§ 6.9 p.m.
§ Lord Skelmersdale
My Lords, on behalf of my noble friend Lord Bellwin, 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 Skelmersdale.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The BARONESS WOOTTON OF ABINGER in the Chair.]
§ Clause 1 [Application for planning permission etc. in anticipation of disposal of Crown land.]
Lord Skelmersdale moved Amendment No. 1:
Page 3, leave out from beginning of line 4 to ("but") in line 7 and insert ("(8) Any permission or consent granted before the date on which this section comes into force which would have been a valid planning permission, listed building consent or conservation area consent but for the fact that—
The noble Lord said: During the debate on Second Reading, the noble Baroness, Lady Nicol, whose absence from the Committee I regret but the reasons for which I fully understand, referred to doubts which had been expressed about the drafting of this very important subsection (8) of Clause 1. Of course, the same point had been made earlier in another place and in writing by the Association of County Councils. It remains our view that the original drafting achieved the desired effect of validating permissions which authorities had unlawfully granted for the development of Crown land in which there was no
subsisting private interest on the basis of a misapprehension about the effect of Section 266 of the 1971 Act and its Scottish equivalent.
§ Nevertheless, we have felt it right to ask parliamentary counsel to redraft the subsection to overcome any doubts which might still exist in the minds of some authorities about the validity of these permissions after the Bill comes into operation, and this amendment is the outcome. It has the same effect as the original subsection (8) but we hope that those who were worried will find it easier to understand. I beg to move.
§ Lord Graham of Edmonton
I begin by thanking the noble Lord the Minister for the care which clearly has been taken and the notice that has been taken by the Minister and those who advise him of what has been said outside this Committee and the other place. I would not cavil with some of the words he used, that Ministers and his advisers felt that the purport was clear and that one could understand what was meant. However, I am sure the Minister understands that when we come to retrospection, and clarity, and although I tried to elicit from the Minister the number of cases that might be involved where people might be worried and for whom this is an absolute cover—that is a proper word—we are uncertain. What we are about to do is to ease the minds of people who, through no fault of their own, have been given advice or have been acting upon advice and as a result find there is a doubt as to whether their position is, as it were, legal and valid. It is therefore right that the Minister should begin what I think will be a short exchange by clarifying the situation.
The Minister will also be aware that on Second Reading I drew to his attention a local case relating to the Enfield War Memorial hospital. May I say how grateful I am for the prompt and full reply that he sent me. There was a point of uncertainty, and we must ensure that once this legislation is enacted there is no dubiety.
Our objective tonight and at other stages is to try to look backwards and make sure that there are no circumstances which might be found and could be pointed to in the future as a loophole or a certain circumstance. The Minister and his advisers are wise to have tabled this amendment. If he had merely come back to say that the words were clear that would have been helpful; but he has done even better. As the Minister says, the words are more or less the same but in a form which I believe, and which I am advised those outside the Committee believe, will be clearer and therefore acceptable.
The Minister was right to draw attention to what was said by my noble friend Lady Nicol, who had raised this point. Having read the report of what took place in another place, it is quite clear that some Members were able to put forward a number of illustrations in their areas which were of considerable concern. The Government are wise, and I am grateful to the Minister. I thank him for making sure that an unhappy situation has been corrected. I repeat that, other than the point I made on Second Reading, it was no one's fault and there is no party animus in this matter at all. It is clear that in the light of the court judgment in November one needed to try to put the 934 matter right. Therefore, we on this side of the Committee fully support the words and the spirit in which this amendment has been moved by the Minister.
§ Lord Skelmersdale
I am grateful to the noble Lord, Lord Graham of Edmonton, but would also say that even where there are anxieties in only one mind, and not the tens, dozens, hundreds or even the unnecessarily high (as I think) thousands that have been quoted in certain quarters—not by the noble Lord, I know—if we can allay that one anxiety we will have done a good job this evening.
§ On Question, amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Control of development on Crown land]:
§ 6.18 p.m.
Lord Graham of Edmonton moved Amendment No. 2:
Page 3, line 22, leave out subsection (3).
The noble Lord said: This amendment was to have been moved by my noble friend Lady Birk, but the Committee will know that I am not her. However, I have her authority, approval and support in relation to this amendment. I am assuming, not having seen what I would call a marshalled list of how the amendments will be taken, that the Minister will be aware that Amendment No. 2 and Amendments Nos. 4, 5 and 6 very much hang together.
Amendment No. 4: Page 4, line 32, at end insert—
("( ) The provisions of section 90 of the Act of 1971 (power to stop further development pending proceedings on enforcement notice) shall have effect where a special enforcement notice has been issued under the provisions of this section as if that notice were an enforcement notice issued under section 87 of that Act.").
Amendment No. 5: Page 4, line 32, at end insert—
("( )If, on the determination of an appeal under section 88 of the Act of 1971 against an enforcement notice purporting to have been issued under the provisions of section 87 of that Act or a special enforcement notice purporting to have been issued under the provisions of this section, it appears to the Secretary of State that the notice was not validly issued under those provisions but would have been valid if it had been issued as a special enforcement notice under the provisions of this section or as an enforcement notice under the provisions of section 87 of the Act of 1971, as the case may be, he may, if satisfied that this can be done without injustice to the appellant or the local planning authority, vary the terms of the notice so as to convert it into such a notice; and upon any such variation the notice shall be deemed to have been issued and at all times to have had effect and been valid as such a notice, but without prejudice to any challenge to its validity on any other grounds.").
Amendment No. 6: Page 4, line 32, at end insert—
("( ) The provisions of subsection (2)(a) of section 266 of the Act of 1971 shall cease to be applicable to any notice issued under the provisions of section 87 of that Act.").
§ What we seek to do is delete a part of the clause and spell out why we believe that part should be deleted. That is the main substance of what I intend to deal with tonight.
Amendment No. 2 deals with what is in some quarters the vexed question of the necessity for the department which owns the Crown land to have a power of veto—that is what it amounts to—over the actions of the local authority. The part of the Bill that we seek to strike out is, as the amendment states:
Part 3, line 22, leave out subsection (3).
This relates to the power and the control of development on Crown land. The part we want to strike out is:
No special enforcement notice shall be issued except with the consent of the appropriate authority.
We need to raise the question of "special enforcement notice", which of course is different and is additional to, and must serve a different purpose from, what we all know in planning matters as an enforcement notice and what it is supposed to do. The main point I want to make, therefore, is that we on this side of the Committee, and outside—I am not saying that the Minister will not be able to persuade us by giving assurances on how this will work—jib at why on such matters there is a necessity for the decisions of the local planning authority to be capable of being overridden by "the appropriate authority".
We shall need to make reference to what was said in the other place as well as here on Second Reading. Your Lordships must bear in mind that we are talking about Crown land and about undesirable developments by other than the Crown. We are referring to the manner in which that undesirable development can be stopped or controlled, with all the safeguards that that will mean. In another place the Minister said, on 7th December, in respect of this subsection and the "special enforcement notice":
The service of such notice will require the consent of the Government Department or Crown authority concerned, and this is more than a formality.
That is our first unease.
The authority would have to be satisfied that it is right for such action to be taken, before giving consent.
The authority in this instance is not the local authority but authority with a capital "A". It is the department which owns or controls the Crown land. In effect, the local authority has to decide, and then it will be covered by the superior authority.
The Minister continued:
The right of appeal against a special enforcement notice would be more limited than in the case of an ordinary enforcement notice. As the action will normally be taken against a person who has no right to be on the land, we consider that he should not be able to raise issues relating to the planning merits or what he has done, but should be restricted to the factual grounds of whether what is alleged has actually taken place and whether it amounts to development".—[official Report, Commons, 7/12/83; col. 350.]
That is what the Minister in another place said.
§ The Association of Municipal Authorities has been following this matter with special care and diligence. The Committee wants to be sure that as currently drafted the special enforcement procedures—those contained in Clause 2—would enable action to be taken against contraventions of planning conditions. We are not at all certain of that; nor are we certain that the procedures would enable an authority to require steps to be taken to make an unauthorised development comply with conditions or to remove or alleviate injury to amenity.
§ I consider that by providing that Section 87 of the 1971 Act shall apply to breaches of planning control on Crown land—without the need to have the special enforcement notice—that would be adequate. In the amendments we are really querying whether the subsection is necessary and whether the action that the Minister wants to achieve cannot be achieved in 936 another place. We also wonder whether there is any need for it at all.
The special enforcement procedure is complex. The Minister needs to spend a little time spelling out for us how it will work. My honourable friend in another place, the Member for South Shields, Dr. David Clark, spelt the matter out clearly. He said:
Under the proposed arrangements, before taking enforcement action a local authority will have to do several things. First, it will have to establish that the land involved is Crown land. Secondly, it will have to discover whether the operator in question is a licensee or a trespasser on Crown land. Thirdly, if the operator is a trespasser, it will have to initiate special enforcement procedures and seek the agreement of the relevant Government Department. Lastly, it will have to take the necessary enforcement action.
There is a real problem with the existing legislation, but we have approached it in a rather complex manner".—[Official Report, Commons, 7/12/83; col. 354.]
The Minister needs to satisfy us on this series of amendments whether there is a necessity for this action.
§ We then come to the question of the response of the Minister in another place to these matters. On this side of the Committee we fully accept that trespassers on Crown land should not be in a special category. By virtue of it being Crown land, and of their having no entitlement to an interest in the land, we do not consider that they should be excluded from action to stop or prohibit development. As far as we are concerned, anyone who is in that position needs to be dealt with. We are concerned to make sure that the manner in which they are dealt with is as simple as possible. We ask the Minister: why not just amend the Town and Country Planning Act 1971 to remove the exemptions from planning control on Crown land where the development has been undertaken by a private individual or organisation that does not have an interest in the land?
We know what the Minister said in another place, and it is very interesting indeed. He said:
The question of enforcement notices was raised by a number of honourable Members, who argued that a planning authority should be able to serve a special enforcement notice under clause 2 without the consent of the Crown".
That is the point that I am making at the moment.
However, there will be cases where the Government Department or Crown authority considers that there are good operational reasons for allowing the development to continue which outweigh the environmental reasons for taking action against it".—[Official Report, Commons, 7/12/83; col. 366.]
We are not at all certain whether in actual fact that is the situation. The illustrations that were given are far from satisfactory. The illustrations related to the actions of people who were contravening the use of Crown land; for instance, in lay-bys. That is a very thin base from which to argue the point.
§ I hope that the Minister will understand not merely why we wish to strike out Clause 2, subsection (3), but also the reason for the other amendments that we seek. The Minister may tell us that, contrary to the fears of the authorities, the special enforcement notice will not be used punitively and there is only a very limited basis on which action will be taken. In that case, on this side of the Committee we are willing to accept that. But we want a clear statement from the Minister involved that consent for enforcement action would not be unreasonably withheld. That would go a long way to 937 persuade me at the end of the discussion to withdraw my amendments. I beg to move.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.