HL Deb 19 June 1981 vol 421 cc834-45

12.18 p.m.

Lord Nugent of Guildford

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 Nugent of Guildford.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clauses 1 and 2 agreed to.

Schedule [Amendments relating to enforcement of control]:

Lord Nugent of Guildford moved Amendment No. 1:

Page 8, line 47, at end insert— ("(2) In section 89(4) and (5) of that Act for the words "£50" there shall be substituted the words "£100".").

The noble Lord said: I beg to move Amendment No. 1 standing in the names of the noble Baroness, Lady Birk, and myself. Amendments Nos. 1 to 5, with the exception of Amendment No. 4, which is simply a drafting amendment, are all concerned with fulfilling the undertaking which my noble friend Lord Bellwin gave on Second Reading, that the fines would be increased to present-day values in order to make them fully effective. I shall therefore move them one by one, and briefly explain what they do.

The first amendment, on page 8 at line 47, has the effect of increasing from £50 to £100 the amount of the maximum of each daily penalty now specified in subsections (4) and (5) of Section 89 of the 1971 Act; that is, the master Act. The effect of this amendment is to increase the maximum daily penalty which is available on summary conviction for an offence involving, respectively, failure to secure compliance with the requirements of an enforcement notice and permitting a use to continue when it is in breach of the requirements of an enforcement notice, because in both cases there will already have been a prior conviction for the same offence before the magistrates' court. I beg to move.

Baroness Birk

I am very happy to support this series of amendments, to which I put my name; and as I understand the Government are going to accept them I am even more pleased, because they are amendments for which I was pressing at Second Reading. I think they now make the fines more realistic. I have one minor reservation. I am only sorry that they are not going to be updated to reflect the substantial inflation which is taking place and which I pointed out on Second Reading; but I gather there is a problem in the Home Office in that respect which is concerned with all the fines.

Lord Nugent of Guildford

I am grateful to the noble Baroness for her support. In fact, it is very much to her credit that these amendments are down at all. The only fears that my noble friend and I had were that we might have difficulties when the amendments go back to another place and we might be in danger of losing the Bill. But as it is quite clear that there is general support all round, these amendments will now be made and then they will be brought into effect. So we have every reason to be grateful to the noble Baroness.

Lord Evans of Claughton

May I say very briefly indeed that the amendments have support from these Benches, and I hope the matter will go through to a very rapid conclusion.

The Earl of Avon

I should just like to say that, of course, the Government entirely agree with these amendments, and were very happy to make them after the noble Baroness made her intervention at Second Reading. My noble friend Lord Bellwin is unable to be here today, but I know that otherwise he would say how much he appreciates the suggestions of the noble Baroness at Second Reading.

On Question, amendment agreed to.

Lord Nugent of Guildford moved Amendment No. 2:

Page 9, line 6, after ("omitted") insert— ("(aa) in subsection (7), for the words "£50" there shall be substituted the words "£100";").

The noble Lord said: This second amendment has the effect of increasing from £50 to £100 the amount of the maximum daily penalty specified in subsection (7), as amended, of the 1971 Act, which provides for a penalty on summary conviction for an offence involving the continuing contravention of the requirements of a stop notice served by the planning authority under subsection (1) of Section 90 of the 1971 Act. In this case also the offence is a continuing offence in respect of which there will already have been a prior conviction which of course carries a maximum penalty of £1,000 on summary conviction. So the increase from £50 to £100 is reasonably in proportion. I beg to move.

On Question, amendment agreed to.

Lord Nugent of Guildford moved Amendment No. 3:

Page 10, line 17, at end insert— ("(2) In section 93(5) of that Act (penalty for reinstating or restoring buildings or works demolished or altered in compliance with an enforcement notice) for the words "£400" there shall be substituted the words "£1,000".").

The noble Lord said: I beg to move Amendment No. 3, which stands in the names of the noble Baroness and myself. The purpose of this amendment is to increase from £400 to £1,000 the amount of the maximum penalty specified in subsection (5) of Section 93 of the 1971 Act on summary conviction for an offence involving the reinstatement or restoration of buildings or works which have been demolished or altered in compliance with the requirements of an enforcement notice. The effect of this amendment, therefore, as I say, is to increase the maximum penalty for this offence so that it is the same amount, £1,000, as other comparable penalties in the 1971 Act. I beg to move.

On Question, amendment agreed to.

Lord Nugent of Guildford moved Amendment No. 4:

Page 14, line 7, after ("the") insert ("listed building").

The noble Lord said: This is a purely drafting amendment, to insert the words "listed building" after "the" in line 7. I beg to move.

On Question, amendment agreed to.

Lord Nugent of Guildford moved Amendment No. 5:

Page 14, line 40, at end insert— ("9A. In section 98(4) of that Act (penalty for failure to secure compliance with listed building enforcement notice) for the words "£50" there shall be substituted the words "£100".").

The noble Lord said: The purpose of this amendment is to increase from £50 to £100 the amount of the maximum daily penalty specified in subsection (4) of Section 98 of the 1971 Act on summary conviction for a continuing failure to secure compliance with the requirements of a listed building enforcement notice. In this case, also, this is a penalty for a continuing offence, and there will of course have been a previous conviction for the substantive offence, for which there is a penalty of £1,000. So this increase in the daily rate is again in proportion. I beg to move.

On Question, amendment agreed to.

12.26 p.m.

Lord Nugent of Guildford moved Amendment No. 6: Page 15, line 5, at end insert—

("Trees

10A.—(1) In section 103 of that Act (enforcement of duties as to replacement of trees which are the subject of tree preservation orders) in subsection (3) (appeals to the Secretary of State) the words from "and the provisions" to the end of the subsection shall cease to have effect.

(2) The following subsections shall be inserted after that subsection:—

  1. "(3A) An appeal under this section shall be made by notice in writing to the Secretary of State.
  2. (3B) The notice shall indicate the grounds of the appeal and state the facts on which it is based.
  3. (3C) On any such appeal the Secretary of State shall, if either the appellant or the local planning authority so desire, afford to each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.
  4. (3D) Where an appeal is brought under this section, the notice under subsection (1) of this section shall be of no effect pending the final determination or the withdrawal of the appeal.
  5. (3E) On the determination of an appeal under this section, the Secretary of State shall give directions for giving effect to the determination, including, where appropriate, directions for quashing the notice under subsection (1) of this section or for varying its terms.
  6. (3F) On such an appeal the Secretary of State may correct any informality, defect or error in the notice under subsection (1) of this section or give directions for varying its terms if he is satisfied that the correction or variation can be made without injustice to the appellant or the local planning authority.".

(3) In subsection (5) of that section, after the words "enforcement notice", in the second place where they occur, there shall be inserted the words "a copy of which has been".").

The noble Lord said: I beg to move Amendment No. 6, which refers to trees. The purpose of this amendment is to insert a new paragraph, paragraph 10A, in the schedule to the Bill which has the effect of amending Section 103 of the 1971 Act, dealing with the enforcement of a local planning authority's powers to require the replanting of a tree or trees. The amendment repeals the concluding provisions of subsection (3) of Section 103 of the 1971 Act from the words "and the provisions" to the end of that subsection, and substitutes for them six new subsections, numbered (3A) to (3F), as set out on the Marshalled List, which correspond to similar provisions for enforcement appeals in Sections 88 and 88A in the 1971 Act, which are being amended by provisions in paragraph 1 of this Schedule.

These new subsections numbered (3A) to (3F)—and may I here explain that this strange structure of (3A) to (3F) is what the parliamentary draftsman advises is essential; I am bound to confess that I do not understand why, but there it is—specify how an appeal is to be made to the Secretary of State against a notice requireing the replanting of a tree or trees; what procedures the Secretary of State must follow in dealing with any such appeal; that the requirements of the notice are to be suspended until the appeal is finally determined or is withdrawn; and what additional powers of correction or variation of the notice are available to the Secretary of State when he is determining such an appeal. All these provisions are exactly comparable to the parallel provisions for the Secretary of State to deal with enforcement appeals which are being amended by this Bill, and it is clearly sensible that these two sets of appeal provisions should be the same.

Sub-paragraph (3) of this new paragraph 10A makes a minor drafting amendment to subsection (5) of Section 103 of the 1971 Act so that it refers to the copy of an enforcement notice which has been served by the local planning authority instead of the notice itself. I apologise for the complexity of this amendment. The noble Baroness is really a professional in these matters, and I am sure she will understand it; but the purpose is simple even if the form is complicated. I beg to move.

Baroness Birk

This amendment is one which I very much welcome as, again, it was something which I pressed for on Second Reading. I feel particularly strongly about this subject because we have suffered such a loss of trees in this country that anything that will strengthen tree preservation, protection and replacement is really of great importance. There is just one point I should like to put to the noble Earl the Minister. I understand that the whole areas of tree preservation, protection and replacement is under review by the two local authority associations, the Association of Metropolitan Authorities and the Association of District Councils. I hope that he can today give us some indication that the Government will respond positively when the associations come forward with proposals for improvement. If he is unable to do so, perhaps he will write to me. I am pleased that the Government are going to accept this amendment.

The Earl of Avon

On behalf of the Committee, I should like to thank the noble Lord, Lord Nugent, for his explanation of this amendment and to say that the Government will accept it. The noble Baroness will be pleased to know that the department is as interested in trees as she is, and while I cannot give an assurance that we will respond totally favourably until we see what the councils produce, I can assure her that the matter will be looked at carefully.

On Question, amendment agreed to.

12.32 p.m.

Lord Nugent of Guildford moved Amendment No. 7: Page 15, line 5, at end insert—

("Waste land

10B. The following section shall be substituted for section 104 of that Act:— Penalties for non-compliance with notice as to waste; land. 104.—(1) The provisions of this section shall have effect where a notice has been served under section 65 of this Act. (2) Subject to the following provisions of this section, if any owner or occupier of the land on whom the notice was served fails to take any steps required by the notice within the period specified in it for compliance with it, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £200. (3) If a person against whom proceedings are brought under subsection (2) of this section as the owner of the land has, at some time before the end of the period allowed for compliance with the notice, ceased to be the owner, he shall, upon information duly laid by him, and on giving to the prosecution not less than three clear days' notice of his intention, be entitled to have the person who then became the owner brought before the court in the proceedings. (4) If a person against whom proceedings are brought under subsection (2) of this section as the occupier of the land has, at some time before the end of the period allowed for compliance with the notice, ceased to be the occupier, he shall, upon information duly laid by him, and on giving to the prosecution not less than three clear days' notice of his intention, be entitled to have any person who then became the occupier brought before the court in the proceedings. (5) If—

  1. (a) a person against whom proceedings are brought under subsection (2) fo this section as the occupier of the land, has, at some time before the end of the period allowed for compliance with the notice, ceased to be the occupier; and
  2. (b) nobody then became the occupier,
he shall, upon information duly laid by him, and on giving to the prosecution not less than three clear days' notice of his intention, be entitled to have the person who is the owner at the date of the notice brought before the court in the proceedings. (6) If, after it has been proved that any steps required by the notice under section 65 of this Act have not been taken within the period allowed for compliance with that notice, the original defendant proves that the failure to take those steps was attributable, in whole or in part, to the default of a person specified in a notice under this section—
  1. (a) that person may be convicted of the offence; and
  2. (b) the original defendant shall be acquitted of the offence if he further proves that he took all reasonable steps to ensure compliance with the notice.
 (7) If, after a person has been convicted under the preceding provisions of this section, he does not as soon as practicable do everything in his power to secure compliance with the notice, he shall be guilty of a further offence and liable on summary conviction to a fine not exceeding £20 for each day following his first conviction on which any of the requirements of the notice remain unfulfilled. (8) Any reference in this section to the period allowed for compliance with a notice is a reference to the period specified in the notice for compliance with it or to such extended period as the local planning authority who served the notice may allow for compliance with it.

10C. The words "who served the notice in question under section 65 of this Act" shall be added at the end of section 106 of that Act (appeal to Crown Court).

10D. In section 107 of that Act (execution and cost of works required by notice as to waste land) the words "who served the notice" shall be inserted after the words "the local planning authority"—

  1. (a) in both places where they occur in subsection (1); and
  2. (b) in subsection (2).").

The noble Lord said: I beg to move Amendment No. 7. This refers to waste land and will give the local authorities more effective power to preserve amenities by combating unsightliness when it occurs. The provision in Section 65 of the 1971 Act enables local authorities to serve notices on the owner and occupier of neglected or unsightly land requiring proper maintenance. Noble Lords will be aware of the difficulty of making this particular law effective. In the event, Section 104(2) of the 1971 Act which deals with the penalty of non-compliance with these notices has proved ineffective because it can only operate if some positive action is taken to continue or aggravate the existing situation. This is the point. Non-compliance with an order does not of itself attract the penalty. The proposed amendment removes this deficiency by providing that non-compliance by itself constitutes an offence and by creating a second offence in the event of failure to comply with a notice of conviction. It is a rather complicated clause which provides that where the property changes hands or the occupiers change it will be possible still to pursue the matter effectively and get a remedy. I beg to move.

Baroness Birk

I support this amendment which, again, I was asking for on Second Reading. At this point—and I am afraid that I omitted to do so earlier—I should like to thank the noble Lord, Lord Nugent, for explaining it all so carefully that I have not had to spend any time in explanation. This is an extremely important amendment because, for some extraordinary reason—I do not think anyone knows why it happened—this was left out in the original Act of 1971. As the noble Lord explained, in order to be able to bring any enforcement to bear on the commission of an offence, a second offence had to be committed—which was not only ludicrous but highly destructive of the environment. This is an important amendment and I am delighted to understand that the Government are going to accept it.

On Question, amendment agreed to.

Lord Nugent of Guildford moved Amendment No. 8:

Page 15, line 5, at end insert— ("10E. In section 109(2) of that Act (penalties for contravention of advertisement control regulations)—

  1. (a) for the words "£100" there shall be substituted the words "£200"; and
  2. (b) for the words "£5" there shall be substituted the words "£20".").

The noble Lord said: This amendment refers to advertisements. It is one of the amendments which really went with the first group referring to the increase of penalties to a realistic level. The effect of the amendment will be to increase the maximum amount specified in Section 109(2) of the 1971 Act on summary conviction for an offence involving contravention of regulations which control the display of outdoor advertisements; namely, the Town and Country Planning Act 1969. The present maximum penalties in Section 109 of the 1971 Act are £100 for the offence and £5 for the daily offence. These maxima are now quite out of line, particularly in relation to the income which is usually obtained from unlawful outdoor advertising. The amendment therefore raises them to the more realistic level of £200 for the main offence and £20 for the continuing daily offence; so that they will have a more effective deterrent influence on people who help themselves to this kind of advertising.

On Question, amendment agreed to.

12.35 p.m.

Lord Nugent of Guildford moved Amendment No. 9:

Page 17, line 24, at end insert— ("20A. In Schedule 9 to that Act (determination of certain appeals by person appointed by Secretary of State) in paragraph 2 (which relates to the powers and duties of the person determining an appeal—

  1. (a) in sub-paragraph (1)—
    1. (i) in paragraph (b), for the words "subsections (4) to (6) of that section" there shall be substituted the words "section 88A and section 88B(1) and (2) of this Act".
    2. (ii) in paragraph (d), for the words "subsections (4) and (5) of that section" there shall be substituted the words "section 97A(1) to (4) of this Act"; and
    3. (iii) in paragraph (e), for the words "sections 88(4) and (5) of this Act" there shall be substituted the words "subsections (3E) and (3F) of that section; and
  2. (b) in sub-paragraph (2)—
    1. (i) for the words "88(2)" there shall be substituted the words "88(7)"; and
    2. (ii) for the words "97(2)" there shall be substituted the words "97(6), 103(3C)".").

The noble Lord said: The purpose of this new paragraph is to make some minor consequential amendments which were overlooked when the Bill was being drafted. The purpose of Schedule 9 to the 1971 Act is to specify the powers and duties of inspectors appointed by the Secretary of State to determine certain planning and enforcement appeals which are made in the first instance to the Secretary of State himself. Paragraph 2 of Schedule 9 of the 1971 Act therefore gives to the inspector who will determine one of these appeals the same powers as the Secretary of State has under Part V of the 1971 Act.

Since some of the Secretary of State's powers—for example, to determine enforcement appeals—are being amended by this Bill, it is appropriate to ensure that an inspector's powers will correspond in future to the new powers given to the Secretary of State. That is the effect of this group of amendments. I do not propose to go into further detail, but if noble Lords want any further explanation I shall be pleased to give it. It is fairly complicated and could run to considerable length; but the purpose is quite straightforward.

On Question, amendment agreed to.

Lord Nugent of Guildford moved Amendment No. 10:

Page 17, line 34, after (""issued"") insert— ("(bb) paragraph 30 is repealed;").

The noble Lord said: I beg to move Amendment No. 10. The "paragraph 30" referred to which is to be repealed in Schedule 16 to the Local Government Act 1972 reads: The local planning authority who may appeal to the Crown Court under section 106…shall be the authority who serve the notice in question under section 65 or, if the notice was served by the Secretary of State, the authority named in the notice". This definitional paragraph was necessary at the time as a result of the split powers between the county and the district councils. Now that that split is done away with, it is no longer necessary. The purpose of the amendment is to remove it from the statute book. I beg to move.

On Question, amendment agreed to.

On Question, Whether the schedule, as amended, shall be the schedule to the Bill?

12.38 p.m.

Baroness Birk

There is one outstanding point which has not been covered by the amendment moved by the noble Lord, Lord Nugent. This is the point regarding mineral enforcement. During the Second Reading (Hansard, 1st June, column 1096) I referred to the problems caused by the fact that a mineral operator can very profitably carry out the extraction of minerals without planning permission and in defiance of an enforcement notice, for some considerable time. The two associations which represent all the mineral planning authorities—the Association of Metropolitan Authorities and the Association of County Councils—I confess could not understand why the Government dropped the proposal contained in the original version of the Bill which would have dealt with this problem.

Following further discussion between the associations and departmental officials, I understand that the reason for it not being in the Bill together with the omission of provisions originally in the Local Government (No. 1) Bill is that it is felt there were too few cases to justify changes in legislation and that, anyway, the proposed change, the way it was originally drafted in the Local Government (No. 1) Bill, could have been got round by the operators.

I appreciate the argument that the law should not normally be changed for a relatively uncommon problem—depending of course upon the problem—but when this difficulty arises, however, it is a major one in the particular locality in which it occurs and one about which local people can feel strongly. Obviously, there is no point in incorporating an amendment which operators could readily get round, and it would of course mean a new amendment. It would also mean, as has been pointed out, that there would be a risk that the whole Bill may be lost if something were introduced at this stage. This is why I have not put down an amendment and do not intend to put down an amendment at Report stage.

I should like a clear indication from the Government that if, as I have said, an amendment is not pressed to this legislation, when there are appeals against enforcement notices on mineral working they will be given top priority so that operators in this case—I do not think there will be too many of them—can gain little or no financial benefit from breaching planning control.

12.42 p.m.

Lord Nugent of Guildford

Before my noble friend replies, I support the noble Baroness in her view. This is a very complex and difficult field in which to legislate. But on the ground there are cases—not many—where the unscrupulous operator does do things that he ought not to do and it causes serious offence locally. It is most desirable that there should be effective action taken. Clearly, in a private Bill of this kind there would be an obvious danger, when it went back to the other place, of the industry interests feeling that they had not been sufficiently consulted on what is a very sensitive area for them. Most of the operators are responsible and co-operative. It is only the odd one that is a "cowboy" and does this kind of thing.

I can imagine that if this provision had been put in this Bill then one voice in the other place saying "object" could lose the whole Bill. Therefore, this kind of provision has to be in a Government Bill. I hope that next time the Government are legislating in this field they will cover it. So much of what we have been talking about seems so technical but on the ground it is enormously important.

We were talking about the provision of waste land earlier. This is something near to my heart. The preservation of the green belt round London is a continuous battle both on the inside and on the outside, and one of the first steps trying to break the planning control by an owner of land who hopes to transform its value from say £1,500 an acre to £1½ million an acre when developed is to neglect it and allow it to become a bed of weeds and brambles which is an offence to everybody, so that it will support an application to put some buildings on it.

Therefore it is most important that local authorities should have an effective weapon to deal with it straight away. They have not had that up to now. These complex technicalities we discuss here have tremendous practical implications. The support of the noble Baroness in this field is very much appreciated. If I may give my personal support to Lady Birk's plea to my noble friend that this point should be remembered in the DoE when legislation next comes along, I should be happy to leave it at that.

Lord Evans of Claughton

May I add my support to the remarks made by the noble Baroness? I agree that the problem is not a frequent one or one that the vast majority of operators indulge in; but the occasional maverick in certain areas, particularly the North of England—and, I am sure, in other parts of the country—can do a very great deal of damage. It is particularly important, both in this field and in the field of waste land, that we remember the debates during the Local Government Act. The noble Viscount, Lord Ridley, and myself were very anxious about the problems relating from changes in the derelict land grant applications. The whole of the subject of waste land, minerals and derelict land is one of great importance. I hope that the noble Lord the Minister will be able to give assurances that the Government have this very much in mind. It is a very serious matter in some parts of the country on some occasions.

12.45 p.m.

The Earl of Avon

Following the remarks on this issue, minerals enforcement appeals, which the noble Baroness made on Second Reading of this Bill, I know that my noble friend carefully reviewed the matter in consultation with ministerial colleagues in the Department of the Environment. He came to the conclusion that the case in favour of making this amendment was not as convincing as he had originally thought.

The origin of the proposal that there should be a separate enforcement régime for planning control over the winning and working of minerals is to be found in one of the recommendations in Chapter 11 of the report of the Stevens Committee on minerals planning control, in February 1976. But, when one examines that particular recommendation, it is clear that the Committee based virtually their whole case for a separate minerals enforcement régime on the apparent reluctance of planning authorities to serve stop notices for unlawful minerals development. In the Committee's view, this reluctance to serve a stop notice was due to the risk of a planning authority having to pay compensation for wrongfully stopping development; but they made the mistake of founding their whole argument on the time it had taken for one mineral enforcement appeal to the Secretary of State for Wales to pass through all the stages of determination, including the Court of Appeal. We should not expect anything like this to happen again: indeed, the Secretary of State for the Environment takes particular care to ensure that any enforcement appeal, which involves an associated stop notice, is dealt with at all stages as a matter of the first priority because he realises that the amount of any compensation payable if the appeal is successful may be increased as a result of delay in dealing with the appeal.

Moreover, the results of an analysis of minerals enforcement appeals which the Department of the Environment have recently carried out show that, in the great majority of minerals enforcement appeals dealt with in the past eight years, the enforcement notice has been upheld by the Secretary of State, so that there was no risk of compensation to be paid by the planning authority if they had also issued a stop notice.

Finally, there is the point (which was also mentioned by the noble Baroness) that a mineral operator could, in practice, circumvent the removal of the "ground (a)" appeal by securing a refusal of a planning application and making a minerals planning appeal to the Secretary of State. Having said this, the Government recognise the noble Lady's concern joined by my noble friend Lord Nugent and the noble Lord, Lord Evans, that there should be effective enforcement of minerals planning control; and I know that my noble friend is concerned to ensure that his Department's procedures for dealing with minerals enforcement appeals seek to avoid putting planning authorities at risk of increased compensation for a stop notice in the unwelcome circumstances where an appeal succeeds on legal grounds. I hope, therefore, that the Committee will be able to accept these assurances on behalf of my noble friend on this point. The Government join in wishing this Local Government Planning (Amendment) Bill a swift journey through the House and will continue to give it their full support.

Schedule, as amended, agreed to.

House resumed: Bill reported with amendments.