§ 6.30 p.m.
§ Lord Skelmersdale
My Lords, on behalf of my noble friend Lord Bellwin, I beg to move that this Bill be now read a second time. This is a short Bill which deals with the application of certain aspects of town and country planning legislation to Crown land. Like all planning legislation, it is necessarily complicated. At first sight it may seem to be a technical and somewhat obscure byway of the planning system. But in fact the Bill is of considerable practical importance, and is urgently needed, as the speed with which it has passed through another place demonstrates.
In relation to Crown land, the Town and Country Planning Act 1971, and the Town and Country Planning (Scotland) Act 1972 apply only to the extent of any interest therein for the time being held otherwise than by, or on behalf of, the Crown. The term "Crown land" includes land in which there is an interest belonging to a Government department.
One effect of the statutory provisions is that the development of land by the Crown itself does not require planning permission. This has been the position right from the time of the 1947 planning legislation, and it is not altered in any way by this Bill. But the effect is wider than this. As your Lordships will know, much of the planning system does not apply to Crown land in which there is no private interest.
When a private landowner is considering selling land for development, one of the first steps that either he or the prospective purchaser normally takes is to obtain outline planning permission for the development which is proposed. The permission provides the basis on which the land can be valued and a selling price agreed. But this procedure cannot at present be used when the land being sold is Crown land, except in those cases where a private person already holds some interest in the land. The provisions 1202 relating to the grant of planning permission simply do not apply to such land.
In the past the remedy has normally been the use of the procedure set out in Circular 49/63 of the former Ministry of Housing and Local Government on the disposal of surplus Government land, That circular advises that a department wishing to dispose of land should ask the local planning authority whether the development which the department has in mind would have been permitted if an application had been made for planning permission. If the local authority and the disposing department are unable to reach agreement, the circular allows either party to ask the Secretary of State for an opinion. This informal procedure had certain weaknesses, to which I shall refer in a moment. Nevertheless, it operated with reasonable success until quite recently.
Last November, however, in the High Court Mr. Justice Mann held that part of the provisions concerning the reference of disputes to the Secretary of State was improper. Without an adequate means of resolving such disputes, the value of the procedure is much reduced.
The Government had in any event previously reached the conclusion that the informal Circular 49/63 procedure was unsatisfactory from a valuation viewpoint. It did not provide the benefit of an actual grant of planning permission, and purchasers of surplus Government land were therefore inclined to discount the price to protect against the risk that the planning authority would change its mind and refuse permission when the formal planning application was made.
In some cases, an attempt has been made to get round the difficulty by inviting a third party, such as a local surveyor, to submit a planning application; but where there is no existing private interest in the land, such an application is invalid, and planning committees should not have considered it.
It is clearly in the public interest that when the Government are selling surplus land, there should be a firm basis on which the land can be valued, and a proper purchase price negotiated. It would be quite wrong to allow the purchaser to make a windfall profit because the price had been discounted to take account of the risk that planning permission for the development might be refused. What is needed, and what the Bill provides, is a means of allowing the land to be sold with the benefit of an actual outline planning permission.
The essence of the Bill is contained in Clause 1. This clause permits the owner of Crown land to make an application for planning permission and for certain other consents. Any other person may make a similar application with the written permission of the Government department or Crown authority concerned. Any permission or consent granted applies only to development carried out by someone other than the Crown.
The clause would also validate permissions or consents already granted in relation to Crown land in which there is no other subsisting interest. We know that a number of such applications have been made and granted in good faith, and we consider that any 1203 uncertainty about the validity of such permission should be resolved in this way.
We have taken the opportunity provided by the Bill to deal with three other problems relating to the application of planning legislation to Crown land. The first concerns action against unauthorised development. Under current law a planning authority can serve an enforcement notice where development has been carried out in breach of planning control by a person who has an interest in Crown land, such as a lessee, and the Government department or Crown authority owning the land agrees. However, there is no provision for such action to be taken if there is no private interest in the Crown land and the development has been carried out by a trespasser. That is a nonsense. It is highly undesirable that a trespasser should be in a better position than a lessee in this respect.
One example of the problem is where a mobile or semi-permanent snack-bar is operating in a lay by on a trunk road. In that situation my right honourable friends the Secretaries of State for Transport, Scotland, and Wales have powers to intervene if there is a hazard to road safety on the highways. But quite often the objections are made on environmental grounds, for which planning powers are a better remedy. Clause 2 would empower the planning authority to serve a special enforcement notice in that situation, again provided that the Government department or Crown authority concerned gives its consent.
Your Lordships may very well ask: what of people who are occupying Crown land lawfully, but who hold no interest in it because they occupy the land under licence, or, in Scotland, under a contractual arrangement? Unless there is a private interest in the land held by someone else, development carried out by such a person—even quite significant development, such as exploration for oil—is at present not subject to planning control.
Clause 3 rectifies the position. It provides that a person who occupies Crown land by virtue of a licence or contract in writing shall be regarded as having an interest in the land for certain purposes of Section 266 of the 1971 Act or the equivalent Scottish provision. That will bring into play the provisions of the 1971 and 1972 Acts relating to planning control and listed building control.
There is one existing anomaly relating to licensees which does not apply only to Crown land. In England and Wales a licensee who has no legal interest in the land he occupies has at present no right of appeal against an enforcement notice. We have taken the opportunity to give such a licensee an express right of appeal. In Scotland they pride themselves on ordering their affairs better than we do in England and Wales. In this case they are right: the existing provisions of the 1972 Act already cover the position.
Clause 4 of the Bill deals with problems which can arise over temporary changes of use carried out by the Crown. If an ordinary landowner wishes to make a material change in the use of his premises, planning permission is required, and the planning authority has the power to impose a time limit, or to make the permission personal to the applicant. Because the 1204 Crown does not require planning permission to carry out development, no such condition can be imposed when the Crown makes a material change in the use of premises, even though both the Crown and the planning authority intend the change to be a temporary one. Often that will not matter, because as a landower the Crown will be able to take steps to bring the use to an end.
But if a third party has an interest in the premises—for example, a freeholder where the Crown interest is leasehold—he may be able to say that the new use is the lawful use for planning purposes, and that he intends to continue it aginst the wishes of both the Crown and the local planning authority. To ensure that the planning authority is not left unprotected in this situation, Clause 4 would empower the Crown and a planning authority to enter into a binding agreement which would prevent the use of land for a purpose begun by the Crown from being continued by some other person without a grant of planning permission.
The remaining two clauses deal with incidental matters. Your Lordships will note that Clause 6 provides for the legislation to come into operation four months after the passing of the Act. This is a slightly longer period than normal, but certain detailed modifications will first need to be made to normal planning procedures to meet the special characteristics of the provisions of Clauses 1 and 2.
On the face of it, this looks like a technical Bill. It is, of course, but it is also a practical Bill to deal with a practical problem. There may be differences of view between us about how much of the surplus land which they own the Government should be selling, but I hope we can all agree that, when such a sale takes place, a proper mechanism is needed to provide a firm basis for the valuation of the land, so that the selling price reflects its full development potential.
The Bill provides a proper statutory procedure which gives a firm basis for the valuation of the land, and, at the same time, leaves third parties who may not like the form of development under consideration with the normal statutory rights of objection.
While there was no opportunity for the normal informal consultations before the Bill was introduced, its principles have been widely welcomed by bodies ranging from the local authority associations to the Royal Institution of Chartered Surveyors. Only this morning—I do not intend to read it out following the experience of my noble friend Lord Swinton just now—I had a letter of commendation from the ACC.
As I have already indicated, we are more than ready to discuss any detailed points of difficulty, and to consider seriously suggestions for ways in which the Bill might be further clarified or improved, and, indeed, officials have already had a number of discussions with interested bodies on these lines. I hope that we can maintain the contructive and non-partisan approach to the Bill adopted in another place, and that it will speedily pass through this House. It is a good Bill, a timely Bill and a needed Bill. I commend it to the House.
§ Moved, That the Bill be now read a second time.—(Lord Skelmersdale.)1205
§ 6.42 p.m.
§ Lord Graham of Edmonton
My Lords, we are debating tonight one of those intriguing and curious aspects of our planning legislation. Those of us who have some experience at what I would call the sharp end within local authorities—I served for a number of years as chairman of a planning committee—have always been impressed by the care and attention paid by Parliament in constantly revising, in the light of latent defects, the framework of planning legislation. Since I came into this House, and certainly after being in another place, that impression has been reinforced. There are few spheres of national life in which Parliament pays more attention to trying to get it right first time.
We on this side fully accept that, with the passage of time, certain flaws are revealed which are being put right. Before us tonight is a Bill that attempts, I hope successfully, speedily, properly and rightly, to remedy flaws that have been revealed during 1983. My noble friend Lady Nicol, who will speak later, will deal with some of the detailed points contained in the Bill. I believe both in this House and in another place Ministers have dealt far too lightly with the background to our debate here tonight.
What, in fact, have we got? In another place the Under-Secretary of State said on 7th December:This short Bill makes some technical but necessary changes to the way in which the planning system applies to Crown land, but leaves untouched the position that has existed since 1948".Tonight the noble Lord the Minister used precisely the same words as those of the Under-Secretary of State, who added:It is urgently needed to ensure that, when surplus Crown land is sold, a proper price is obtained which fully reflects the development potential of the land".—[official Report, Commons, 7/12/83; col. 351.]To that, I say, on behalf of this side, amen.
The Minister tonight has set out a version of planning legislation history but his skill in evading or avoiding "carrying the can" for the hiatus still leaves the blame for the happenings during 1983 fairly and squarely on ministerial shoulders. Surely there can be no argument that the whole issue arises from the current haste of the Government to sell Crown land, to force the sale of Crown land, particularly that belonging to hospitals and regional hospital boards.
Secondly, the hiatus that emerged in the latter part of 1983 owes much to the conflicting advice from Government Ministers to their colleagues in the Government, to the House and to those outside. That advice created confusion and uncertainty. Of course, we on this side and, I believe, from all sides of the House, fully support the Government's intention of getting the best price for disposal of Crown land. It is far better, we believe, that the best price should benefit the taxpayer and the ratepayer rather than the speculator. In my local authority area there are three hospitals likely to be affected in part or in whole by these procedures—the Highland Hospital, the War Memorial Hospital, to which I shall refer later, and also the Chase Hospital. I am delighted to see the Minister the noble Baroness, Lady Trumpington, sitting in her place. She has been kind in her response to me over previous inquiries regarding the future of those hospitals. I am grateful to her.
1206 The Minister points out properly that the two crucial pieces of legislation that we are discussing are Section 226(1)(b) of the 1971 Act and Section 253(1)(b) of the 1972 Act. We are well aware, although the Minister did not draw this to the attention of the House, that the current hiatus, if one reads the history, arose out of initiatives by the East Dorset Area Health Authority in its attempt to sell off a disused children's home. This was a direct challenge to long held views that when Crown land was sold it could be done on the basis of likely planning permission. I wish the House to listen carefully to what the Minister said in another place on 7th December:it has sometimes been the practice to invite either the prospective purchaser or a third party to make a mutually agreed application for planning permission".—[Official Report, Commons, 7/12/83; col. 346.]I want the Minister to tell the House, if possible, tonight, but, if not, later, what precisely caused the disturbance in the hitherto unquestioned position. The Minister sought, I think, to tell the House in a general way that this was born out of a desire by the Government to maximise the value of the land that was sold under these particular procedures. In another place, on Second Reading, the Minister said that the Law Officers had been considering this practice and had now concluded that it was invalid. Can the Minister say whether there was an incident or an event which triggered off that consideration?
The Minister, in another place, in answer to a Parliamentary Question on 12th May (col. 463), said that the Law Officers had ruled that where there is no interest in land for the time being held otherwise than by or on behalf of the Crown, neither the Crown nor a third party could apply for planning permission on Crown land. I want the Minister to tell the House what was the incident or event that caused the Law Officers to decide literally out of the blue to produce this ruling.
The Minister is well aware that the Government fell back on the advice in circular 49/63 under which one gets informal views on planning prospects. It is clear that that advice was bad advice. The bad advice was subsequently tested in the court, according to the Minister, in respect of part of the circular. The whole of the circular was condemned. It was certainly had advice. We are talking about May 1983. But the Government blundered on during the rest of 1983 to such an extent that the restrictions outlined by the Minister in the House on 12th May caused another Minister, the Parliamentary Under-Secretary at the Department of Health and Social Security, to write to the Member of Parliament for Christchurch:There is no doubt that the Law Officers' opinion represents a serious setback to the land disposal programmes of health authorities and is one which could cost the NHS dearly".Of course the last thing one wants to do is to raise a stricture on Law Officers giving advice, because it is their function to give advice on the basis of the facts as they see them. But there we have one Minister indicating the consequences of the advice of the Law Officers.
We now move on to the courts—a venue much favoured by this Government to resolve disputes. I rely on the Law Report in The Times dated 22nd November 1983, giving the judgment of Mr. Justice Mann on 14th November. The headline was. "Ministry circular unlawful". The circular referred to 1207 was Circular 49/63 which was used as the fallback justification after—remember—the Government's own Law Officers had advised the Government that the practice was without legality. Remember, too, that the Minister said on 12th May 1983 at column 460:In the light of this advice the Government will continue, when disposing of land, to use the present informal procedures for obtaining opinions from local planning authorities on what development if any they would regard as acceptable".It is all the more remarkable for words like "informal" and "opinions" to be given ministerial authority, when one recalls that in his statement in another place the Minister began at column 459 with the words:The understanding of successive Governments".So we have planning legislation built on a premise of understandings, opinions and informal procedures. Mr. Justice Mann gave such phrases and other disturbing procedures short shrift in his judgment. He said:The procedure set out in Ministry of Housing and Local Government Circular 49/63 whereby the Secretary of State could express an opinion that he would, on appeal, have granted planning permission for certain developments on Crown land which a Government Department wished to sell, was unlawful".So the first point that the Minister dodged was the recognition, publicly, not merely that there were technical difficulties that needed to be tidied up, but that the department had been presiding over what was held to be unlawful procedures. Mr. Justice Mann went on:because it had the effect of constraining the planning authority to grant any subsequent application for planning permission for such development and thus of depriving local people of their right, on appeal, to make representations against the grant of planning permission".The judge, in granting the applicants that declaration as regards the opinion expressed by the Secretary of State on 26th July 1972, ruled that the Secretary of State had acted ultra vires.
Are these not serious derelictions? Is it not strange that no reference to these censures figured in the opening statement by the Minister either here or in another place? I repeat: we on these Benches have no wish to inhibit the regularisation—the legalisation—of procedures designed to maximise the public benefit of public assets. The Minister, however, will not expect me to approve his method of financing the National Health Service by selling off land as fast as he can. But I am fully on his side when it comes to getting the best value for the taxpayer and not the highest profits for the speculator.
The Minister of course in preparing himself for this debate will be no stranger to the article in the Sunday Times dated 4th December—not very many weeks ago. The headline to that article was:Red faces on Crown land building slip-up".The article began:Hundreds of developments carried out on Crown land over the past 12 years are technically illegal because, through a spectacular oversight, they have no valid planning permission.".In column 366 on 7th December the Parliamentary Under-Secretary of State in another place denied this assertion, but he said:I acknowledge that there have been a few".To be able to both deny the statement and to assert that there have only been a few requires knowledge 1208 that can only be based on a scrutiny of the records. I ask the Minister directly whether he can now tell the House precisely how many developments have been carried out contrary to Section 266 of the 1971 Act, Section 253 of the 1972 Act and Circular 49/63, ruled by the judge as ultra vires? For the Minister to be able to assert that there were only a few must indicate that the statistics are in his possession. It is important that the figures are known. It is no good for the Parliamentary Under-Secretary in another place or the Minister here tonight to denounce the tenor of the Sunday Times article in dismissive generalisations.
Let me illustrate what I mean. The article in the Sunday Times said:One of the most blush-making examples came to light last month. The planning Minister, Neil Macfarlane, was forced to issue a remarkably humbling letter to Shell, two years after a hotly disputed public inquiry into the planning application to drill for oil on Crown land in the New Forest. Hampshire. The inquiry lasted three months. involving heavy legal expenses for Shell, two local authorities"—so much for local authorities keeping down their expenditure—and a host of objectors, estimated at £100,000 plus.".But the whole thing should never have taken place because Mr. Macfarlane had no jurisdiction in the matter. The member of Parliament for the New Forest. Patrick McNair-Wilson, is furious at what he calls the DoE's incompetence: to waste public money on a pointless public inquiry and then two years later to admit that they had no right to hold one is a classic case of' bureaucratic muddle and incompetence.
I can understand the Minister in another place not accepting "blush-making", "forced" or "humbling". I can understand him wincing when his Conservative friend in another place described the procedures as a classic case of bureaucratic muddle and incompetence. The episode is certainly one which forces me to say that the Minister in another place—certainly not the Minister here tonight—was lacking in frankness and candour when dealing with a situation which was seen to be very serious by those concerned. In fact the Minister said in another place on 7th December at column 366:Some unnecessary inquiries may have been held because of this legal technicality, but I do not for a moment believe that the time spent on such inquiries has been totally wasted.".That was certainly not the view of the Member for the New Forest. It is certainly not the view of his constituents. No one who is affected by an inquiry even into an extension or a garage, would subscribe to the view that it is a therapeutic exercise or that the money is money well spent when it is revealed that the whole traumatic exercise has been both illegal and pointless.
I should be grateful if the Minister would take on board a curious situation that was revealed in my local paper last week. In the Enfield Gazette, under the headline, "Bids invited for hospital", it said:Enfield War Memorial Hospital. in Chase Side, is finally up for sale.This week the North East Thames Regional Health Authority, who own the building, have asked for offers for the hospital.The closing date for tenders is February 24 so interested groups are being asked to put forward their bids for the building.The hospital which served the public for over 60 years has been closed since July, last year … As yet no planning permission has been granted for the War Memorial, but last year the health authority approached Enfield Council for their views on the future of the hospital.1209At the last meeting of the plans sub-committee, members agreed that they would have no objections to the hospital being redeveloped for housing.Once the closing date for offers has been passed it will be up to the authority to decide if any are suitable.No value has been put on the hospital but the authority could turn down all the offers if they are not considered high enough".I ask the Minister whether, if not tonight then in a letter, he can confirm that, in what I consider to be the present no man's land or limbo between that which was understood to be the procedure before and what is going to be regularised in, I hope, a matter of weeks, the procedure which has been followed in the case of the proposed sale of the Enfield War Memorial Hospital is valid and correct. The sale in the first instance certainly has caused a great deal of distress, but I am asking genuine questions so far as the procedure is concerned.
In conclusion, another point I want to make is that I very much hope that the Minister will repeat again that all of those who have been caught over the past 12 years in the uncertainty will be able to breathe a sigh of relief by virtue of the clauses in the Bill that what they have been doing will be legalised once the Bill has been passed.
Finally, I believe that the Minister in this House should think hard and long and subscribe to what I believe is an apposite text for Ministers who have been handling this matter:Whosoever shall exalt himself shall be abased, And he that shall humble himself shall be exalted".I should like to think that when the Sunday Times described the Parliamentary Under-Secretary's letter to Shell as "humbling", they had it about right.
§ 7.1 p.m.
§ Lord Kilmarnock
My Lords, those of us who were not previously very familiar with these matters are grateful to the noble Lord, Lord Skelmersdale, for his explanation of the purposes of the Bill. We understand from him that planning permission has not been required for development carried out by the Crown itself and that it is not the intention of the Bill to alter this principle.
However, legislation has always sought to control activities carried out by other people on land owned by the Crown. Section 266 of the Town and Country Planning Act 1971 contains the relevant provisions, and it is to these provisions that this Bill is primarily related. When an ordinary landowner sells land for development he will normally first obtain outline planning permission for the proposed development; but when the Crown itself appears in the role of seller, planning legislation does not apply, and it follows from this that no planning application can be made.
It appears that there was a way round this which involved asking the planning authority whether a proposed development would have been permitted if a hypothetical application had been made for planning permission. But this was not very satisfactory and many valuers believed that this acted as an impediment to the disposal of land and the realisation of maximum values. In the opinion of the Government, this led to the real danger of land being sold by Government departments at less than its full 1210 potential value because purchasers were inclined to discount the price to protect themselves against the uncertainties of planning permission. That, as far as I can understand it, is the background to this Bill.
However, if the matterrested there, I should not be addressing your Lordships today because I do not consider myself well qualified to participate in a debate on the intricacies of planning legislation. But it appears that the legislation has been prompted, if not specifically, certainly very largely, by concern over (and I am now quoting the Under-Secretary of State in another place on 7th December 1983 at col. 347 of Hansard):the report of an inquiry into under-used and surplus property in the National Health Service which was made to my right hon. Friend the Secretary of State for Social Services in November last year.It therefore turns out, as the noble Lord, Lord Graham of Edmonton, has already said, that this Bill is very largely designed to enable health authorities to obtain planning permission in their own right, thus putting them in the same position as private sector property owners. The noble Lord, Lord Skelmersdale, was not quite as frank about this as his colleague, Mr. Macfarlane, in another place. I am not suggesting that he was concealing anything, but it is obviously a very vital aim of the Bill, and perhaps he should have told us a little more about it.
It is perfectly understandable (as the noble Lord, Lord Graham, has already said), and laudable that the National Health Service should want to realise the best price for its assets. But—and this is where the "buts"begin—I want to probe the Government on a number of points. First, can the noble Lord tell us how many regional authorities are likely to be forced to sell—possibly quite rapidly—in order to balance their books as a result of the Government's cuts? Have the Government compiled an inventory of the assets of health authorities which are, or which are likely to be, affected by this Bill under the present proposals for closure and reorganisation?
Secondly, if health authorities are put into this position in order to compensate for cuts, is it not clear that they will be forced to sell to the highest bidder for whatever development purposes he has in mind, regardless of any existing use of the land for community purposes? There is, for example, the case of Crofton Hospital, which was mentioned in the debate in another place, which is now a day-care centre for the elderly, which has been used for recreational purposes since 1922, and which incorporates a play area for children and tennis courts for the local community. Can the Government assure us that there will be a proper planning consultation procedure before the projected sale there takes place?
Thirdly, quite apart from the impact of cuts, there is the whole question of care in the community, on which the Government pins such faith without really facing up to the resource implications. It is a perfectly valid point that Victorian institutions of penitential aspect are no longer thought to provide the ideal solution for the elderly, the mentally ill or the handicapped. But—here is another "hut"—care in the community is not necessarily a cheaper solution: it is a better one and it should lead to an improvement in the quality of life for those released from these institutions where they do not need to be confined. But a 1211 whole new network of support and day-care has to be devised, and that will cost money too.
My question is this. What will happen to the money received from these sales? If it is simply to be applied to balance the books, there will be no gain to the health service but rather a loss—a loss of assets, however outmoded, at a time when what the majority of authorities require is additional funding to enable them to look after their elderly and their mentally infirm outside the institutions which are now being sold off. Can the noble Lord tell us more about the destination of the monies realised, or which will be realised, from the sale of health authority assets? Will authorities be allowed to treat them as additional capital for new developments—for day centres and other facilities required if care in the community is to work? Or will the money simply disappear into the Treasury's maw?
In the Explanatory Memorandum. under the heading "Financial Effects of the Bill", we read that the Bill is not expected to lead to any material increase in public expenditure. But can the noble Lord assure us that it is not designed to achieve a decrease in health service funding by the back door? I realise that not all these questions fall within the scope of the noble Lord's department. But if he cannot answer them, I should be grateful if he would refer them to his colleagues who have competence in this field and ask them to write to me, because our attitude to this Bill in its later stages will depend very largely on the answers to my questions.
§ 7.7 p.m.
§ Baroness Nicol
My Lords, on the face of it this seemed to be a small, uncontroversial and easy Bill that would slide through the House this evening without too much being said about it. However, my noble friend Lord Graham and the noble Lord, Lord Kilmarnock, have shown us very clearly the implications of the Bill. There are a few questions that I should still like to ask, on which they have not touched.
But first I should like to endorse what both noble Lords have said about our acceptance of the need to maximise the value of assets. This is good business practice, and we are constantly being told that good business practice is what this Government is all about. However, the sale of capital assets in order to fund revenue expenditure is not good business and I should like to be reassured, together with the noble Lord, Lord Kilmarnock, that this is not what is intended in this case, not simply from the health service but from any other department that may be contemplating selling its assets.
The only other application of capital receipts which would be acceptable in this case, if it is not to enhance the activity of the department which has acquired it, is to use the proceeds for community benefit in some other way. There is a possible third which would be if the sale of the land asset would allow a development of the site which would fulfil a local need which would not otherwise be attainable. However, leaving those three aside, there is no other acceptable reason for disposing of Government land.
1212 My noble friend Lord Graham has gone in great detail into the history of why this Bill is before us, and I look forward to the answers from the noble Lord opposite if he has them tonight. But there are a number of small points on the Bill itself to which I should like to draw attention. First, there is the general point that the drafting of the Bill is, in many cases, obscure. To my way of thinking not only is the language used unnecessarily difficult, but it has been said to me this afternoon that one cannot possibly have the country's legislation in language which the ordinary man can understand. Why not, my Lords? If we are educating the ordinary man to read and write, surely it is with a view to understanding, among other things, what the country is trying to do for him and to him. I should like the noble Lord to look, if he will, in particular at the wording of Clause 1(4) which, to my way of thinking, is the most difficult clause I have come across for some time.
I too have had the letter from the Association of County Councils and I am pleased that they support the passage of the Bill. However, I was a little uncertain about what they meant by their hope that clarification would be obtained at a later stage, and I rang them this afternoon to find out. They too have doubts about Clause 1(8). I believe that these doubts were raised in another place, and it seems that there is a question about the validity of the clause in its present form. I hope that the Minister will indicate to us whether it is his intention to amend this clause. If not. I am sure amendments will come from elsewhere.
We then go to Clause 2(3):No special enforcement notice shall be issued except with the consent of the appropriate authority".What is the justification for this? Local planning authorities should be able to act in these cases without needing consent. These are the cases where trespassers have proceeded without planning consent. If consent is withheld by the appropriate authority, the Government department or whatever which owns the land, that would amount to a planning consent by default, would it not? The local authority's credibility would be undermined and local strategy could be affected.
Can the Minister undertake at this stage to say that consent would not be withheld without good and stated reasons, or can he indeed explain why that clause is necessary in the first place? The long-standing exemption of Government land from planning and building control will not necessarily continue to be supported. It is already being questioned on both sides, particularly in relation to green belt policies. But with these-reservations, we support the Bill and hope that it will have a speedy passage, because we endorse the need for it in both legal and business terms.
§ 7.13 p.m.
§ Lord Skelmersdale
My Lords, this has been a helpful and constructive debate, which has confirmed that there is a great deal of common ground on this subject. Obviously there is a measure of detail and I still have quite a lot of explaining to do. I hope to have the opportunity to do this this evening and again at any subsequent stages of the Bill for which noble Lords may call. In this connection perhaps I should say at the moment that I shall look particularly carefully at the 1213 drafting points that the noble Baroness and others mentioned, and shall have no hesitation in bringing forward on behalf of the Government such amendments as we think fit at the appropriate time. It is not a Bill on which I intend to be in the least dogmatic—unless of course noble Lords opposite, for political reasons, force me to be so.
The noble Baroness, if I may refer to a point she made at the end, said that there were beginning to be doubts from both parties that the opportunity should in the near future be taken to bring all development on Crown land, including development carried out by the Crown itself, under planning control. If the noble Lord, Lord Graham, can quote at me, perhaps I may quote at him. Plus ça change, plus c'est la même chose. I have been looking at the proceedings of the original Town and Country Planning Bill 1947. I find that just the same point was raised during the Committee stage in this House. In rejecting the argument, the then Government spokesman, Lord Chorley's father, said:These amendments raise the whole question of the constitutional position of the Crown. It is the intention that as close a co-ordination as possible should be achieved with the local planning authorities, but this could be achieved perfectly satisfactorily by administrative methods. Their arguments still seem to me to remain valid".The noble Lord, Lord Graham, opened his speech—and indeed devoted much of his speech—by accusing me in the politest possible way of skating skilfully round the problem. He raised the question of how the present situation over planning permission in respect of Crown land came to light after having remained undetected for so long. The fact is that in 1982 the circumstances of one or two planning appeals concerning Crown land which were then before the Secretary of State for the Environment were such as to cause the department to question the invalidity in relation to Section 266(1)(b) of the Town and Country Planning Act 1971.
When you are working with cases regularly you come to form an opinion, a personal judgment, on what is going on. If you think that something is not quite right, the correct thing to do is to take advice, and this is exactly what was done. The matter was considered in the normal way. This led to Mr. Giles Shaw, who was then Parliamentary Under-Secretary of State in my department, replying to a Question in another place on 12th May last year (col. 459) to the effect that:Where there is no interest in land held otherwise than by or on behalf of the Crown relevant statutory provisions … preclude any grant of planning permission, and that it is open neither to the Crown nor to any third party to apply for permission in such circumstances".Contrary to what the noble Lord, Lord Graham said, I am unaware of any conflicting advice on this point. The subsequent High Court judgment—and the important thing to note is that it was subsequent—in relation to the Circular 49/63 procedure, to which I referred in my opening speech, has made the need for amending legislation even more pressing.
The noble Lord, Lord Graham, also asked how many invalid permissions exist. I simply do not know the answer to that question, but we believe that it is nearer to two figures than the many thousands which 1214 have been alleged in some quarters—not this evening, I hasten to add. Most disposals have been dealt with under Circular 49/63 procedure, and there is no reason why permissions granted after this procedure has been used, and the Crown land has subsequently been sold, should be invalid.
The noble Lord also referred to the New Forest oil drilling case, which has become quite a cause célèbre not only because of this but because of the general role of the planning system within oil developments in areas of outstanding natural beauty, on which the House has questioned me fairly recently. While the Bill will not be directly relevant to this case, Clause 3 of the Bill will prevent the recurrence of difficulties similar to those which have arisen in the case of the application for planning permission made by Shell UK Limited to drill an exploratory bore hole to look for oil in the New Forest. Until the inquiry was over we did not know that the company had no subsisting interest in the land, and it was on that basis that the inquiry was conducted.
Before this came to light, the application was treated as valid and called in for determination by my right honourable friend the Secretary of State. A lengthy public inquiry was held in the first half of 1982. However, as we now know, subsequent to the receipt of the inspector's report of the inquiry, it has been established that the application was made in respect of Crown land, in which there is no apparent non-Crown interest, so that the application was invalid, and my right honourable friend has no power to determine it.
The noble Lord is worried that this was a totally unnecessary procedure and should never have happened. It has cost the ratepayers a great deal of money. But I would take issue with him on that. The majority of the parties have, however, agreed to a proposal that the Secretary of State should give an informal indication of the decision he would have issued on the application had he the jurisdiction to do so. Accordingly, the parties were notified yesterday that the Secretary of State would have accepted the inspector's recommendation that planning permission should be refused. So the inquiry has certainly not been a waste of time. Indeed, can it ever be a waste of time to have a thorough public examination of a controversial project in a sensitive area like the New Forest?
§ Lord Graham of Edmonton
My Lords, I am grateful to the noble Lord for giving way. I am intrigued when he refers to the status of the Shell company coming to light subsequently. If I get him right, the actual interest of Shell in what was going on was not fully revealed until after the public inquiry. Surely procedures at the Ministry must have revealed by direct question, or by other intelligence, precisely the status of the Shell company before the public inquiry and during the public inquiry? If that status had been revealed prior to rather than subsequent to the inquiry, what I believe we are saying is that there might not have been any need for the inquiry, because it would have been invalid.
§ Lord Skelmersdale
My Lords, I take the point but I do not think that it is right for me to go into any further detail. I will write to the noble Lord. The noble 1215 Lord, Lord Graham, also raised the subject of the retrospective element which I touched upon just now. I am fully aware that such legislation always needs to be looked at with the very greatest of care but we know that some applications have been made and determined in good faith bacause of a misunderstanding of the effect of the technical and difficult provisions of Section 266 and its Scottish equivalent. While we do not believe that there is a vast problem, as has been suggested in the press, we know of cases ranging from builders who purchased land from the Forestry Commission in the Forest of Dean to the Royal College of Physicians' redevelopment scheme in London.
I do not know of the case referred to by the noble Lord, Lord Graham, as having been reported in his local newspaper. I will make it my business to find out and write to him. As the status of these provisions is now uncertain, we believe it is only fair to these private individuals and bodies who purchase land from the Crown for development in reliance on a planning permission or other consent which may, indeed, already have been implemented that the uncertainty should be resolved, and the Bill does it. There can be absolutely no doubt about this.
Time is getting on. I do not want to get into a political argument on the subject of disposal of NHS land, but during the year ending 31st March 1983 some 550 acres were disposed of, realising £19.3 million. You cannot, with the best will in the world—and I am not sure that the best will in the world currently exists—call this financing the National Health Service by the sale of land. Nor are the regional health authorities being forced by anyone. Disposals are made by regional health authorities in accordance with a comprehensive handbook on procedures issued by the DHSS. But at the end of the day it is a matter for the regional health authorities themselves. There is a financial incentive to dispose of surplus land since the health authorities retain the proceeds of the sale. I understand that this is one of the questions which the noble Lord, Lord Kilmarnock, put to me.
Clause 1 of the Bill, enabling health authorities or persons authorised by them to apply for planning permission in advance of disposal, will greatly facilitate the disposal of surplus land and enable it to fetch its true market value. If it does not, you are penalising the regional health authorities, and the Government do not want to do that.
The noble Lord, Lord Kilmarnock, also asked for further information about the Crofton Hospital, Liverpool, case. I will refer to this briefly and if the noble Lord wants to go into details I think it would be wise to do it by correspondence. Planning permission has been granted for the redevelopment of this site following a public inquiry. It seems likely that at the time of the application there was an already existing interest in the site other than that of the Crown. This point was not investigated at the inquiry. The Liverpool City Council have queried the validity of the application and have been told that, in our view, it was probably valid. In any event, it will be covered by the retrospection clause that I have already mentioned.
The noble Baroness, Lady Nicol, if I may say so with great respect, was really asking me to go into rather 1216 more detail, the sort of detail that is normally gone into on Committee, for example, to explain Clause 1(4) and Clause 1(8) and whether we are to put down amendments and so on. I have already answered points on whether we are prepared to put down amendments. We most certainly are. Having said that, I am not in a vicious frame of mind and I will refer(especially as she was good enough to give me previous private notice of it) to Clause 1(4) which I, too, found a bit of a mouthful. The subsection refers to determinations under Section 53 of the Town and Country Planning Act 1971 and its Scottish equivalent. These sections enable a person who proposes to carry out work on land or change its use to ask the planning authority whether planning permission is required before doing so. The subsection enables this procedure to be used in relation to the disposal of Crown land so that the appropriate Crown authority can ask the planning authority whether a particular use of the land or particular activities on it after a private interest in it has been created would require planning permission. Perhaps the drafting of that is not much better than the drafting of the clause in the Bill, but I hope that when the noble Baroness reads it she will see that it does actually become quite clear.
§ Baroness Nicol
My Lords, I understood it eventually. What I am saying is that to the ordinary man in the street it is quite incomprehensible.
§ Lord Skelmersdale
My Lords, planning legislation of this particular complexity and technicality is not written for the ordinary man in the street. It is written for the legal advisers of local authorities, the legal advisers (in this case) of health authorities and other departments who wish to dispose of land and, of course, it is written ultimately for the courts. I am sure that they would understand it.
However, to continue the point, if the answer is yes, an application for the necessary permission can be made under the terms of Clause 1 before the private interest is created. If the answer is no, this may well also increase the value of the land, which is in fact the root point that we have agreed on through the discussion of the Bill this afternoon. While it is simply not true to suggest that we are faced with a crisis involving hundreds of invalid applications we certainly have a problem arising in particular from the legal judgment of Circular 49/63 procedure which needs to be resolved without delay.
The Government are grateful for the co-operation they received in another place and I hope that the Bill will now proceed speedily through your Lordships' House. At the same time, we need to ensure that its terms are right and, as I have already indicated, we are more than ready to consider constructive suggestions from whichever quarter for its improvement, and, where necessary, put down amendments at the appropriate time. As the noble Lord, Lord Graham, said in his opening speech, Parliament takes particular care over planning legislation and I am absolutely convinced that we shall do so on this occasion.
§ Lord Kilmarnock
My Lords, before the noble Lord sits down, he told me that the regional health authorities would obtain the proceeds of the sale of 1217 property and other buildings. Can he tell me whether that will be in addition to the cash limit set by the Secretary of State from year to year? Will that be offset against the annual funding for the hospital and community health service or will it be in addition?
§ Lord Skelmersdale
My Lords, if this were Question Time I would answer, "Not without notice". The point is that I have not had sufficient notice and I shall certainly write to the noble Lord.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at twenty-eight minutes past seven o'clock.