord Kirkhill, for giving the Government thinking on this clause, which is what I was seeking. It is the background to the change that is being suggested.

Clause 2 agreed to.

Clause 3 [Appeals from determinations of regional planning authorities]:

On Question, Whether Clause 3 shall stand part of the Bill?

5.47 p.m.

Lord CAMPBELL of CROY

I cannot refrain from saying a word or two about this clause because as I think the noble Lord, Lord Hughes, will remember that this point was being argued about in 1969 and therefore I am glad to see that in the light of experience the Government have decided to make a change so that the local authority would not appear to be judge and jury in its own case, and that an appeal would be possible, in the circumstances prescribed, to the Secretary of State for Scotland. Something rang a bell in my memory. I remembered that in 1969 we must have been discussing these things and I looked it up and found that on 29th April 1969 from the Front Bench of the Opposition in another place I said: The point is that, as distinct from a court, a local authority is an interested party. There must be considerable disquiet, even though every local authority acts properly in every case. There should be provision for reference to a second authority, namely, the Secretary of State, who is clearly the best man for this kind of case That I can only repeat in comment on the change now being made. I hope that the Committee will support us in this Amendment."(Official Report (Commons) 29/4/69, col.2580.) I fear that the Committee, by a Division, did not support us.

Clause 3 agreed to.

Clause 4 [Stop notices]:

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

Lord CAMPBELL of CROY

I tabled an Amendment to indicate that your Lordships might consider whether it was necessary to include Clause 4 in the Bill at all, but this was simply to draw the attention of the Government to some doubt about whether or not it is wise to bring in this new provision concerning stop notices. As I understand it from reading the clause, the objection is that the Government intend to extend the scope of stop notices from development as it is now, concerning building, engineering and mining, to any change of use; and as the noble Lord, Lord Kirkhill, indicated on Second Reading this could mean such changes of use as the setting up of a scrap yard, which could include the burning of rubber tyres or other things which could cause a disturbance or nuisance in the area. I believe that is in itself a valid point—and I have experience of scrap yards and similar activities starting up on green field sites and causing considerable nuisance to neighbouring property.

The point about a stop notice where it now applies is that where proceedings are being taken to bring, shall we say, some building operation to an end because the planning permission is being ignored, the building can actually be stopped while the proceedings are taking place, and before the final decision, which could be months later, is taken. If now the stop notice procedure is to be extended to these other activities, I say straight away that I think this is welcome where the kind of situation I have described is at issue. But it also raises some difficulties, because there could be other cases less clear than the scrap yard example I have given, which could arise from the wording of this new clause.

I ask the Govrenment whether they have considered these, and what their view is about the possibility of such cases arising. For example, to prove that engineering or building operations are unauthorised is comparatively easy. But it is nothing like so easy to prove that a use of land is authorised, or changed, or that it has been carried on for more than a year, which is one of the points which has to be proved under the clause. The difficulty of demonstrating that a use is established is to be seen by the procedure for certification of established use in the Scottish Town and Country Planning Act, the consolidation measure of 1972, and also its English equivalent.

It could well be that, even though the use became established otherwise than by express planning permission at a particular time, a recent owner could be unaware of that fact and fail to apply for a certificate of established use. Then, not only could he be challenged by an enforcement notice under this clause, but by the extension of the stop notice procedure he could suffer the hardship of having to cease the use until such time as a complicated procedure was disentangled and a decision given on his appeal, which could take many months. I am asking the Government to consider whether the clause may not give rise to arguments about the change of use in situations much less clear than the ones the noble Lord gave as examples, and which I recognise.

Then there is a wider point. Of course, this is pioneering, because if the clause is accepted in this Bill it will be doing something North of the Border which has no equivalent in England and Wales. So far as possible in recent years, we have tried—and I say this for both sides of the House—to bring the planning legislation in Scotland and the planning legislation in England and Wales closer together, because otherwise it is very confusing for industry and others (the building industry in particular) in making applications in different places, to find themselves with quite different planning procedures. It has been welcome that gradually, as changes have been made, they have been brought together.

Here we find a departure being proposed North of the Border, while the general principle seems not to have been considered for the United Kingdom as a whole. So I ask the noble Lord the Minister whether this is something that the Department of the Environment have also in mind to carry out, when the opportunity occurs to introduce or to propose to Parliament in regard to England and Wales. We must recognise that this is a new procedure starting North of the Border, without a similar procedure appearing South of the Border.

Baroness ELLIOT of HARWOOD

There is one question I should like to ask the noble Lord the Minister before he replies. I served on a county council for a great many years, and it was impossible for anyone to change the use of a site, or the use of a building, without getting planning permission. When the clause says "stop notices", I wonder what is different in this from that which already happens, certainly on the county council on which I sat, although I do not know about all the others. No major change, no alteration of use, no setting up of a caravan site, or, as my noble friend Lord Campbell of Croy said, doing something about dumps, or whatever it is, could possibly occur before the matter had gone to the planning committee and received permission. Over and over again the permission was refused. This caused annoyance because people thought it was interference in their own private affairs, but it was done in the interests of the community and it worked rather well on the whole. Before the noble Lord the Minister replies, and having listened to my noble friend Lord Campbell of Croy, why must we have this situation? So far as I remember, and it was my own experience, you could not possibly do any of these things without first applying to the planning committee for permission.

5.55 p.m.

Lord KIRKHILL

The Government have given careful consideration during the preparation of this Bill to the need to improve the effectiveness of enforcement powers to deal with breaches of planning control—and I must emphasise that point, that a stop notice deals with a breach of planning control. In the Government's view, there can be no doubt that in many instances the present provisions under the Town and Country Plannng (Scotland) Act 1972 have been found wanting and Government consider it vital to make the system of control more workable. The most serious gap in the enforcement powers of planning authorities is the limitation on the use of stop notices. In the opinion of the Government, the changes contained in Clause 4 of the Bill are both necessary and timely. I should explain that Clause 4 reenacts substantially the provisions of Section 87 of the 1972 Act. It was decided for convenience to include the new clause in its entirety in the Bill rather than making a long series of separate Amendments. The changes to the Section 87 provisions, however, are limited to those Amendments required to rationalise and improve the stop notice arrangements.

I should also explain—and again I would emphasise—that even under the new provisions stop notices are supplementary to enforcement notices. If I might direct the attention of the noble Baroness, Lady Elliot of Harwood, to Clause 4(3), it might be helpful to her if I explained the view of the Government of that particular subsection, where we are not really talking about change of use as such. We are in fact talking about a breach of planning control, of planning consent. Subsection (3) enables a planning authority who have served a stop notice to bring all those involved within the scope of the stop notice by posting site notices. These have to be displayed clearly on the site, stating that the stop notice has been served, and setting out its requirements. While stop notices will be served on those primarily responsible for the breach of planning control, they will not, of course, guarantee that the breach stops.

Part of the problem has been that other people might be taking part, or may come along and take up the activity, where the recipient of the stop notice left off. This has been happening. For example, a stop notice served on a rubbish tip operator would not prevent others from coming along independently and tipping rubbish on the site. It is hoped that a site notice will enable the planning authority to stop all tipping on the site. There is the breach of planning permission which has been occurring, and the stop notice is designed, one hopes, to prevent these occurrences in future.

I should say that a stop notice can be served only where the planning authority has already served an enforcement notice in consequence of an apparent breach of planning control; that is to say, where some activity which requires planning permission is being carried on without such planning permission. The stop notice merely stops the offending activity while any appeal against the enforcement notice is determined. There is no question of a stop notice being used to stop some long-established and perfectly legitimate activity which the planning authority suddenly finds inconvenient. There is a separate procedure for doing that under Section 49 of the 1972 Act.

I hope noble Lords will agree that the changes we are making do no more than is necessary to correct the most serious defects in the enforcement powers of the 1972 Act. They are based on experience of the actual working of the existing powers, which, for the reasons I have outlined, have not proved entirely satisfactory or indeed watertight. May I assure the noble Lord, Lord Campbell of Croy, that we in Scotland are not alone in discovering this. Our enforcement powers are similar to those in the English and Welsh Town and Country Planning Act 1971. I understand that in another place a private Member is bringing in a Bill, which will have Government support, to make provision for England and Wales similar to that made for Scotland by Clause 4 of this Bill. I hope noble Lords will find my explanation satisfactory, and it is my hope that the noble Lord, Lord Campbell of Croy, might feel able to withdraw his Amendment.

Lord CAMPBELL of CROY

I am grateful to the noble Lord for having replied to the point, realising that I was raising doubts that had been expressed about the need for this new clause in the Bill. I am sure that all your Lordships will be interested to hear that it is intended that a similar change shall be made in the planning laws of England and Wales by means of a Private Member's Bill supported by the Government. The fate of that, of course, is usually less certain than a Bill which is a Government Bill, but I see how the Government are proceeding and that the policy intention is the same both North and South of the Border.

The only thing that still remains so far as I am concerned is a worry that there could be some difficult cases arising from this. I certainly do not oppose the principle of trying to extend the stop notice system in order to enforce the law, but I think there can be problems arising from this. I can only warn the Government about this. If outside bodies have a chance of making representations to the Government, as I think some may, while the Bill goes through your Lordships' House and another place, I hope the Government will take note of the anxieties expressed, and consider whether any Amendment could be made.

Clause 4 agreed to.

Remaining clauses agreed to.

House resumed: Bill reported without Amendment; Report received.