HL Deb 27 April 1988 vol 496 cc278-88

7.44 p.m.

The Earl of Onslow rose to ask Her Majesty's Government whether they still consider it appropriate to plan for foreshore development by means of private legislation rather than bring such developments within the planning system.

The noble Earl said: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. It arises, as some of your Lordships may have guessed, for want of a better word, out of the Swanage Yacht Haven Bill.

I am not under any circumstances going to go into the merits or the demerits of that particular development but I think that it is worth while just recalling to your Lordships what happened. A promoter got together with a local authority; the local authority thought the scheme an acceptable one, granted planning permission on the landward side and, under the rules as they presently stand, approached your Lordships' House for parliamentary permission to increase the enclosed harbour which then existed.

This matter was perfectly properly debated on Second Reading and an instruction was given to the Committee. It went through a Committee on which I have the honour, and I would add the very great pleasure, of sitting. That is a duty in your Lordships' House which I find not only instructive but also enjoyable and intellectually stimulating as one sits and listens to very clever and almost certainly highly paid lawyers arguing the pros and cons of a case. We were quite excellently chaired by my noble friend Lord Alport.

We came to a split decision and the matter came to the House and was slung out on Third Reading. That is a perfectly acceptable procedure as the rules of your Lordships' House stand. It was, however, completely unprecedented except for the legislation on Felixstowe Docks, which I shall come to at a later date.

My point in raising this matter is not to argue the merits of the Swanage Yacht Haven Bill or even to discuss it in detail. But I think that I have to hang my argument upon it. My argument is that there are better ways of coming to what are essentially planning decisions than by having two separate lines of communication and decision making. Those two separate decision-making processes are disconnected and not in any way answerable to each other.

If there is a fundamental disagreement it would even be more acceptable to throw out a Bill such as the one in question on Second Reading rather than on Third Reading. It has been put to me that the argument which the Chairman always produces on Private Bill legislation is that a Bill should not be thrown out on Second Reading but should go to Committee, and that then on Third Reading noble Lords say that the Committee has already discussed the matter so it should be thrown out. It is rumoured—this is gossip more than anything else—that this doctrine was invented by our late and much loved clerk, Euan Graham, to get business through the House. I do not know whether or not that is true but I accept that there is a certain limitation on the powers of the House by saying—[Interruption.]

My Lords, laughter is always a much better form of interruption than hostile ribaldry.

Lord McIntosh of Haringey

My Lords, if the noble Earl will permit me I only wanted to draw the attention of the House to a phenomenon in a way that can be recorded in Hansard. I wanted particularly to draw attention to the expression on the face of the Clerk of the Parliaments.

The Earl of Onslow

My Lords, I am sure that is out of order. Let us return to serious matters. It would seem to me that there is a limitation on the power of the House. There is a slight fallacy in the argument that the House cannot make a decision on Third Reading but that it must leave that to five people—good men like my noble friend Lord Foot or my noble friend Lord Alport—all of whom make up their minds quite independently of party pressure.

It might be worth while for me to comment on some of the other Private Bills with which I have been relatively closely connected. The first such Bill was the Okehampton Bypass Bill. I was involved because I was chairman of the Commons, Open Spaces and Footpaths Preservation Society. The society then read what I had said and sacked me but did not tell me that it had sacked me. It was embarrassing for them and quite funny for me. On that Bill the inspector came to a decision and, because of some promise which had been given, the matter had to go to a joint committee. The Government were convinced that the committee would come down on their side. That did not happen. They then had to overrule the joint committee. That is not a satisfactory way of proceeding in fairness to anybody.

What I hope that we shall do in this small debate—I would not expect my noble friend on the Front Bench to do anything other than make a very prepared speech because we know that there is a joint Select Committee sitting on the subject—is to throw just a little more light on the whole subject.

The Fleetwood Harbour Bill came forward and I was on the Committee. We slung that out on what I think were relatively spurious grounds but quite correctly. The Preston Docks Board objected to Fleetwood Harbour building a roll-on roll-off ferry because it said that that would threaten the interests of Preston docks. I suspect that they have probably closed down now, although I do not know. However, we slung that Bill out because we established from the promoters that they were intending to build enough ro-ro capacity at Fleetwood for more than three times the amount of forecast trade with Ireland until the turn of the century. We thought: "That is a pretty silly way of proceeding". Whether or not we were actually allowed to take that decision within the rules of procedure, I think that it was probably the right decision. However, it was possibly not what we should have done even though we may have been right.

I was also deeply involved—in this case, wearing a sort of Fitzroy Raglan hat—in objecting when Guildford Borough Council wanted to build itself a sort of palace on some public open space which had been protected by the Guildford legislation of 1926. It wanted to build a palace and a lot of local people thought that it should not be allowed to. We had a Second Reading debate in this House and the Committee threw the Bill out on what I am fairly certain were financial grounds. The late Lord Gordon-Walker was one of the Members of the Committee. It was thrown out on financial rather than planning grounds.

Many people take the Felixstowe Docks Bill as the precedent for slinging a Bill out on Third Reading. I suggest that that Bill was slung out not on any planning grounds whatsoever but because it was going to extend the dock labour scheme to Felixstowe. That was in the dying days of the Administration of the noble Lord, Lord Callaghan. The House threw it out as a political rather than a planning Act. I believe that that was reasonable because it was political. In my view, planning should go along one line of decision.

I have reason to believe that the objectors to a proposal submitted to Parliament very often prefer their objection to be heard before a public inquiry. They reckon that sometimes they have a fairer hearing there, perhaps because we on these committees sometimes put on impassive faces and they do not know what we are thinking. I do not know. However, I believe that that is the case.

I accept that in any enclosure of the foreshore there are bound to be navigation, pollution and drainage or water board difficulties. Such things can and should influence the planning process. Those considerations can perfectly easily be called in by the Minister in the event and if the local authority gives consent a public inquiry can be asked for. I do not think that it is beyond the wit of man to devise a system whereby a scheme such as that proposed for Swanage—I am not taking a view as to whether the actual decision was right or wrong—could have been more fairly dealt with by putting the whole thing together in one concept before one decision-making body and giving everybody the same amount of access and the same amount of time for legal argument and ensuring that the decision would not be subject to parliamentary ambush.

I accept that that proposal would mean legislation, and I accept that there is no likelihood of that legislation being introduced. I accept that all I am doing is asking a Question and putting forward a view. However, considering the Channel Tunnel Bill, it is possible to consider that the hybrid part of that Bill—I believe that the Government said when they promoted the Bill that to argue whether Waterloo Station or some other station was the right station from which the line should depart was part of the concept of the Bill and not a detail of the Bill—could have been wrecked by somebody saying: "No, you cannot start from Waterloo Station. You have to start from Medward Green". That station has not been used since it was put down by the Beeching Act of 1963.

I accept that that may be an extreme argument. However, here again is the possibility that an outside decision-making process can come in to which there is no appeal back to the main process. All I suggest and hope that my noble friend on the Front Bench will consider is that there is a case for looking at the matter with care and in detail.

7.57 p.m.

Lord Renton

My Lords, my name does not appear on the list of those intending to speak. I hope, however, that your Lordships will bear with me for a few moments while I express my view on the Question put by my noble friend with his usual penetrating approach to problems.

It is for my noble friend on the Front Bench to answer the Question. However, I hope that what I have to say may have a bearing on his reply. My noble friend Lord Onslow suggests that we should abolish the Private Bill procedure not in general but in particular circumstances; namely, for yacht and harbour developments which have been subject to statutory planning procedures, as they normally must be. Therefore, in those limited circumstances, my noble friend wishes Parliament to deprive itself of a part of its sovereignty. It is as simple as that. It is a part of Parliament's sovereignty which is asserted by its practice of passing Private Bills. That is a very ancient practice, going back to the 16th century, if not earlier. However, its antiquity is not the justification necessary for its retention.

I find myself unable to accept the argument put forward by my noble friend. It is not only because Parliament would be depriving itself of part of its sovereignty that I disagree. I disagree also because there are inevitably occasions when Parliament finds that the planning procedures which it has put forward arc inadequate or are not working in the public interest. When that happens the situation can be retrieved by passing a Private Bill. I suggest that it would be wrong to restrict Parliament in the way that my noble friend has suggested.

8 p.m.

Lord Hooson

My Lords, I have not put my name down to speak, but what was said by the noble Lord, Lord Renton, a moment ago has provoked me into making an observation, which will be very short. There is a good deal of sense in what the noble Earl, Lord Onslow, has suggested. I do not see that it in any way detracts from the sovereignty of Parliament. If Parliament decided to change, modify or to restrict the Private Act procedure, then it could equally restore it, so that it in no way affects the sovereignty of Parliament. I simply could not follow the argument. I normally am able to follow the arguments of the noble Lord, Lord Renton, but I simply cannot understand him on this issue.

Parliament is a sovereign body. It can take to itself powers, it can enlarge its powers and it can restrict its powers. Provided it always has the right to do so, then its sovereignty remains unimpeached in any way. It seems to me that that issue must eventually be dealt with on pragmatic grounds. The expensive procedure of moving for a Private Bill and running the risk of being defeated on Third Reading, as happened in the Swanage instance—and I agree entirely with the decision which this House came to on that issue—is a terrifying prospect for promoters of the Bill. They may prefer the greater certainty of the planning procedures.

The only reason that I am provoked to make the observation is that I simply did not understand the objection made by the noble Lord, Lord Renton.

Lord Renton

My Lords, before the noble Lord sits down, would he not agree that so long as the Private Bill was in force—having been passed through both Houses and received Royal Assent—then Parliament during the currency of its being in force (and it might last many years) has asserted its sovereignty? Surely it cannot be denied that, if Parliament decides that it should not do that, then it is limiting its sovereignty.

Lord Hooson

My Lords, I am afraid that I do not agree. Parliament has limited its own powers in many ways and in many directions. It still does so virtually every day of the year and that in no way affects its sovereignty.

8.3 p.m.

Lord McIntosh of Haringey

My Lords, we must be grateful to the noble Earl, Lord Onslow, for asking this Question of the Government. There could be two opinions about whether now is the right time to ask it when there is a joint Select Committee still sitting to consider the matter. Nevertheless, he has been able to give the House the benefit of his extensive experience of the Private Bill procedures. That has been valuable. No doubt he will be disappointed that more noble Lords with similar experience have not felt able to take part in the debate, but the matter has been relieved by the intervention of two distinguished lawyers, the noble Lords, Lord Renton and Lord Hooson.

There are two issues which concern us this evening. One is that of foreshores, because that is the specific case mentioned in the Question; the second, arising from it, is the whole question of Private Bill procedures.

First of all I must agree as strongly as I can with the noble Lord, Lord Hooson, when he questions the idea that the rather peculiar arrangements which we have for giving planning permission for developments on foreshores are in any way an essential part of the sovereignty of Parliament or that to give them up—in other words to return them to local planning authorities—would be a derogation of the sovereignty of Parliament. After all, as the noble Lord says, we are all the time delegating responsibility for things which are theoretically within our sovereignty. Every act of local government is a delegated act under powers given to it by Parliament. In that respect foreshore developments are no different from developments in any other part of the country. I confess immediately that, although I have some experience of planning in local government, it has always concerned inland developments and I have no experience of the cases about which we have been talking.

There is something special about foreshores. When there was a threat under French law that the foreshore in front of Brigitte Bardot's villa in St. Tropez should be opened to the public—and I understand that French law requires that foreshores should always be available to the public—she raised an almighty fuss. She said that her privacy would be disturbed and that her life would become intolerable and she threatened to move inland. It is clearly a matter which arouses great passions.

There is a general feeling that the foreshore, our coastline, is something special; it is something that belongs to all the people and there ought to be some particular safeguards against unwise developments. They could be on a number of grounds—on conservation grounds for example. The fact that our coastline is the breeding ground for 40 per cent. of the wading birds of Europe is a not unimportant factor. The fact that harbour developments themselves have very significant implications not just for the immediately surrounding community but also for the transport system of the whole country must also be taken into account, as must the fact that dredging and draining and estuarine developments can have effects far beyond the immediate area with which the local authority is likely to be concerned. Therefore there is a case for treating the foreshore, and harbour and estuarine developments, differently from other planning applications. The matter needs to be considered very carefully. I would not assume that prima facie the case for handing it over directly to local authorities has been proved.

However, I must say that the argument for the existing system, the Private Bill procedure, is very much weaker. There are huge defects in the Private Bill procedure, as I have observed as a nonparticipant and a lay Member of this House. It seems to me that the first problem—although the noble Earl, Lord Onslow, questioned this—is that we normally give a Second Reading to a Private Bill of this kind. The effect is that when local people want to object to the Bill they are told that the development has been approved in principle and therefore their objections can only be about points of detail.

The second point—

The Earl of Onslow

My Lords, I am not sure whether I am in order but with your Lordships' permission perhaps I could explain that at the Committee stage of a Private Bill one has to prove need for a development. It is different from a Public Bill in that on Second Reading a Public Bill approves a principle but in the case of a Private Bill one has to prove need in Committee, which is rather more than accepting Second Reading. That is a technical detail.

Lord McIntosh of Haringey

My Lords, I am obliged to the noble Earl. As I said, I have never served on one of those Committees. I accept his assurance that that is the way the Committee proceeds. I do not think that that affects the fact that, when parliamentary agents are appointed to make representations on behalf of objectors to the Bill, they are told that it has been approved in principle. No doubt the Minister will correct me if I am wrong. The point I am making is that it weakens the powers of objectors if they have to come before a Committee in that sense.

It is also true that appointing parliamentary agents and providing for representation before a Committee dealing with a Private Bill is very much more expensive than making objections before a local authority planning committee or even making representations before a public inquiry.

Lord Renton

My Lords, I think that on reflection the noble Lord will find that objectors have much more freedom to raise their objections under our Private Bill procedure than they have under the ordinary planning procedures. Under the planning procedures the opportunity of even becoming an objector is very limited, whereas almost anyone can become an objector under the Private Bill procedure.

Baroness White

My Lords, before my noble friend deals with that point perhaps he could deal with a detail which affects a situation in Wales where there are a great many proposed foreshore and estuarine developments. You might wish possibly to object but for reasons of expense you refrain from doing so because you know that there is another objection or petition in train and that some of the points about which you may be concerned are likely to be dealt with through the petition of a better financed or stronger body. If it then withdraws its petition, what is the position of the person who originally wished to object?

Lord McIntosh of Haringey

My Lords, I yield to greater expertise on both sides of the House. I am certainly prepared to listen to the noble Lord, Lord Renton, telling me that there are improvements required in the publicity given to planning proposals dealt with by local authorities and increases required in the rights of objectors. I have always felt that very strongly.

However, my noble friend Lady White has raised a valid point, which should be taken seriously; that is, the limitations on the ability of objectors to Private Bills to see that their objection is effectively sustained. The noble Earl, Lord Onslow, gave us some indications of the issues arising on a number of recently contested Private Bills concerning development. Some of them, like those for Okehampton and Lyndhurst, do not come into this Question because they do not concern foreshore developments, but the Swanage Yacht Haven Bill certainly does, and I was one of those who voted at Third Reading that the Bill should be thrown out. I did so not because I in any way set myself up as an expert on Swanage—I have not been there for 40 years—but because it seemed to me that there was a coherent body of public opinion locally which felt that the borough council was not doing the right thing. That opinion was shown by a town poll, which was the reason that in the end swayed me to think that our own Committee was wrong and that the proposal ought not to go ahead.

With due respect to those who devotedly give up their time to be members of committees on these Private Bills, we do not have the expertise to consider these planning matters. We do not have expertise comparable to that of the inspector in a public inquiry. The kind of debates which take place on the Floor of your Lordships' House—apart from the debates in committees, of which I know nothing—on the whole, seem to me to indicate the strength and force of the lobbies and pressure groups which come before your Lordships' House and attempt to influence your Lordships rather than any necessarily coherent view of the principles on which these planning applications should be considered.

Therefore, our view on these Benches is that the Private Bill procedure for foreshore and other developments is seriously defective. We hope that the Select Committee, which is now meeting to consider these matters, will find it possible to make very radical changes to the procedures. I do not presume to offer a conclusion, but it seems to me that there is enough evidence that the public inquiry procedure, with all its defects, as an appeal against decisions of local authorities is preferable to the procedure which is adopted. I do not believe that it would be a serious loss of sovereignty to this House if we ceased to have this kind of Private Bill procedure for this kind of judgment.

8.14 p.m.

The Minister of State, Department of the Environment (The Earl of Caithness)

My Lords, the Question raised by the noble Earl, Lord Onslow, although directed at foreshore development, reflects a wider concern at the use of Private Bills as a means of obtaining planning permission for development proposals. Indeed, the noble Lord, Lord McIntosh, has commented on that. The way this works is that once the principle of a scheme has received parliamentary sanction, the Town and Country Planning General Development Order confers an outline planning permission for the development, leaving the details to be submitted to the local planning authority. In some instances, the Bill may seek parliamentary approval for certain of the details as well.

Thus, where a Private Bill is introduced, normal planning procedures, which for controversial schemes will usually involve the holding of a public inquiry, do not need to be followed. However, the Private Bill procedure allows for petitions to be made and heard by a Select Committee in each House and this facility fulfils a similar function to the public inquiry.

As the noble Earl, Lord Onslow, knows, the whole question of using Private Bill procedures, including in particular the use of such Bills to authorise particular works, is being examined by a joint committee of this House and another place. The Government have given evidence to the joint committee. I am sure the committee will have been sensitive to misgivings that have been expressed about a number of individual cases in recent years. We must await the committee's report. I am no more able than the noble Earl to anticipate what its findings and recommendations may be.

However, I must make it clear that a Private Bill is not a straight alternative to planning procedures for developers. It can be promoted only if the powers cannot be obtained by any other means. The promoters have to declare this in the preamble to the Bill. But if a works scheme requires other authorisations which can only be granted by Parliament, it seems reasonable that Parliament should consider also the planning issues as part of the consideration of the principle of the scheme. This avoids the need for the developers to go through two separate processes in order to achieve the necessary authorisations. There is no reason why Parliament should not give proper consideration to the environmental implications of a scheme if those aspects are brought before it by way of a petition from those with a special interest in the project, or by being raised on the Floor of either this House or another place.

The noble Earl has referred specifically to development on the foreshore—that is, the land which lies between the high-water mark of median high tide and the low-water mark. The general principles which I have just outlined are equally applicable to such development. Most development on the foreshore is in fact dealt with under the planning system.

I should perhaps explain at this point that the normal limit of local authority jurisdiction, and hence of the scope of the planning system, is the mean low-water mark. There are a number of exceptions to this rule, for example in enclosed bays or in harbours for which the local authority is the harbour authority. But the low-water mark is a sensible boundary line. Once one goes beyond it, the normal considerations which local planning authorities take into account when considering planning applications, which relate mainly to the appropriateness of the proposed land use to the uses of neighbouring land, become of less importance. Once out at sea, issues of navigation and fishery have to be considered on which even coastal local authorities do not have, and generally do not need to have, any expertise. Local authorities have a legitimate interest in what goes on just off their shores, but this does not mean that they should be given control. In practice, very few developments are undertaken offshore; each one raises different issues, and, in the absence of any appropriate authority, such projects can be decided only by Parliament.

In those instances where private legislation is promoted for foreshore development it is usually for one of the following reasons. First, it is to authorise activities not within the scope of planning legislation, such as dredging or works extending beyond planning boundaries—that is, as I have said, seaward of mean low water; secondly, to amend existing legislation governing the development of the site; thirdly, to establish the developer as a controlling authority for the development, with the powers necessary for the proper regulation of the development; fourthly, to deal with the question of giving the developer immunity against actionable nuisance for infringing any common law rights, such as navigation and fishing, within the area of the development—I should mention here that a marina would otherwise be subject to these rights, and anyone could legally disrupt its operation by exercising those rights within it. Finally, legislation may be needed to overcome the problem of land which is subject to a public trust—for example, where a local authority wishes to develop a site which it owns for purposes not covered by existing powers.

Where one or more of these reasons apply, the planning system is not capable of giving the requisite authority and the use of private legislation is necessary. The flaw in the argument of my noble friend Lord Onslow is that it would be neither appropriate nor proper for the planning system to be extended to enable a local planning authority, or indeed the Secretary of State for the Environment, on appeal to give the kind of authorisations to which I have referred. It therefore surprised me that the noble Lord, Lord Hooson, spoke in support of my noble friend Lord Onslow, in particular with his knowledge of the possible infringement of common law.

It may be helpful therefore if I refer to two matters which are of interest to my noble friend. The first one that he mentioned was Okehampton. As the noble Lord, Lord McIntosh of Haringey, said, this is not a foreshore development and I too shall not comment on it further. The second is the Swanage Yacht Haven Bill, which was promoted even though the developer had obtained planning permission for the haven itself from Purbeck District Council. In that case there was a two-stage procedure at—I stress the word "at"—the promoter's choice. A Private Bill was required in addition for a number of reasons: first, because common law rights and works extending seaward of the low-water mark were involved; secondly, to allow the transfer of the undertaking of the Swanage Pier Company to the promoters and to repeal the Swanage Pier Act and Orders 1859 to 1948; and, finally, to create the marina itself. These are matters which, as I have explained, had to come before Parliament for the necessary authorisations and which could not have been dealt with under the planning system or on order-making procedure under the Harbours Act 1964.

I entirely understand my noble friend's concern that foreshore development should be brought within the planning umbrella. Frequently it already is within that umbrella. But I hope he will agree that special considerations apply which make it difficult for a purely planning approach always to be adopted. In such cases, we do not think it unreasonable that the whole matter be dealt with by Parliament. However, as I have said, there is a joint committee looking into the whole question of Private Bill legislation and the Government's detailed response must await its report.