Town and Country Planning Bill (Hansard, 6 February 1984)

§ Lord Skelmersdale
After that very sorry news we return to the discussion of Amendment No. 2. The noble Lord, Lord Graham of Edmonton, with his customary courtesy, advised us that he would like to speak to the entire series of his amendments. I had not quite anticipated that, but I shall certainly respond in the same manner. I hope that by the time I have finished I shall have been able to give the noble Lord a comprehensive review of the amendments.
I took it originally that Amendment No. 2 was probing, especially as it has come up at almost every stage of the passage of the Bill so far, both here and in another place. I can only assume that the noble Lord is unhappy with the replies that he has received, either in person or vicariously. As has been explained before, there may very well be operational reasons for a Government department to wish to allow a particular activity on land which it owns to continue. This is sometimes—rather flippantly in my view—referred to as the snack bar in the layby case; but it may very well be for operational reasons that it is temporarily convenient to allow such a thing to continue to operate while being able to remove it once these operational reasons cease to be valid, perhaps when a service station is contemplated, and of course a more normal regime would apply.
So far as planning law is concerned, if the department carries out the activity itself, it is not subject to planning control. The Government can see no reason for allowing enforcement action to be taken against the department's wishes just because the activity is being carried out by someone else. The service of an enforcement notice on a person with an interest in Crown land under Section 87 of the Town and Country Planning Act 1971 and the Town and Country Planning (Scotland) Act 1972 already requires the consent—this is the point—of the Government department or other appropriate authority concerned. Until now, this requirement has not been questioned by either Governments or 938 Oppositions of any complexion over the considerable period that these planning Acts have been the law of the land. The Government consider that the requirement of prior consent is both reasonable and prudent and that the same requirement should apply to special enforcement notices served on trespassers.
Like my honourable friend in another place, to whom the noble Lord, Lord Graham referred, I must reject any suggestion that this requirement makes the whole clause of little value. Of course, there will be a few cases where there is a difference of view about the need for an activity to continue on Crown land despite its environmental effects and where consent for enforcement action is refused. If consent were going to be granted as a matter of course in every case, there would, I submit, be no point in the requirement at all, but Government departments will—I can make this assurance to the noble Lord—give due weight to the environmental argument when considering applications for consent. They will not prevent action being taken unless they have good, valid reasons for doing so. There will no longer be any doubt—as there has been in some situations in the past—that it is possible for action to be taken on environmental grounds provided that the department concerned agrees. If consent is refused, the department concerned may well be called on to justify its decision publicly.
As I have said, this is not a new requirement. It is modelled on an existing provision which the Government believe operates perfectly satisfactorily, and strikes an appropriate balance between the operational needs of a Government department and the rightful environmental concerns of a local planning authority.
Amendment No. 6, as the noble Lord has said, is a logical extension of the amendment that we are now discussing. The Government believe that the requirement for consent before the service of an enforcement notice in relation to development carried out by a private person on Crown land is appropriate, necessary and—as I have just said—works perfectly well in practice. In that case, why change it? I can perhaps put the onus back on the noble Lord for once.
Amendment No. 5 is a little different but again is a slight extension. I regret that it is another amendment where I can only offer sympathy and not support. The Government share fully the objective of making the special enforcement procedure as simple as possible. My colleagues thought carefully about the suggestion that enforcement notices and special enforcement notices should be interchangeable. Unfortunately, our conclusion is that it would not work. An enforcement notice alleges a breach of planning control. In the case of a special enforcement notice, there has, by definition, been no actual breach of planning control because, as the Committee will know, planning control does not exist for Crown land where there is no other interest.
A copy of an enforcement notice has to be served, not only on the owner and occupier of the land, but on "any other person having an interest in the land" and such a person then has a right of appeal. There is no such requirement in relation to a special enforcement notice because it is only issued when no such person is believed to exist. An enforcement notice in respect of operational development may be issued only within a 939 period of four years from the date of the breach of planning control. There is no such limitation for a special enforcement notice. Above all, the right of appeal against a special enforcement notice is more restricted than against an ordinary enforcement notice. Indeed, the only part of the two notices that may be the same is the specification of the steps required to comply with it.
Over and above this, the amendment begs more questions that, it answers. It refers to the Secretary of State being satisfied that the notice can be varied without injustice to the appellant. What about a third party who is found to have an interest in the land? That is, after all, what this part of the Bill is all about. He will certainly need to be given an opportunity to have his say. What about the additional grounds of appeal in the case of a switch from a special to an ordinary notice? The appellant will have to be given a chance to argue them. There are others. I can only conclude that we shall finish up with a very complicated procedure. It will be much easier, where there is a doubt, for the local planning authority to issue two alternative notices, an ordinary notice and a special notice at the outset. Alternative notices are already issued in this way in other cases when a doubt exists about some particular aspect of what is being alleged.
I regret having had to come to this conclusion. Unfortunately, the amendment, attractive as it appears, simply would not work. I could not therefore recommend the Committee to accept it. I have, however, a little cheer to offer the noble Lord if he will bear with me a few more moments. The Government are fully prepared to accept the principle that the stop notice procedure should be capable of being applied to special enforcement notices. This is obviously sensible. The problem is that this is extremely complicated to achieve because the terms of Section 90 of the 1971 Act need modification before they fit the special enforcement notice situation. I have taken advice on this matter. I am informed that at least seven or eight different amendments of Section 90 would be required and yet more amendments to the equivalent Scottish provisions.
Bearing in mind that complaints have already been made about the complexity of this part of the Bill, we concluded that this was not the right way to proceed. The regulation-making power in subsections (8) and (9) is intended to achieve the same objective. The main use that we intend to make of these two subsections is to achieve exactly the same thing. We consider this to be a much neater way than a whole phalanx of amendments to the 1971 and 1972 Acts. In other words, a similar amendment to that currently before us—I refer to Amendment No. 4 on the Marshalled List—would only be one of many. I did, however, say that I would offer the noble Lord some cheer. I am therefore very happy to be able to give him the assurance that once the Bill has been enacted, the Secretary of State will make regulations for the purpose that the noble Lord so obviously requires in this series of amendments.

§ Lord Graham of Edmonton
I am most grateful. Every crumb of comfort is welcome. Let me say at 940 once that even those outside with a great deal of experience in these matters are always willing to acknowledge that when it comes to drafting precisely to take account of anomalies that emerge, one often creates other problems. The Minister will take on board that it is almost the pride of local authorities that they do not need someone else to rubber stamp or endorse. The Minister was right in saying that if the issue of a special enforcement notice, although containing the caveat that it requires to be approved by another authority, was never used, why have it at all? I wanted from the Minister a clear assurance that it would only exceptionally be the case that any action would need to be taken. I think the Minister understands what I am trying to get at. I can understand that he is not prepared to say that it would be very rarely used. If we are talking of operational circumstances, we do not know how often those circumstances would arise.
I took note of the words which the noble Lord used. He said that there would need to be "good, valid reasons". It would be good if local authorities could assume either from this moment onwards or from when the Bill becomes an Act that, every time there were good, valid reasons, they would be told those reasons. Indeed, if they were good, valid reasons, then a reasonable authority would, in my view, be prepared to accept them as good, valid reasons as to why their decision to enforce the law had been overridden on what were called "operational grounds".
Although the use of the word "operational" begs the question, the Minister has persuaded me that, if something irked and irritated a local authority on environmental grounds and, for example, they wanted to remove a snack bar from a layby on environmental grounds, then that snack bar—if it were left in position—would serve a good purpose until a more permanent structure which was in the process of being built was actually finished. That would be a good, valid reason as to why the operational decision ought to be taken. I appreciate that, without giving anything precise tonight, the Minister has asked me to realise that what we are trying to achieve in this series of amendments is well understood and, when possible, to look at the consequences particularly as regards Amendment No. 4 which relates to the stop notice.
The Minister is telling us that there is sympathy as regards what we are trying to achieve by the amendment and that care will be taken about the matter. But because of the consequences on other legislation—Scottish legislation as well as our own—particularly in the aftermath of what was certainly an unhappy episode last year.on this particular point, we on this side certainly do not want to rush the Minister into taking precipitate action only to find that he will have to take yet more. So we are satisfied.
However, I should be grateful if the Minister would take this opportunity—and this could well be the last point that needs to be made in this series of debates—to give us an assurance that enforcement action (and here I would like to link him with my words) would not be unreasonably withheld. The Minister is saying that it would only be applied provided it was requested for good, valid reasons. If in fact it would not be unreasonably withheld, and only withheld for a good, valid reason, then honour would be served on all sides.

§ Lord Skelmersdale
After that necessarily lengthy exchange, I would say that there are two minds with but a single thought. The noble Lord asked me particularly whether good, valid reasons—my phrase—would always be given to the local planning authority. The answer is emphatically, yes. As far as his point relating to enforcement action is concerned, the answer would also always be, yes.

§ Lord Graham of Edmonton
I beg leave to withdraw the amendment.

§ Lord Graham of Edmonton
Again I am grateful to the Minister and of course to his ministerial colleagues who indicated at Second Reading and during the Committee stage that they were mindful of the need to take this action. I would simply say that when reading the Second Reading speeches I noticed that this point was made by Members from all parties with an interest in these matters. In fact, it was an attempt to be fair to people who, out of ignorance and certainly not out of maliciousness, are parting with the land, to make sure so far as possible that their interests are protected and that the procedures are available. We on this side of the Committee are very grateful to the Minister.