§ 5.22 p.m.
§ Lord Nugent of Guildford
My Lords, I beg to move that this Bill be now read a second time. The Bill amends the substantive Town and Country Planning Act 1971, Part V thereof. Its start was in the other place where it was promoted by my honourable friend Mr. Stephen Hastings and has, of course, had all stages approved in the Commons. Noble Lords and noble Baronesses who are privy to the mysteries of planning legislation will remember having seen something very like this Bill in the Local Government, Planning and Land Act which my noble friend Lord Bellwin introduced here in November 1979. Noble Lords will also remember that the House had more than enough of that Bill and that in order to save your Lordships' staying powers the Government dropped this piece of legislation—Schedule 12, as it then was. That is why it comes back again now.
Some further improvements have been made to the Bill now before the House but, as the noble Lord, Lord Ponsonby, tried to reinstate the schedule by an amendment last October and again there was no time, I hope that the noble Baroness, Lady Birk, will welcome it in its new form. The substance of the Bill is in the schedule, which re-enacts Sections 87 and 88 of the 1971 Act on enforcement, and Sections 96 and 97 on listed buildings. The schedule runs to some 16 pages. Its length and complexity is only exceeded by the Notes on Clauses, which run to some 60 foolscap sheets, which it has been my duty, but not my pleasure, to plough through.
In a word, the interest in this Bill is primarily for the professional, which very much includes the noble Baroness, Lady Birk. Planning, which is so immensely complicated in practice, is absolutely simple in principle. It is, in principle, the legal process of defining the balance which is to be struck between the interest of the owner in his property and the interest of the community in what he does with it. The local authority, through its planning officer, is the authority which has to carry out this function on the ground. It is inevitably invidious, because it is either attacked by the owner, who is restrained from doing what he wants to do with his property, or by the public, who complain that a local amenity has been damaged by a development which the local authority has failed to check.
In passing, I should like to pay a tribute to the planners, many of whom are friends of mine, who are most able men of the highest integrity and who are not appreciated as much as they might be. The 1093 complex legislation about planning defines how this balance is to be struck and how decisions are to be enforced. This Bill is concerned with enforcement, and the schedule amends the machinery of enforcement in the 1971 Act. This amendment Bill is based on the expert report of Mr. George Dobry, Q.C., in 1975, followed by extensive consultations between the Department of the Environment and the Local Authority Associations. Broadly, its effect is to refine and sharpen the machinery of enforcement so that it will more precisely carry out the wishes of Parliament, both to conserve the public interest while at the same time preserving the rights of private ownership.
Enforcement is an everyday matter for local planning authorities, usually starting in small matters with the complaint of a householder who is being disturbed by some new activity of a neighbour. A simple example illustrates how this often goes. A typical complaint arises where a householder is developing a motor car repair and servicing business in his domestic garage. It starts by one or two motor cars coming for repairs, and soon develops into several cars permanently standing outside in the street, cluttering it up to the inconvenience of the neighbours. Meantime, he will, of course, have built on to his garage in order to increase the accommodation. Eventually the neighbours get fed up with the inconvenience and complain. The owner has broken the law, first, by a change of use of his domestic garage to commercial premises and, secondly, by the structural extension that he has built on to his garage. The local planning authority then serves an enforcement notice on him requiring him to cease his trading activity within a stated period and demolish the addition that he has made. He is also informed that he has a right of appeal to the Secretary of State.
No great complication arises in such a simple example, but in the case of a major construction, where the contractor proceeds with structural work significantly outside the planning consent, very big issues are involved and the problem of dismantling the offending work becomes very serious and costly. Similarly with a listed building where unauthorised alterations or demolitions are being made, very big issues are involved, together with the problems of whether they should be replaced or what should be done.
This Bill does not change the basic principle of enforcement, but it makes two useful practical improvements. First, instead of being limited, as now, by Sections 87 and 96 of the 1971 Act to requiring the property to be restored to its previous condition and that only—that is to say, by demolishing the offending structure which has gone beyond the original consent or, and this is more complicated, where a demolition has taken place, obliging the contractor to rebuild what he has demolished—this amending Bill will allow the local planning authority the alternative, if it considers it proper, to require that suitable steps be taken to alleviate the damage to amenity or the effect of the unlawful works. This is obviously a useful piece of flexibility.
Secondly, the schedule deals with the appeal arrangements for a property owner. As I have said, a right of appeal is an essential part of maintaining he balance between property owner and public 1094 interest, but appeals take time and there is a natural incentive for the property owner to extend the process. Meantime, of course, the nuisance to the neighbours continues or, worse still, unlawful construction or demolition may be continuing and worsening the breach of the planning consent. Irreversible damage may be done, especially to a listed building. The object of this amendment is to give the Secretary of State more effective control over the time involved in the appeal process so that it shall not be abused at the expense of the public. At the same time the property owner's right of appeal is fully preserved.
There is an innovation in this Bill whereby the Secretary of State will have power to make regulations covering the appeal procedure and he has undertaken that before doing so, if the Bill becomes law, the Secretary of State will on the one hand consult with the local authority associations to make sure that the machinery is exactly right, and on the other hand with the Council on Tribunals to ensure that the property owner's private interests are properly protected and the fair balance is maintained.
There are a number of minor and consequential amendments with which I need not trouble your Lordships, but I should just mention one new duty which is imposed on local planning authorities; that is, to keep a register of enforcement and stop notices. I am told that this can be done without involving additional manpower. In fact, of course the information is already in the files of local planning authorities, so it is simply a matter of formalisation, but it will be a great convenience to all interested members of the public who want to find out what notices have been issued. I think I have covered the main points in the Bill, and I beg to move.
§ Moved, That the Bill be now read 2a—(Lord Nugent of Guildford.)
§ 5.32 p.m.
§ Baroness Birk
My Lords, I should first like to congratulate the sponsors of this Private Member's Bill, Mr. Hastings in another place and the noble Lord, Lord Nugent, here today in having succeeded in getting this far through the legislative process. I should also like to thank the noble Lord for the cogent and lucid way in which he explained the Bill, which saves me going over a great deal of it again as background because he has covered it so well. As he says, it is a complicated subject.
It is never easy to get private legislation on the statute book. I hope—certainly with the Government's help—that this Bill will be one of the small minority that finally receive Royal Assent. Certainly we on this side of the House support the basic principles embodied in it, which were again explained so well by the noble Lord, Lord Nugent. As he said, it originates from discussions which were initiated by the Department of the Environment many years ago under the previous Administration. In fact, I think it was during the time that I was a Minister there.
At that time lengthy and detailed discussions were held between representatives of the local authority associations and departmental officials in order briefly to tidy up and tighten the legislation on the enforcement of planning controls. Therefore, the provisions on enforcement that were set out in the 1095 No. 1 Local Government Bill, and as they are amended in this Bill, have the support in principle not only of the Opposition, the House, but of the three local authority associations.
The Government's decision to remove the schedule on enforcement from the No. 1 Bill when it was reintroduced as the No. 2 Local Government Bill in another place was, as I understood it then, because the No. 1 Bill was already complex, controversial, and large enough. So unfortunately the provisions on enforcement had to be sacrificed despite the fact that they were non-controversial. As these proposals are essential to improve the system of planning enforcement, I and my noble friend Lord Ponsonby moved that the schedule be reintroduced into the No. 2 Bill during the Committee stage in this House.
At that time the Minister, Lord Bellwin, expressed support for the amendment in principle, but in turning it down at that time he said that it was the Government's intention to come forward with legislation on enforcement as soon as legislative opportunity presented itself. He said at col. 1031 of Hansard of 13th October 1980:I cannot tell him when [we will be able to do it] because I truly do not know.We all want the same thing. I hope it will not be too long, but I cannot tell him exactly when it will come".It has now come by means of a Private Member's Bill although, as I understand it, the Government have in fact done the major drafting for it.
Therefore, while we give our support to this Bill key changes have unfortunately been made to the version originally tabled in the No. 1 Bill. The most important change is that the opportunity to update fines for breach of enforcement orders has been lost. This was a point that was pressed very strongly during the Committee stage in another place. It was felt that the £50 daily fine, which is the fine at the present moment, ought to be increased to at least £100. At that time the Minister responded by saying that he would give serious consideration whether it would be appropriate to make a move on fines in this House. That is at column 1073 of 15th May. I hope that the Minister will now be able to tell us when he speaks today that amendments will be tabled at Committee stage and that the level of fines will be based on those set out in the No. 1 Bill but updated to reflect the substantial inflation which has occurred since the autumn of 1979.
Further, the original No. 1 Bill proposals on enforcement included improvements to the legislation on waste land and tree preservation enforcement. This was in Schedule 12 to the No. 1 Bill, page 205, Section 14. Briefly, what it was saying was that if someone has a wasteland order served on him and does nothing to tidy up the land, then something could be done about it, whereas at the moment nothing can be done about it. He has in fact to make it worse before the local authorities can take action. The tree preservation enforcement order has also been dropped and is also something on which, as I understand it, there is no difference of opinion between us, or in fact between anyone, but that is out of the Bill. Both these sets of proposals have been dropped for reasons which have not been made clear.
1096 In another place the Minister, when challenged on this point, said that the advice of the mover of the Bill was that to enable him to process a Private Member's Bill it would be necessary to restrict its scope. But as the Bill has now quite comfortably and easily reached your Lordships' House and the proposals contained are non-controversial and had been set out in earlier legislation, having been the subject already of critical scrutiny by parliamentary counsel, I am sure that the Minister could bring back these proposals in the No. 1 Bill. Although there may be minor drafting errors there should be no problem in eliminating them now and including these important provisions in this Bill, which the Association of County Councils have written about and also feel strongly about. I hope the Minister will now accept that these proposals can be reintroduced without delaying the passage of the Bill.
A further point over which concern has been strongly expressed has been the omission of specific provisions on minerals. The No. 1 Bill contained provisions which would have meant that in the case of mineral workings an operator would not be able to appeal against an enforcement order on the grounds that planning permission ought to have been granted for the working. In 1976 the report of the Stevens Committee on Planning Control over Mineral Working stated:It is clear to us that the essential significance of the most serious breach, of unauthorised winning and working … is that the harm done by such working is largely if not wholly irremediable. The working ravages the land, and although in theory an enforcement notice can require the restoration to be carried out, it is frequently impracticable to replace what has been unlawfully taken. It is, therefore, of the highest importance that unauthorised working should be promptly detected and immediately stopped. The present procedures do not encourage this: quite the reverse".In our Circular 58/78, published by the last Government, we recognised the problem and said the then Government were—in full accord with the Committee's view of the potential seriousness of unauthorised working".Although the whole package of the committee's recommendations was not accepted, we proposed instead—to introduce legislation making unauthorised mineral working an offence subject to appropriate penalties; and to make provision to secure restoration of the land. We propose further that for this purpose unauthorised working should include working beyond a date specified by a permission or a condition, or the commencement of operations (or a particular phase of operations) without obtaining an approval required by condition to be obtained before operations (or a particular phase of operations) should commence".That met to a great extent the recommendation of the Stevens Committee, and again, both the Association of Metropolitan Authorities and the Association of County Councils support the original proposal, although it is recognised that operators may still try to delay the enforcement process so that they can continue to extract valuable material from the ground. At present, a mineral operator can very profitably carry out his operation without planning permission and in defiance of an enforcement notice for some considerable time. This problem was clearly recognised by the Stevens Committee, which therefore made the recommendation I have read out.
1097 If, when the town and country planning minerals legislation was going through this House, we had thought the matter would be omitted from the Bill before the House today, I should have tried to get the necessary provision inserted in that earlier measure. I am afraid it is now too late for that. I am therefore asking that the proposals relating to waste land, trees, minerals and fines should be reinstated, as it were, and put down as amendments to this Bill.
My final point is that of listed buildings. I welcome the changes which were spelled out splendidly by the noble Lord, Lord Nugent. In another place, an amendment tabled by Mr. Heddle, which would have taken the matter a stage further, was withdrawn, although the Minister said that the Government recognised the desirability of strengthening the repairs provisions of the Town and Country Planning Act 1971 but that Mr. Heddle's amendment would not have achieved the Government's aim. I have disagreed with the present Secretary of State on many matters, but on this occasion he has indicated his great interest in conservation and has made a number of excellent decisions in this field. Listed buildings are now of great concern and over the years the publicity which has been given to them has increased greatly. However, legislation is urgently needed to enable both local authorities and the Secretary of State to have the necessary powers to stop the decay, demolition and disrepair of buildings before it is too late.
For example, in many cases the penalties are too small, while in other cases the Crown Court, where there is no maximum, often does not take the opportunity it has. A recent glaring example was at Monks-path, where the penalty handed out by the Crown Court was ludicrously low. I suggest we should consider the possibility of recasting the structure of some of the offences. For instance, demolition without permission should probably be a separate and identifiable offence. Building within the curtilage of a listed building is another area which is urgently in need of alteration and improvement.
However, it might be argued that such matters would alter the Long Title of the Bill and that there might otherwise be problems in using this measure as a vehicle for the changes I have described. I should like to hear the Minister say the Government have in mind either special legislation in this sphere or that they will find a slot for making such changes in the not too distant future. However, what are immediately necessary and I believe come within the ambit of the Bill are provisions to give local authorities and the Secretary of State power to compel owners to pay to put listed buildings into good repair where substantial work is needed without having compulsorily to purchase the building, which is a cumbersome procedure which leaves the local authority with buildings it cannot keep up and buildings with which the Secretary of State does not know what to do.
At present, the only provision covers emergency repairs under Sections 101 and 102 of the 1971 Act, but by inference they are for only minor repairs. One could unfortunately give a number of examples, but the one I have in mind—I was dealing with it for practically the whole time I was a Minister—was the gradual decay of Barleston Hall, owned by the Wedgwood 1098 Company, where in spite of an offer of a considerable sum by the Historic Buildings Council, one could not get the company to take any action, although I had many conversations with them and at one time we thought we had come to an agreement. If the local authority or Secretary of State was able to undertake repairs to such a building, the company could be billed with the costs involved so that the building would be saved and there would be no question of it being left to decay or of it having to be compulsorily purchased. I should like to hear the Minister's views on that point.
This is an important and necessary Bill, although complicated and not very glamorous in legislative terms. It could easily be made more effective if the amendments I have suggested on fines, wasteland, trees and minerals were accepted—and hopefully even one on listed buildings—in principle by the Government and brought forward in Committee. Indeed, with the help of the Government draftsman I should be happy to table such amendments myself. I say that because I should not like to find myself in the position of the Minister saying my proposals were good in substance but badly drafted. I look forward to a reply from the Minister which will be acceptable to me and to the noble Lord, Lord Nugent, to whom we are grateful for the work he has undertaken in bringing the Bill before the House.
§ 5.49 p.m.
§ The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin)
My Lords, I too welcome the Bill, which Mr. Stephen Hastings introduced in the other place as a Private Member's Bill, and I am grateful to my noble friend Lord Nugent for his typically clear and concise introduction of it in your Lordships' House. As the noble Baroness, Lady Birk, said, it fulfils a hope I expressed to the noble Lord, Lord Ponsonhy, last October when we were discussing amendments in Committee on the Local Government. Planning and Land Bill. I said then that I hoped it would not be too long before we had an opportunity to consider amendments, on which we are all agreed in principal, to the enforcement provisions in Part V of the Town and Country Planning Act 1971 for planning control and control over listed buildings.
These are important provisions, as my noble friend Lord Nugent said, because they are the means by which local planning authorities seek to enforce their decisions on development control matters and control over listed buildings. Unless there are effective enforcement provisions for these purposes, the decisions which planning authorities take will be flouted and this brand of planning law will be brought into disrepute. These provisions are also important to my right honourable friend the Secretary of State for the Environment because they seek to improve the present arrangements for him to process and determine enforcement appeals and listed building enforcement appeals. At present there are on average some 6,000 enforcement appeals per year and the Secretary of State needs effective efficient machinery to deal with this large volume of work. Our experience has been that enforcement appeals sometimes cannot be processed as quickly as we would like, because too much depends on the willingness of appellants and planning authorities 1099 to respond to requests for essential information and formal statements which are required before a public inquiry can be held by an inspector. The enabling power to make procedural regulations for this purpose will therefore help us to give people a better standard of service when an enforcement appeal is made, and with the wide discretionary powers which my right honourable friend will have to determine appeals, he will be able to tailor his decisions more accurately to the circumstances of the individual appeal.
My Lords, if this sounds too much like more fine tuning I will simply say that fine tuning is not to be despised in development control matters. Indeed, as many of us who have served on planning committees know, it is often possible with small adaptations or carefully phased planning conditions to make a particular development acceptable which would otherwise not be permitted.
The noble Baroness, Lady Birk, expressed concern that the Bill does not contain everything that she would like it to contain. I accept that, but we should rememeber that it is not easy for a Private Member to sponsor a complicated Bill, and the Bill as drafted contains what are to my mind the essential amendments to the present enforcement provisions in the 1971 Act. The noble Baroness said that this Bill should have contained the provision which was in Schedule 12 to the 1979 version of the Local Government, Planning and Land Bill, to take away (a) in Section 9 88 (1) of the 1971 Act for minerals enforcement appeals, thus removing a mineral operator's right to appeal against an enforcement notice on the ground that planning permission ought to be granted, or a conditional limitation on a planning permission ought to be discharged.
I agree that there are arguments on both sides. The important thing, as so often with enforcement and planning control, is to get the balance right. One argument is that if the ground (a) appeal was removed, planning authorities would be in a stronger position to enforce planning control effectively on mineral operators; and that they need to be in a stronger position because the damage done by unlawful mineral working is irremediable. I am not yet convinced that enforcements should be tougher in this respect on mineral operators than on anyone else. The fact is that even if the ground (a) appeal was removed, a mineral operator could still submit a fresh planning application to the local authority at the same time as he submits an enforcement appeal to the Secretary of State. The practical effect would then be that if the authority refused the application, there would be the likelihood of a planning appeal to the Secretary of State. Since a planning appeal would usually be made in these circumstances, the result would be that the Secretary of State would have to consider the planning merits of the unlawful mineral working. In other words, there would still be the equivalent of a ground (a) appeal.
Having said that, in consultation with my noble friend Lord Nugent of Guildford, I am willing to consider any further representations made by the noble Baroness and by the local authority associations on this point, if they wish to pursue it. We could then examine this point in detail at Committee stage. Indeed, I gladly undertake together with my noble friend to look carefully at the other points which the noble 1100 Baroness, Lady Birk, has raised, and we will see whether all or any of them can be introduced at Committee stage. I do congratulate my noble friend Lord Nugent of Guildford on introducing this Bill in your Lordships' House and I join him in hoping that further progress will be speedy and successful, so that the further improvements it makes to this part of our development control and listed building legislation can be realised and practised as soon as possible.
As to the point made by the noble Baroness, Lady Birk, about compelling owners to put listed buildings into a state of good repair, I am not sure as to how far one would be able to go with this. I can immediately think of problems which compulsion would bring, but just as I undertook to consider her other points, I would want to come back on this point at a later stage. Meanwhile, I again thank and congratulate my noble friend Lord Nugent of Guildford for introducing this Bill.
§ Baroness Birk
My Lords, before the noble Lord sits down, I wonder whether he could answer a question, which could be of help when we reach Committee stage? The amendments I was putting seemed to me to fall into two parts. First, there were those amendments on fines, trees, wasteland and minerals, which were in Schedule 12 of the No. 1 Bill. As the noble Lord seemed to be opening that door a little, it would be helpful to know why, if those items were in the No. 1 Bill and were also asked for in another place, and had already been drafted by parliamentary counsel, is there any difficulty about them? Secondly, although I agree that the point about listed buildings is a different one, because it was not in the schedule, I am frankly mystified why there should be any difficulty about something which has already appeared in a schedule in a Government Bill.
§ Lord Bellwin
My Lords, I understand entirely that we are talking about two separate issues. There is really no mystery or difficulty about the first category which the noble Baroness mentioned. So far as I am aware, there should be not much difficulty in bringing these forward and I was being my usual cautious self in the way that I put the matter, just in case, in the event, there should be any difficulty with some aspects of it. In principle at least I entirely accept what the noble Baroness has said.
§ 5.57 p.m.
§ Lord Nugent of Guildford
My Lords, I should like to thank both the noble Lord and the noble Baroness for their very kind reception, and I also wish to congratulate the noble Baroness, Lady Birk, on her welcome recovery; it is nice to hear her in such good voice again after her indisposition before the House went into recess. As ever, the noble Baroness showed a most impressive grasp of the complexities of this obscure subject.
With regard to the points which the noble Baroness so cogently put to my noble friend, I have a great deal of sympathy with the point about mineral appeals. I was interested in the argument which my noble friend Lord Bellwin put up. The mechanical problem here is that the extractor would probably be able to find a way around things. This would make an interesting 1101 little debate in Committee and it is a point with which I have some sympathy, in the same way as I sympathise with some of the other points made by the noble Baroness. She made a cogent argument that if certain items appeared in the previous Bill then they must be pretty good.
Clearly, the noble Baroness is opening up a new and very important subject in this question of listed buildings and again I have a great deal of sympathy with her view, though I dare say there might be such onerous financial implications that it might not be possible. In any event, it is an interesting point and one that we can discuss in Committee. I think I need do no more than thank noble Lords for their generous reception and beg to commend the Second Reading of the Bill.
§ On Question, Bill read 2a, and committeed to a Committee of the Whole House.