HL Deb 25 January 1977 vol 379 cc330-7

2.49 p.m.

The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read 3a.—.(Lord Kirkhill.)

On Question, Bill read 3a.

Clause 4 [Stop notices]:

The Earl of SELKIRK moved the following Amendment: Leave out Clause 4.

The noble Earl said: My Lords, I feel that I must apologise to the House for moving an Amendment on Third Reading, but the Committee stage was taken a good deal later than I thought it would be and there was no Report stage. Moreover, in the other place, a Bill has been produced which has some bearing on what we are discussing in this Bill. My intention—and I think it is a reasonable duty—is to try to clarify some of the issues in this Bill, which has certain (shall I say?) rather strong, perhaps even Draconian, powers taken into it. Under Clause 4, which is new Clause 87, stop notices are limited by three conditions. Those three conditions—(a),(b) and (c) in subsection (2)—start respectively with the words "shall", "may" and "may". I know that we have had a great many discussions at one time or another on what the words "shall" and "may" mean. However, there are two peculiarities about this. The first is that instead of the Secretary of State being the subject of the clause, the planning authority is the subject. The second peculiarity is that in each case the word "shall" or "may" is followed by the word "not". In each case is that requirement obligatory? Is it a categorical imperative imposed on the planning authority?

The word, "may" is a very peculiar word. If one were to say, for instance, "He may not come into the House", those words would have two meanings. They may mean that he may or may not come into the House or they may mean that he is not allowed to come into the House. I take it to be—and I believe it is—the Government's intention that each of these conditions is imperative. I should like to have that assurance. I also want to ask the noble Lord why he does not use the word, "shall", which would leave the Government's intention beyond any doubt. This is not unimportant because if the word means, "allow", it would leave a discretion with the planning authority which I do not think is intended in the Bill.

Subsection (2)(b) says that a planning authority may not put a stop notice on a permanent residence. That would be quite reasonable. If a person is living in a permanent residence, to put a stop notice on it, which I suppose would mean pulling down the house or something like that, would probably be rather harsh. Secondly, a stop notice may not prohibit the continuation of an undertaking which has been in existence for 12 months. I should like a categoric statement on that and I should also like an explanation why a more definite word has not been used.

The second matter to which I draw attention arises in subsection (2)(a) of the same clause. It says: A Stop Notice—(a) shall not prevent any person from taking any steps necessary to comply… What do the words, "any person" mean? For instance, do they mean that if someone erects an unauthorised garage next door to my house I can pull it down? Do they mean, in effect, that if someone stands a caravan next door on someone else's ground I can take it away and perhaps burn it? Is that the intention? The words, "any person" are very wide and I should like to know whether that sort of interpretation is the Government's intention or is permissible under the Bill.

The third matter I wish to raise arises in subsection (5)(b) of new Clause 87. It says that on conviction or indictment a person would be subject to a fine. There is no indication what the fine should be. Is it intended that the fine should be based on the wickedness of the individual, on the cost of putting right what he has done or on the conceivable profits that he might make by doing some nefarious deed? Would it not be better to indicate to the courts what that fine should be? There is a limit as regards summary offences and this is only on indictment. I know that this will come before the sheriff court or the Court of Session but should there not be some indication of the fine? I ask those questions because, above all, it is important in town and country planning, which heaven knows is complicated enough, to be clear about the Government's intention and whether the Bill effectively carries out their intention. I beg to move.

2.55 p.m.

Lord CAMPBELL of CROY

My Lords, this clause is a completely new departure in the planning Acts, both North and South of the Border. I moved a like Amendment in Committee, when my noble friend Lord Selkirk was unable to attend. However, a great deal has happened since that debate in Committee. When I inquired whether a completely new departure was taking place in England and Wales, the Minister informed your Lordships' House that a Private Member's Bill was being introduced in another place. The following day it was announced that such a Bill was being introduced and later we discovered that a Member in another place who was successful in the ballot had adopted a Bill, with Government support, with the equivalent for England and Wales of Clause 4 in this Scottish Bill. The matters that we are discussing in the Scottish Bill are of interest to England and Wales as well as Scotland. Moreover, the Bill in another place affecting England and Wales was published and printed only in the last two or three days—it has only just become available. We have been comparing its text with Clause 4 of the Scottish Bill.

Although I received some representations before the debate in Committee on my Amendment, I must make it clear that the body which seems primarily concerned is the Confederation of British Industry. It is not the landowners or property developers, but the CBI who have expressed concern, because they believe that unless this clause is carefully drafted it could cause delays to industry and to industrial projects. I remind your Lordships' House that the Prime Minister himself has said that the Government wish to give priority to the interests of manufacturing industry. Therefore, I hope that the Government will consider carefully the wording of this clause.

As my noble friend said, the clause seeks to extend the use of stop notices. Although we on this Bench are not opposed to stop notices being used in circumstances additional to those in which they are now authorised, this clause is very far-reaching. The Explanatory Memorandum says: A stop notice will be able to prohibit unauthorised uses of land and breaches of conditions or limitations attached to planning permission, in addition to operations alleged to be in breach of planning control. There may well be difficulties in practice about interpreting the situations which are visualised. There could be disputes about whether a change of use has or has not occurred. At present I would remind your Lordships that the planning Acts, both North and South of the Border, apply with regard to stop notices only to building operations, engineering or mining. It is not very difficult to prove that those sort of operations are taking place or whether they have been authorised. However, in cases of other uses of land, alleged changes of use and whether or not a use has been established for a period of time in the past, there is great scope for differences of opinion and argument. I warned the Government in Committee that there was this concern and the Minister certainly registered the point.

I turn to what is being proposed for England and Wales. I understand that the weeks between the Committee stage of this Bill and the publication of the Bill for England and Wales two or three days ago have been usefully spent in consulting the organisations and interests concerned. I believe that the Government have had a quick round of consultations—certainly they have been in touch with the CBI. I hope that any changes which they have thought worth making and which have been included in the Bill for England and Wales will be considered also for Scotland.

The Bill for England and Wales has been adopted by my honourable friend Mr. Dudley Smith, it has sponsors from both the Labour and Conservative Parties, and I understand that it has Government support. It is the second item of business on this coming Friday. In another place only the first six Private Member's Bills are first business on a Private Member's Bill day, but if the Bill which precedes it, that on insurance brokers' registration, is considered well before four o'clock, then there is every opportunity of the Bill for England and Wales having a Second Reading debate this week, in three days' time. I hope that the drafting of that Bill will also have taken account of the comments which were made here, before Christmas, during the debate on Committee stage of the Scottish Bill.

I would urge the Government not to be shy about having second thoughts and proposing changes to the Scottish Bill if, in the light of the consultations which they have been having and the representations they have received, they think that some changes are necessary. The drafting of the Bill for England and Wales is different at various points from Clause 4 in the Scottish Bill, although it follows the same general form. I would not ask the Minister to describe the differences now, but I hope that when the Scottish Bill reaches another place the Government will avail themselves of any good advice they have received, and will suggest such changes as they think necessary to the Scottish Bill in its further stages.

To sum up, we from this Bench are ready to help with improving the present situation as regards stop notices under the planning Acts, provided that the new proposals are well thought out and practicable; and this applies both North and South of the Border.

3.3 p.m.

Lord KIRKHILL

My Lords, the noble Earl, Lord Selkirk, and I have been in correspondence in regard to his Amendment. I think we are agreed that the noble Earl is concerned mainly with subsection (2) and subsection (5)(b) of Clause 4. The noble Earl is worried by the use of the words "may not" at the beginning of paragraphs (b) and (c), whereas paragraph (a) uses the phrase "shall not". As I have explained to the noble Earl in writing, there is no difference in the practical effects of these different forms of wording. I am advised that the difference is purely a matter of drafting preference. I can perhaps draw a distinction between paragraph (a) on the one hand, and paragraphs (b) and (c) on the other hand which will help to explain the difference in wording.

Paragraph (a) states that a stop notice shall not prevent any person from taking any steps necessary to comply or secure compliance with an enforcement notice. It is really concerned with a possible unintended consequence of a stop notice. For example, if a wall is being erected without planning permission, the planning authority might decide to serve an enforcement notice on those responsible, requiring them to remove the wall and restore the land to its former condition. At the same time they might serve a stop notice prohibiting further operations on the site, meaning building operations, but unintentionally including demolition operations as well. This could put the recipients of the enforcement notice and stop notice in an impossible position, because they are prevented by the stop notice from doing what is required by the enforcement notice, in this case carrying out operations to remove the wall. The purpose of paragraph (a) is simply to provide that in this kind of circumstance the enforcement notice overrides the stop notice, and the latter cannot stop anyone who is required to comply with the enforcement notice from doing so.

If I understand the noble Earl correctly—and from some informal conversation we had on this point I think that I do—he has somehow got the impression that paragraph (a) makes a stop notice almost like a vandals' charter, whereby all and sundry can go around knocking down walls declared by the planning authority to be in breach of planning control. Let me say at once that this is not the case. This provision is concerned only with people who, but for the stop notice, would legally be in a position to take the steps required by the enforcement notice. It in no way disturbs the protection of people's private property afforded by the criminal and civil law, even if that property was built without planning permission.

If I may return to the distinction between "shall" and "may", while paragraph (a) deals with an unintended consequence of stop notices, paragraphs (b) and (c) are concerned with the intentional actions of the planning authority. These provisions say what the planning authority, in serving a stop notice, may not do. A stop notice which purports to prevent someone from using a house or caravan site as his permanent residence has no effect whatever—and I think the noble Earl mentioned that point—and a planning authority who attempt to serve such a notice will be overstepping their legal authority. There is no way in which a stop notice can have that effect, or in which it can stop an activity commenced more than 12 months beforehand. The words "may not" therefore have the same effect as "shall not", the only difference being that in the former case we are dealing with the conscious decisions of responsible local authorities, whereas in the "shall not" case of paragraph (a) we are dealing with unintended consequences. It is for that reason that the drafting distinction is made.

I welcome the comments made by the noble Lord, Lord Campbell of Croy. He very correctly says that this, as we see it, improvement to Scottish planning procedure, carries a fair measure of cross-Party support, as is evinced by the fact that one of his honourable friends in the other place is sponsor of a Bill which will have some Government support. I shall certainly take note of his observations remarking, as he has, that it will be necessary to make sure that the English and Scottish legislation march in step. In so far as this is practical within the terms of my responsibility I shall undertake to see that this is done.

I think I should say to the noble Lord that over the last three years there has been an ongoing review of Scottish planning procedure, largely in response to pressures upon the Scottish Office from those most concerned and interested, and this is one more example of just that. I think it is right to remind your Lordships' House, on the assumption that in the not too distant future there is the creation of a Scottish Assembly, that then of course Scottish planning matters will stand devolved, and this is a factor which T would have to consider.

I should also say to the noble Lord that I am not impressed that the CBI need to worry too much. Planning authorities must be regarded as responsible bodies. I think we should accept that as an a priori assumption, and that it is in their own interests to assist and not to hinder industry in their own area. With that observation, I would urge on the noble Earl, Lord Selkirk, that his fears are without foundation, and in the light of my explanation I am confident that he might feel able to withdraw his Amendment.

The Earl of SELKIRK

My Lords, I should like to thank the noble Lord for what he has said. I have no intention of continuing this discussion. I still think that subsection (2)(a) is a trifle wider in meaning than the noble Lord suggests, but I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord KIRKHILL

My Lords, I beg to move that the Bill do now pass.

Moved, that the Bill do now pass.—(Lord Kirkhill.)

On Question, Bill passed, and sent to the Commons.