Planning and Compensation Bill [H.L.]

HL Deb 04 February 1991 vol 525 cc877-959

2.56 p.m.

Baroness Blatch

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE CHAIRMAN OF COMMITTEES in the Chair.]

Schedule 3 [Development Plans]:

[Amendment No. 163 not moved.]

Baroness Hollis of Heigham moved Amendment No. 164: Page 79, line 24, leave out sub-paragraph (3).

The noble Baroness said: With Amendment No. 164 I shall speak also to Amendments Nos. 167, 176, 177 and 192. The Bill rightly requires that all local authorities should produce local plans and that those local plans should be statutory and shaped with proper consultation, on the one hand, and, on the other, with a presumption in their favour that such plans would make planning more predictable. As the Committee will recall, that is one of the main themes of this Bill.

These amendments bring together two aspects of that issue. Amendments Nos. 164 and 167 refer to the power of the Secretary of State to determine what may or may not be considered by a structure plan. The amendments from this side of the Chamber would allow greater flexibility to the county councils and the metropolitan authorities in the content and considerations that would inform their structure plans and would therefore reduce the amount of central direction from the Secretary of State. We suggest that that is a theme consistent with the fact that structure plans need no longer be submitted to the Secretary of State.

In our view the second cluster of amendments, Amendments Nos. 176, 177 and 192, is even more important. Amendment No. 176 requires that an inquiry into a structure plan must —not as the present wording of the Bill says "may"—be held in public. Amendment No. 177 would permit rather than, as the Bill does at present, forbid people to be heard at a public inquiry. Amendment No. 192 seeks to ensure that documentation concerning mineral workings should be publicly available for scrutiny. Amendments Nos. 176, 177 and 192 together require that consideration of local and structure plans should be held in public, not behind closed doors, and that under certain circumstances third parties should have the right to be heard.

We believe that this amendment is so transparently virtuous that the Government will accept it. As the Bill stands, if these amendments are not accepted a district council, for example, let alone voluntary organisations or third parties, would not have the right to debate in public the issues which inform the structure plan. That would mean that the press, charge payers and the like would be excluded from a discussion of the very plans that are meant to determine the planning framework. If planning is to be informed and seen to be fair, it cannot be right that local authorities, the press, charge payers and third parties should not be able to debate those issues in public; otherwise planning will not carry consent. I beg to move.

Baroness Blatch

I can assure the noble Baroness that it is not our intention here to restrict the scope of structure plans unnecessarily. We want structure plans to address the whole range of strategic land use planning issues, as is clearly shown in the list of topics that we published in Planning Policy Guidance, note 15, last May. Any use of the power provided by these new clauses would be based on that list. Of course, we can foresee instances where a county may have to deal with special circumstances and the provisions will allow the Secretary of State to make specific exceptions in such cases.

Under the current provisions of the 1990 Act, the Secretary of State is able to direct individual authorities to take particular matters into account in preparing their structure plan proposals. The provisions of Schedule 3 at this point provide greater flexibility, allowing the Secretary of State also to prescribe additional matters that authorities generally must take into account. He might wish, for example, to draw the attention of authorities to the impact of global warming and its effect on sea level. The provisions of new Section 31(5)(d) are similar to the current ones for local plans in the 1990 Act.

These are both important provisions which should be retained. I invite the noble Baroness to withdraw her amendment.

Amendment No. 176 is designed to place a duty on county planning authorities to hold an examination in public (EIP) into their draft structure plans. The Bill as it stands reflects the present position; that an EIP may be held but is not obligatory. I assure the noble Baroness that there is no intention that a debate should take place behind closed doors.

We accept that generally an EIP will be desirable where significant alterations are being made to a structure plan and there is substantial public interest or controversy. We also recognise that the Bill's proposals for self-adoption of structure plans by counties will generally make it all the more important that draft plans are examined in public by an independent panel before being adopted. Therefore, the public will be reassured that different points of view have been considered on the key issues before final decisions are taken.

However, we have reservations about making an EIP obligatory in all cases. There will be instances where one simply is not necessary, even in the new circumstances of self-adoption. We have had cases recently where alterations to structure plans have been uncontroversial and have not justified an EIP. We want to leave that possibility open.

Nevertheless, I understand the concern that the decision of the county on the need for an EIP could be less disinterested and impartial than that of the Secretary of State under the present arrangements. For that reason we have included in the Bill a power to enable the Secretary of State to direct that an EIP shall be held in a particular case to consider a particular issue. That appears in subsection (2) of new Section 35B. It should, I believe, be sufficient. But I should like to take the point away and look at it again in the light of today's discussion. It may be that a slightly different approach would meet the anxieties being expressed while still retaining the flexibility that we wish to see in the system.

Amendment No. 177 is, I take it, intended to confer on objectors to a structure plan a right to be heard at the EIP. Again, the Bill as it stands reflects the present position; that all written objections are considered but that appearance at the EIP is by invitation. I believe that the proposed change would be undesirable. The EIP is designed as a mechanism for examining key strategic planning issues on a selective basis. It is not the occasion for considering objections to detailed land use proposals on a map which may affect the interests of particular individuals. In that sense, there is a clear distinction between the function of the EIP and that of the public inquiry into a local plan or unitary development plan where objectors do have the right to be heard and will continue to have that right.

It is, of course, important that issues of substantial controversy are examined at the EIP and that a full range of views is heard on the particular topics selected for examination. But they should be views which are representative of the various interests concerned rather than the individual views of all objectors. As we state in our code of practice: the basic criterion will be the significance of the contribution which, from their knowledge or the views they have expressed, organisations and individuals can be expected to make to the discussion of the matters to be examined". As I said, the Secretary of State will have a reserve power to ensure that this happens: he can direct that particular issues are considered at the EIP. Moreover, the Secretary of State will appoint the panel which conducts the EIP. That panel will have a right to invite participants to the EIP independent of, in particular, any decisions taken by the planning authority. It will, therefore, be open to the chairman of the EIP panel to ensure that participants represent the full range of views and interests which need to be taken into account. I hope that the noble Baroness is reassured by that explanation.

I should add that there is an important practical reason for not granting a general right to be heard at the EIP. One of our aims is to streamline the system and reduce delays in plan preparation and adoption. On the whole, the actual conduct of EIPs has not been the cause of delay; most EIPs are over within a week or two. This is precisely because they examine broad strategic issues and invite participants on a selective basis. If we were to confer a right to be heard at the EIP we should transform EIPs into something much closer to the local plan inquiry. In other words, EIPs could be expected to take many times longer than they do now and reporting arrangements would inevitably be much more time-consuming and elaborate. That would be completely counter to our desire—which I am sure the Opposition shares—to streamline the system and reduce delay.

In the light of that explanation and of my undertaking to give further consideration to the point raised by Amendment No. 176, I hope that the noble Baroness will feel able to withdraw her amendment.

Finally, I turn to Amendment No. 192. It introduces additional wording into new Section 37(2) of the 1990 Act, stipulating that a local minerals plan shall be made available for inspection in accordance with regulations. The general provisions in the new Section 39(2), relating to the deposit of local plans for public inspection, will apply to all types of local plans including minerals plans. I believe that the amendment is unnecessary and should be withdrawn.

Baroness Hollis of Heigham

I thank the Minister for that extremely full and helpful reply and for the recognition that we share a common concern that the planning process should be streamlined while being properly accessible to public opinion. We shall be trying to balance those two desires throughout the debate and often decisions will be matters of discretion and judgment. As regards Amendments Nos. 164 and 167, I am not entirely reassured by the Minister's comments about the residual powers of the Secretary of State. We may wish to return to that matter on Report.

I was pleased to hear the Minister's response to Amendment No. 176. If she were able to take on board the spirit of that amendment and return at a later stage, that would be appreciated by the public. Amendment No. 177 relates to provisions in the Bill forbidding people to be heard at a public inquiry. I ask the Minister to reconsider the phrasing of the provision. Forbidding people to be heard permits no discretion in the system. I understand that the Minister would welcome some discretion while not opening the door to unlimited rights of appeal which would turn the issue into a local planning inquiry. Our needs would be met if the Minister came back on Report with a revised wording of the provision permitting discretion where appropriate.

I must accept the Minister's reading of Amendment No. 192. I am satisfied with her assurances. I beg leave to withdraw Amendment No. 164.

Amendment, by leave, withdrawn.

Viscount Astor moved Amendment No. 165: Page 79, line 28, leave out ("such other matters as may be prescribed or") and insert ("—

1. (a) such diagrams, illustrations or other descriptive or explanatory matter in respect of the general policies as may be prescribed; and
2. (b) such other matters").

On Question, amendment agreed to.

[Amendments Nos. 166 and 167 not moved.]

Viscount Astor moved Amendment No. 168: Page 79, line 37, leave out ("them to take into account").

On Question, amendment agreed to.

Lord Stanley of Alderley moved Amendment No. 169: Page 79, line 37, at end insert: ("(5A) Without prejudice to the generality of subsection (5) above the authority shall have regard to any planning policy guidance given by the Secretary of State for the purpose of encouraging the development and application of renewable sources of energy.").

The noble Lord said: I must first declare an interest. I have a planning application for a wind farm before my local borough council. The effect of the amendment would be to alter Section 31 of the Town and Country Planning Act 1990 dealing with the content of structure plans. There would then be specific references to planning policy guidelines from the Secretary of State for the purpose of encouraging the development of renewable sources of energy.

This amendment suggests that renewable energy projects should, like minerals, be a county matter and subject to the county structure plan. The problem which faces both planners and those attempting to meet the Government's objective of setting up alternative sources of energy, in particular wind farms, is that neither have any idea of where such projects should be sited from an environmental or indeed visual point of view or what criteria should be taken into account—for example, employment, wealth creation and farm diversification.

It is revealing that so far every wind farm, with one possible exception, has been refused planning permission and is to appeal. I am told that the average cost of obtaining planning permission for a wind farm is between £50,000 and £60,000. Surely that alone is a reason for the Secretary of State to give some guidelines.

As an example, I cite the Cemaes wind farm in Powys. Although that was supported by the planning authority, it was objected to by the Countryside Commission and the CPRW. As a result, there is to be a public inquiry involving the following publicly funded organisations: Powys County Council, the Department of the Environment, the Department of Energy, Montgomery District Council, Snowdon National Park, the Welsh Office, the CPRW and the promoters of the scheme.

I accept that the Government may not wish to put such an amendment as this on the face of the Bill. However, a policy statement in the guidelines to planning authorities would surely reduce some of the enormous waste of time and money.

Dyfed County Council has recently commissioned a report by the Open University on the pros and cons of renewable energy for the guidance of its planning committee. Gwynedd Council has recently issued an internal memorandum on the subject. With this amendment I ask that the Department of the Environment should consult with the Department of Energy to discover what is needed in the way of renewable resources. Guidelines should then be issued to county councils for inclusion in their structure plans. I beg to move.

Lord McIntosh of Haringey

I was going to express disinterest, in the correct sense of the word, in the noble Lord's planning application. However, I am advised by my noble friend the Leader of the Opposition that there is nowhere better than Anglesey for a wind farm because it has the strongest winds in Britain. Without wishing in any way to intervene in the negotiations, I believe that on Anglesey, where some years ago there were 100 windmills, wind farms should generally be supported.

However, there are other reasons for supporting the noble Lord's amendment. First, it is an unfortunate side effect of the Electricity Act 1990 that, with the writing-off of investment in other forms of energy, the relative advantages of renewable sources of energy like wind energy have become fewer and the incentive for investment has decreased. That was a most unfortunate effect of the privatisation of the electricity industry.

Secondly, the Government's own White Paper on the environment last year pointed out that wind energy on land has the potential to supply up to 10 per cent. of current electricity needs. It went on to say that there are planning constraints because technically favourable sites are often in areas of natural beauty or importance to wildlife.

We cannot resolve that sort of conflict. However, we can anticipate the possibility of it. One way of achieving that would be to provide that the consideration of renewable sources of energy should be part of the plans. In that way, the matter could be debated in public before any particular application is put forward. The kind of complication to which the noble Lord referred in Powys could be, if not avoided, then truncated. To that extent it seems to me that there is a special case for putting renewable sources of energy on the face of the Bill.

Baroness David

We had an extremely interesting session of the all-party conservation committee last week or the week before when the prime matter for consideration was renewable sources of energy, particularly wind. One point which emerged was that there are no planning guidelines, which, as the noble Lord, Lord Stanley, said, seems very important. The Government should direct their attention to that, and I hope that this amendment will do just that.

3.15 p.m.

Viscount Astor

I recognise that the amendment is designed to aid the cause of renewable energy. However, when drawing up a structure plan a local authority will be required by new Section 31(5) to have regard to the current national policies, which will include planning policy guidance given by the Secretary of State. I know that the noble Lord was concerned that a local authority should mean a county council.

The Government are addressing the need for planning policy guidance on the specific issue of renewable energy resources. Officials in my department are working on that with Department of Energy officials and will produce guidance. As I have explained, local planning authorities will have to take such advice into account. Accordingly, I believe that the noble Lord's amendment is redundant. I hope that he will be satisfied by my answer and will feel able to withdraw the amendment.

Lord Stanley of Alderley

I am very pleased to hear that answer, as I believe will be the noble Lord and the noble Baroness opposite and representatives of the county councils to whom I have spoken. They would like some form of guidance. I am very pleased that it should be widened to county level rather than merely be a district matter. I should like to impress upon my noble friend that this guidance should be published quickly because, as the noble Lord, Lord McIntosh, said, one snag is that there is a capital problem due to privatisation. The sooner the guidelines are issued, the less money will be wasted on useless public inquiries involving a lot of people. Meanwhile, I am pleased to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 170: Page 80, line 23, leave out ("proposal which affects the general policies in the structure plan") and insert ("of their proposals").

On Question, amendment agreed to.

Lord Meston moved Amendment No. 170A: Page 80, line 34, leave out ("or") and insert ("and").

The noble Lord said: The declared purpose of Clause 22 and Schedule 3 is to streamline the development plan system. Under the substituted Section 31(5) of the principal Act, which is to be found on page 79 of the Bill, a local authority must have regard to regional or strategic guidance given by the Secretary of State and also to national policies.

However, conformity with such guidance and such policies is not an express requirement of that part of the proposed new section. However, it is important that a county plan or alterations to it should not be adopted until specifically approved by the Secretary of State. Otherwise, there seems to be a risk of a county plan being adopted although it departs in some way from national guidance and although it may not meet the needs of the county. In turn, that could result in a failure to ensure that district plans meet such needs.

As the Bill is drafted in the new proposed Section 32(7), proposals for the alteration or replacement of a structured plan shall not become operative unless adopted by the authority or approved by the Secretary of State. This amendment seeks to change the word "or" and substitute the word "and" because I believe it is important that the Secretary of State should ensure that county plans provide a sound basis for district plans. In moving the amendment, I readily accept that, as a matter of drafting, other amendments may be necessary to perfect what the amendment seeks to achieve. Subject to that, I beg to move.

Lord McIntosh of Haringey

I confess that I am totally puzzled by the amendment. Section 35A refers to the power of the Secretary of State to call in plans if he thinks it appropriate. If the amendment is carried presumably the Secretary of State will have to call in all plans. I am sure that that was not the noble Lord's purpose.

Baroness Blatch

The noble Lord, Lord McIntosh, is right in his deduction. There are two main reasons for our proposal that in future counties should be free to adopt their own structure plans. First, we want to encourage opportunities for local choice in planning matters. We want communities at county and district level to take their own decisions about the form and location of new development. Secondly, we are concerned to speed up the planning process; to provide procedures which will make it easier for local authorities to keep their plans up-to-date.

At present it takes on average almost two-and-a-half years for the Secretary of State to deal with a structure plan from the time it is submitted to him to the time it is finally approved. Delays of that order can make it difficult to keep plans up to date. While some of the same procedural steps will still have to be gone through, there is little doubt that if counties are allowed to adopt their own plans they may be able to reduce the time-scales significantly.

Concerns regarding self-adoption are that counties may be tempted to ignore national and regional policies and pull up the drawbridge and that structure plans not approved by the Secretary of State will not have sufficient weight and authority to ensure consistency at the level of district local plans. I do not believe that those concerns are well founded. They ignore other aspects of our reform package which need to be taken together with the proposals for self-adoption.

First, we intend to develop a much clearer planning framework at the regional level which will provide the context for county structure plans. Regional planning guidance is already in place in the metropolitan areas and in the South East. We shall shortly be issuing guidance for East Anglia and developing the same approach in other regions.

Secondly, the legislation will provide that in preparing the structure plans authorities must have regard to current national policies and regional planning guidance. We shall have the means to ensure that that happens. The Secretary of State will have reserve powers enabling him to object to a draft plan, to direct that it is modified or, in the last analysis, to call it in and approve it himself.

Thirdly, in Schedule 3 we are providing that local plans must be in general conformity with the structure plans. Again there will be mechanisms to ensure that that happens. The county will issue a statement of conformity when a local plan is put on deposit. If it is pointed out that the local plan does not conform to the structure plan that will count as an objection to the local plan to be considered at the local planning inquiry. Again, the Secretary of State will have very full reserve powers which he will be ready to use if necessary.

The delays associated with structure plan approval have dogged the planning system for 20 years. We are making a proposal for reform which, while giving counties the right to self adopt, embodies safeguards to ensure that wider considerations are not ignored. The amendment would strike at the heart of our reform package and cling to the unsatisfactory status quo. In the light of that explanation I hope that the noble Lord will not press his amendment.

Lord Campbell of Alloway

I listened with great attention and respect to everything said by my noble friend. Her response does not seem to make total sense in view of what we know regarding the reserve powers of the Secretary of State to deal with the matter. We hear words upon words which do not go to the substance of the amendment. It is not a matter on which the Committee should divide; however, I see no reasoned objection to the amendment.

Baroness Blatch

The amendment asks that the Secretary of State approve all proposals for the alteration or replacement of county structure plans; in other words, it takes us even further back than the present situation. Every single modification or replacement of a structure plan would be subject to detailed scrutiny by the Secretary of State. We are saying that where a structure plan flies in the face of all the procedures laid down, the Secretary of State has reserve powers to call in a proposal and that it is a question of balance regarding flexibility in allowing local authorities to determine their own plans within the context of regional guidance. The amendment would mean that every single plan would have to be called in and be subject to detailed scrutiny by the Secretary of State.

Lord Campbell of Alloway

That is so, but in the context of judicial review being the only controlling power, it is important.

Lord Meston

I am sorry if I bewildered the noble Lord, Lord McIntosh of Haringey. This is a probing amendment. It may be that the amendment goes too far for his liking. It may be also that as a matter of drafting it is in the wrong part of the Bill. Subject to that, I reiterate that it is a probing amendment which seeks to discover how the provision is intended to work in practice. The object of a streamlined system designed to produce continuity is that the policy guidelines filter the whole way through the system. It was not my purpose to propose anything which would create undue delay.

As the noble Baroness, Lady Blatch, said, calling-in is a last resort. The amendment is designed to suggest that the input of the Secretary of State might come at an earlier stage, particularly as the wording of the Bill for the new section of the principal Act only requires the local authority to have regard to national guidelines. It is a detailed matter which needs to be considered further. I do not propose to take any additional time of the Committee today. I may wish to come back to it at a later stage; meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 171. Page 80, leave out lines 37 to 45.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 172: Page 81, line 23, after ("by") insert ("or determined in accordance with").

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 173: Page 81, line 49, leave out from ("them") to end of line 3 on page 82.

The noble Baroness said: This is a technical amendment. I beg to move.

On Question, amendment agreed to.

Viscount Astor moved Amendments Nos. 174 and 175: Page 82, line 13, leave out ("consider modifying") and insert ("modify"). Page 83, line 3, at end insert: ("(5A) For the purpose of taking into account any objection or matter, the Secretary of State may, but need not, consult with any local planning authority or other person.").

On Question, amendments agreed to.

[Amendments Nos. 176 and 177 not moved.]

Baroness Blatch moved Amendment No. 178: Page 83, line 38, at end insert:

("Duties to notify authorities responsible for local plans.

1. 35C.—(1) An authority responsible for a structure plan shall, where any proposals of theirs for the alteration or replacement of a structure plan are adopted or approved—
1. (a) notify any authority responsible for a local plan in their area that the proposals have been adopted or approved; and
2. (b) supply that authority with a statement that the local plan is or, as the case may be, is not in general conformity with the altered or new structure plan.
2. (2) A statement that a local plan is not in general conformity with a structure plan shall specify the respects in which it is not in such conformity.
3. (3) An authority responsible for a structure plan shall, where any proposals of theirs for the alteration or replacement of a structure plan are withdrawn, notify any authority responsible for a local plan in their area that the proposals have been withdrawn.
4. (4) Nothing in this section requires an authority to notify or supply a statement to themselves.
5. (5) For the purposes of this section an authority shall be regarded as responsible—
887
1. (a) for a structure plan, if they are entitled to prepare proposals for its alteration or replacement; and
2. (b) for a local plan, if they are under a duty to prepare a local plan or are entitled to prepare proposals for its alteration or replacement.").

The noble Baroness said: This is a technical amendment. I beg to move.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 179 Page 83, line 43, leave out ("consist of") and insert ("contain").

On Question, amendment agreed to.

[Amendments Nos. 180 and 181 not moved.]

3.30 p.m.

Lord McIntosh of Haringey moved Amendment No. 182: Page 83, line 47, at end insert ("and for the provision of relevant transport, recreational and social infrastructure in advance of developments or changes of use of land").

The noble Lord said: There are two ways in which infrastructure for development can be provided. One is through the provision of adequate land—that is the zoning issue—and the second is the issue of investment. Provision for land use is already an accepted part of local plans. I have no criticism of the drafting of the Bill or indeed preceding legislation in that regard. When a local plan provides for development to be permitted it is relatively common, although perhaps not universal, for adequate consideration to be given, for example, to road access or recreation space.

But there is not only the issue of whether the land will become available for the infrastructure but also whether there will be sufficient investment. That is a problem which has concerned the National Association of Local Councils which is advising me on this amendment. It has pointed out that it is quite common for plans, which are not drawn up by villages but by the wider councils, to permit development in a village but not to make adequate provision for the infrastructure. Such facilities as public transport, water and sewerage facilities, pavements, street lighting and, more importantly, the provision for education and social services, should all be preconditions of the possibility envisaged in a local plan which says that there should be development. When development is proposed, especially in rural areas, the question to be asked is: what are the preconditions that will make the development acceptable? Development should not be permitted unless it is clear that at the same time or in advance the necessary infrastructure will become available.

It is not enough for the local plan to be silent on the matter. If it is silent there will be unnecessary dissension when a specific proposal for development comes before the local planning authority. There will be unnecessary disagreement between the people of the village and those in the district council area. It would be much better for the possibility of the infrastructure and the question of what infrastructure is necessary to be foreseen in the local plan rather than to leave it as a matter for debate when a specific proposal comes forward.

I hope that the Government will think that this is a useful extension to the provisions which already exist in local plans for the consideration of land use for infrastructure. We hope that the Government will agree that the inclusion of an amendment on these lines will go a considerable way to calming some of the fears which local people, particularly in rural areas, very often have about developments in their localities. I beg to move.

Baroness Blatch

Subsection (2) of new Section 36 defines a local plan as consisting of a written statement of the authority's detailed policies for the development and use of land in the area, and goes on to say that this should be taken to include the improvement of the physical environment and the management of traffic. We believe that this broad definition is sufficient to allow the authority to include detailed infrastructure policies wherever they are needed. However, we do not believe that they would be needed in every plan. That is a matter for the local planning authority to decide on, after public participation and in the light of objections to its deposited plan. It would not be appropriate to include an additional, mandatory requirement in the primary legislation, as envisaged by the noble Lord in this admendment. However, the need for and relevance of such policies is a matter that the Secretary of State may wish to take up in his guidance to local authorities on the content of their local plans. I hope that the views of the noble Lord will be met in that way. I therefore hope that he will not press the amendment.

Lord McIntosh of Haringey

; I fear that the noble Baroness has not fully understood the amendment. When she says that it would be undesirable for every single local plan to contain a mandatory statement on the, provision of relevant transport, recreational and social infrastructure I agree with her. However that is not what the amendment says. It says that it would be, in advance of developments or changes of use of land". If there were to be no developments or changes in the use of land, I agree that there would be no need for such a statement.

I am equally unconvinced by what she said about paragraph 36(2). As the noble Baroness said, it includes the phrase, (including the improvement of the physical environment and the management of traffic)". But that is only a small part of the kind of infrastructure to which I referred. I was quite specific in saying that it is not enough to consider the land use implications of the infrastructure. The investment implications must also be considered. On the whole I find the Minister's reply to this perhaps imperfect amendment quite unsatisfactory. It may be a matter to which I shall return at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 183 not moved.]

The Chairman of Committees (Lord Aberdare)

If Amendment No. 184 is agreed to I cannot call Amendment No. 185.

Viscount Astor moved Amendment No. 184: Page 84, leave out lines 1 to 5 and insert: ("(4) A local plan shall not contain—

1. (a) any policies in respect of the winning and working of minerals or the depositing of mineral waste, unless it is a plan for a National Park;
2. (b) any policies in respect of the depositing of refuse or waste materials other than mineral waste, unless it is a plan for a National Park or for an area where such depositing is not a county matter for the purposes of Schedule 1.").

The noble Viscount said: The local plan provisions set out in Schedule 3 to the Bill require local planning authorities to draw up detailed development plans for their area covering the types of land use and development for which they have development control responsibility. The one exception to this is waste disposal development in the English counties. Amendments Nos. 184 and 200 fill this gap by requiring the appropriate development control authorities to draw up waste local plans. This responsibility will rest with the county planning authorities in England because they, not the districts, are responsible for deciding planning applications relating to waste. In Wales development control responsibility for waste disposal lies with district councils and they will be required to include their waste planning policies in their general local plans. The amendment also makes special provision for the national parks which will be able to choose between preparing a separate waste local plan or including their waste planning policies in their general park-wide plan. Both counties and national parks will be able to combine their waste local plans with their minerals plan if they wish to do so.

The new plans will set out authorities' detailed land use policies for the disposal and treatment of waste within the broad strategic framework provided by the structure plan. They will ensure that planning authorities consider the land use implications of their waste policies from a strategic point of view rather than deciding applications in isolation. This will help authorities in deciding planning applications for new waste disposal facilities and as a consequence reduce the number going to appeal. Where applications do go to appeal or are called in by the Secretary of State, then the plans will provide better guidelines for the inspector.

I am sure that this will be of great benefit to the waste disposal industry, both because the planning process will be speeded up, and, perhaps more importantly, because they will have guidelines on the types and location of waste facilities that are likely to be acceptable in planning terms. The new plans do not, however, replace the plans which waste authorities are required to draw up under the Control of Pollution Act 1974—a requirement which has very recently been strengthened in the Environmental Protection Act 1990. The two plans will be complementary.

The development plans will address the land use implications of authorities' waste policies. In particular, they will consider the need for sites and facilities in particular areas; the types of locations that are likely to be appropriate (and of course those that would not be suitable) as well as the planning criteria that would be expected to apply to such developments, and the geological, hydrological and other considerations that will need to be taken into account. The two plans will clearly need to be consistent, and subsection (5) of the new clause will enable the Secretary of State to require authorities to take into account their environmental protection plans in drawing up their local plans. This is important because it will ensure that authorities are not able to shy away from making adequate land use provision for the waste disposal facilities they are likely to need and which they have enunciated in their environmental protection plan.

We have consulted interested parties on these proposals, and I am glad to say that there was an almost universal welcome for them, both from the relevant planning authorities and from the waste disposal industry. A number of detailed comments have been made on the way in which the new arrangements should operate. These will be important for the formulation of guidance on plan preparation, but they do not pose any difficulties for the main proposition. Waste disposal facilities, whether they be landfill sites, incinerators or civic amenity sites and the like, are never popular, but we cannot avoid making adequate provision for them. I hope that this new clause will discourage authorities from taking a NIMBY attitude, and to plan strategically for their waste disposal. I urge noble Lords to support it.

Lord McIntosh of Haringey

I am encouraged to learn that the Government have consulted interesting parties on these amendments. I rather suspect that they consulted some boring parties as well, but that is their problem not ours. We are not opposed to the elimination of duplication in this matter and we welcome these amendments. If the Government are so keen on avoiding duplication I am bound to ask why they were so resistant to the amendment moved by my noble friends Lady Nicol and Lady David about coastal areas. In that case it was not simply a matter of duplication, it was much worse. There were some aspects of coastal area conservation which were not covered adequately by any authorities. I hope they will see their rethinking on this matter as an opportunity for them also to rethink on the earlier matters we discussed.

On Question, amendment agreed to.

[Amendment No. 185 not moved.]

Baroness Blatch moved Amendment No. 186: Page 84, line 6, leave out from ("contain") to end of line 12 and insert ("—

1. (a) a map illustrating each of the detailed policies; and
2. (b) such diagrams, illustrations or other descriptive or explanatory matter in respect of the policies as may be prescribed,

and may contain such descriptive or explanatory matter as the authority think appropriate.").

On Question, amendment agreed to.

Viscount Astor moved Amendments Nos. 187 to 191: Page 84, line 22, leave out ("which") and insert ("as the"). Page 84, line 24, leave out ("them to take into account"). Page 84, line 38, leave out ("local minerals") and insert ("minerals local"). Page 84, line 39, leave out ("local minerals") and insert ("minerals local"). Page 84, line 39, leave out ("consist of") and insert ("contain").

On Question, amendments agreed to.

[Amendment No. 192 not moved.]

Viscount Astor moved Amendments Nos. 193 to 197: Page 84, line 43, at end insert ("within such period (if any) as the Secretary of State may direct"). Page 84, line 44, leave out ("local minerals") and insert ("minerals local"). Page 84, line 50, leave out ("local minerals") and insert ("minerals local"). Page 84, line 52, leave out ("which") and insert ("as"). Page 84, line 53, leave out ("them to take into account").

On Question, amendments agreed to.

Viscount Astor moved Amendments Nos. 198 and 199: Page 85, line 2, leave out ("local minerals") and insert ("minerals local"). Page 85, line 5, leave out ("local minerals") and insert ("minerals local").

On Question, amendments agreed to.

Viscount Astor moved Amendment No. 200: Page 85, line 8, at end insert:

("Waste policies.

37A.—(1) In this section— waste policies" means detailed policies in respect of development which involves the depositing of refuse or waste materials other than mineral waste; and waste local plan" means a plan containing waste policies.

(2) A local planning authority other than an excluded authority shall, within such period (if any) as the Secretary of State may direct—

1. (a) prepare a waste local plan for their area; or
2. (b) include their waste policies in their minerals local plan.

(3) A local planning authority are an excluded authority for the purposes of subsection (2) if they are an authority—

1. (a) for a National Park;
2. (b) for an area where waste policies are not a county matter for the purposes of Schedule 1.

(4) A local planning authority for a National Park shall within such period (if any) as the Secretary of State may direct—

1. (a) prepare a waste local plan for their area; or
2. (b) include their waste policies in—
1. (i) their minerals local plan; or
2. (ii) their local plan.

(5) In formulating their waste policies, the authority shall have regard to such information and other considerations as the Secretary of State may prescribe or, in a particular case, direct.

(6) Subsections (3), (5), (9) and (10) of section 36 apply with respect to waste local plans as they apply with respect to local plans.

(7) The following provisions of this Chapter apply with respect to waste local plans as they apply with respect to local plans, but as if references to a local planning authority were references to the authority who arc entitled to prepare a waste local plan.").

On Question, amendment agreed to.

[Amendment No. 201 not moved.]

Baroness Blatch moved Amendment No. 202: Page 85, line 15, leave out ("notified under section 32(7) that a structure plan has been altered or replaced") and insert ("supplied with a statement under section 35C that the local plan is not in general conformity with the structure plan").

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 203: Page 85, line 24, at end insert: ("(5) Subject to the following provisions of this Chapter and section 287, proposals for the alteration or replacement of a local plan shall become operative on the date on which they are adopted.").

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 204: Page 85, line 38, leave out ("subsection (4)") and insert ("section 46(1)").

The noble Baroness said: In moving Amendment No. 204, I shall speak also to Amendments Nos. 205, 206, 207, 210, 214 and 215. These amendments are all concerned with the relationship between structure and local plans and revise the provisions already in Schedule 3 relating to a local plan's conformity or non-comformity with the structure plan. I beg to move.

Lord McIntosh of Haringey

If the noble Baroness will forgive me, she referred to Amendment No. 205. That is not part of this group.

Baroness Blatch

I apologise to the Committee. I am speaking to Amendments Nos. 206, 207, 210, 214 and 215. With that explanation, I commend the amendments to the Committee.

On Question, amendment agreed to.

3.45 p.m.

Lord McIntosh of Haringey moved Amendment No. 205: Page 85, line 43, at end insert: ("(aa) send a copy of the relevant documents not later than the date at which they are made available for inspection to the council of any parish or community which or part of which is within the area to which the local plan relates").

The noble Lord said: In moving Amendment No. 205, I should like to speak also to Amendment No. 209. Amendment No. 205 provides that the council shall send a copy of the relevant documents to a parish or community which is within the area to which the local plan relates at the same time as or earlier than the date on which it is made available for inspection. Amendment No. 209 provides that details of any amendments shall be made available to the parish or community council.

We recognise that the parish and community councils are statutorily entitled to be consulted on local plans or revisions of local plans. We recognise that in the vast majority of cases district councils behave well in the preparation of their local plans and give local councils adequate notice. It has been brought to our attention by a number of parish and community councils that sometimes the observation of the right to be involved is more in the letter than in the spirit. What is really required, we are told, is that the parish councils should get copies as of right of the plan at an early enough stage to do something about it and to consult their local people. Unless they do that they will not fulfil their obligations under their own constitution to make informed comments about planning applications in their area.

These amendments would give parish councils a necessary status in the preparation of local plans. They do that by giving them a right to their own copy of the draft and not simply the right to inspect a draft, which is what formally happens now. It gives them a statutory right of objection at the formulation of the new plan rather than at a later stage. In most cases district councils will behave well and will be doing this already. However, to deal with the minority of cases where there is not that degree of co-operation, it seems to the National Association of Local Councils that it would be desirable to put this extra provision—not a very onerous provision—on the face of the Bill. I beg to move.

The Earl of Selkirk

I think there is a great deal in what the noble Lord, Lord McIntosh, says. One of the problems of all planning is to see that people know what is happening and what is the effect of the plan. That is very important. In many cases it does not come out very easily because there are no normal places where people meet and hear the gossip about what is being done. I do not know how this will work out but I think the principle behind it is desirable if planning is to be accepted and effective.

Viscount Astor

These amendments—perhaps I should say "interesting" amendments—would require the planning authorities to send a copy of their deposited plan proposals to parish or community councils in their area and would specify that councils may make objections in acordance with regulations.

Provision will be made in regulations for parish and community councils, along with other public authorities in the area, to be consulted on the local plan proposals before they are put on deposit. It will then be open to those bodies to object or make representations when the deposited proposals are advertised. New Section 39 simply clarifies that the Secretary of State may make an objection. There is no need for similar clarification or special provision in the legislation at this point in the case of parish or community councils. They, like any other body, may object to local plan proposals. I believe therefore that the amendments are unnecessary and I invite the noble Lord to withdraw them.

Lord McIntosh of Haringey

I am grateful for the assurance that the regulations will include sufficient instruction to the local planning authority to ensure that the rights of parish and community councils are protected. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendments Nos. 206 and 207: Page 85, line 50, leave out ("of conformity or non conformity supplied under section 46") and insert ("supplied under section 46(2)"). Page 86, leave out lines 1 to 7.

The noble Baroness said: I spoke to these amendments with Amendment No. 204. I beg to move.

On Question, amendments agreed to.

Viscount Astor moved Amendment No. 208: Page 86, line 13, after ("by") insert ("or determined in accordance with").

On Question, amendment agreed to.

[Amendment No. 209 not moved.]

Baroness Blatch moved Amendment No. 210: Page 86, leave out lines 22 to 24.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 211: Page 86, line 35, leave out first ("for").

On Question, amendment agreed to.

[Amendment No. 212 not moved.]

Viscount Astor moved Amendment No. 213: Page 87, line 2, at end insert: ("(2) In subsection (4) of that section for "consider modifying" there is substituted "modify".").

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 214 and 215: Page 87, line 17, leave out from ("46") to end of line 48 and insert ("to 48 (conformity between local plan and structure plan) there is substituted—

"Conformity between plans.

46.—(1) An authority responsible for a local plan shall not make copies available as mentioned in section 39(2) unless—

1. (a) they have served on the authority responsible for the structure plan in their area a copy of the plan or the proposals; and
2. (b) such period as may be prescribed has elapsed since they served the copy of the plan or proposals.

(2) Where a local planning authority have been served with a copy as mentioned in subsection (1) they shall, before the end of any period prescribed for the purposes of that subsection, supply the authority responsible for the local plan with—

1. (a) a statement that the plan or the proposals are in general conformity with the structure plan; or
2. (b) a statement that the plan or the proposals are not in such conformity.

(3) A statement that a plan or proposals are not in such conformity shall specify the respects in which the plan or proposals are not in such conformity.

(4) Any such statement shall be treated for the purposes of this Chapter as an objection made in accordance with the regulations.

(5) Nothing in this section requires an authority to serve a copy on or supply a statement to themselves.

(6) Where—

1. (a) a local planning authority propose to make, alter or replace a local plan;
2. (b) copies of proposals for the alteration or replacement of the structure plan for their area have been made available for inspection under section 33(2); and
895
3. (c) the authority mentioned in paragraph (a) include in any relevant copy of the plan or proposals a statement that they are making the permitted assumption,

the permitted assumption shall, subject to subsection (9), be made for all purposes (including in particular any question as to conformity between plans).

(7) In this section "the permitted assumption" means thy: assumption that—

1. (a) the proposals mentioned in subsection (6) (b); or
2. (b) if any proposed modifications to those proposals are published in accordance with regulations made under section 53, the proposals as so modified,

have been adopted.

(8) For the purposes of subsection (6) (c) a copy is a relevant copy of a plan or proposals if it is—

1. (a) served under subsection (1) (a); or
2. (b) made available or sent under section 39(2).

(9) The permitted assumption shall not be made at any time after the authority mentioned in subsection (6) (a) know that the proposals mentioned in subsection (6) (b) have been withdrawn.

(10) The provisions of a local plan prevail for all purposes over any conflicting provisions in the relevant structure plan unless the local plan is one—

1. (a) stated under section 35C not to be in general conformity with the structure plan; and
2. (b) neither altered nor replaced after the statement was supplied.

(11) The Secretary of State may make regulations with respect to cases where provisions in a local plan conflict with provisions in—

1. (a) a minerals local plan; or
2. (b) a waste local plan.

(12) Subsection (5) of section 35C applies for the purposes of this section as it applies for the purposes of that."").

Page 88, line 1, leave out paragraph 23.

On Question, amendments agreed to.

Viscount Astor moved Amendment No. 216: Page 88, line 18, leave out ("county") and insert ("local").

On Question, amendment agreed to.

Baroness Blatch moved Amendment Nos. 217, 218, 219, 220, 221, 222 and 223: Page 88, line 19, leave out ("under section 32(8)") and insert ("and supply a statement under section 35C"). Page 88, line 27, leave out ("a") and insert ("the provisions of the relevant"). Page 88, line 37, leave out ("be"). Page 88, line 39, at end insert: ("(2) The Secretary of State may direct that proposals for the alteration or replacement of a structure plan or a local plan shall not be prepared in relation to the area of an urban development corporation."). Page 89, leave out lines 27 to 29. Page 90, line 4, leave out ("paragraph 2 is omitted") and insert ("for paragraph 2, there is substituted— 2. The functions of a local planning authority—

1. (a) under sections 30 to 35B, 37A(2) and 50(1), (4), (5) and (7) shall be exercisable by the county planning authority and not by the district planning authority;
2. (b) under section 36, 38, 39, 42 to 44 and 50(6), (7A) and (8) shall be exercisable by the district planning authority and not by the county planning authority;

and references to a local planning authority in those sections shall be construed accordingly.""). Page 90, line 6, leave out from ("paragraph") to end of line 8 and insert ("6(a) for "Part II" there is substituted "sections 30 to 35C, 46(2) and 50(1), (4), (5) and (7)"").

The noble Baroness said: These amendments were spoken to previously in connection with other amendments. I beg to move.

On Question, amendments agreed to.

Schedule 3, as amended, agreed to.

Clause 23 [Simplified planning zones]:

On Question, Whether Clause 23 shall stand part of the Bill?

Baroness Hollis of Heigham

I ask Members of the Committee not to permit Clause 23 to stand part of the Bill. If one looks at this clause in conjunction with Amendment No. 176, which we discussed earlier this afternoon, it seems to suggest that there is a worrying subtext to the Bill; namely, that the best and sometimes the only way in the eyes of the Government to streamline planning is to reduce public consultation. We on this side of the Committee argue that the best way to streamline planning, along with the Carnwath proposals which we willingly accept, is to provide additional staff on the one hand and to reduce frivolous appeals and twin-tracking on the other.

The provisions of Clause 23 restrict public consultation on the making of simplified planning zones. I believe that it is widely agreed that such planning zones, SPZs, have not worked. The Government believe—wrongly in my view—that SPZs have not worked because the consultation process is at fault. The argument is that if you cut out consultation, SPZs will be widely adopted. Hence the introduction of this clause.

We argue that not only is consultation essential to planning by consent, which is a theme we have argued in connection with various other related amendments, but also that SPZs fundamentally misunderstand the nature of the planning process. SPZs basically offer zoning; that is, the granting of advanced planning permission for certain types of specified development. Therefore, a developer would not have to submit a planning application or pay a fee. Behind it is the belief that planning development is not occurring in run-down or derelict areas because of the rigidity or cumbersome and negative nature of the planning process—cumbersomeness, of course, includes public consultation. The Government believe that if they make planning easier then development will occur.

We on this side of the Committee do not necessarily object to zoning. I had experience of the process when working in the United States. However, the proposal to abolish or reduce consultation suggests a misunderstanding of why SPZS have so far not worked. At present there are just two of them in England in Corby and Derby, there is one in Scotland and one proposed for Wales. Ten more are being considered and two local authorities—namely, Walsall and Enfield—have considered SPZs and, as I understand it, have rejected them.

The question therefore is whether the Government are right to believe that the reason SPZs have not been more widely adopted is the failure of the consultation process. It may help if we were to look at what has been happening in regard to the two SPZs which were rejected and also at the one at Derby which is regarded as successful. I suggest that in all three cases, contrary to the Minister's view, the issue of consultation is irrelevant.

In Walsall the SPZ was initiated by the developer, but I understand that he found that the planning process was faster. The local authority found that, as his application involved metal salvage, in the public interest they needed to retain environmental controls offered by the planning process but reduced by SPZs. One of the reasons why zoning in the United States involves very extensive public inquiry is precisely to retain such environmental controls.

The second SPZ which was considered by a local authority but rejected was in Enfield. There the local authority proposed the SPZ on former industrial, Gas Board land. However, one of the land owners objected, preferring the security of the existing planning process. In other words, in both cases the parties preferred the existing planning system as being simpler, quicker and offering better safeguards for all of the interests involved. In both cases a jointly prepared planning brief was preferred to an SPZ.

The third example to which I should like to draw the attention of the Committee is that of Derby. The SPZ which was introduced there appears to be widely successful: it zoned 21 acres for small freehold units. However, as I understand it, Derby council suspects that it was the city grant—that is, the financial bait and carrot—rather than the SPZ framework which made the venture such a success. The council believes that an OPP, an outline planning permission, may have had the same effect with rather less work being involved.

As I said, we on this side of the Committee have no objection to zoning as such, although we suspect that OPPs within the framework of the local plan can have the same advantages. However, we believe that SPZs are failing because they carry no financial attractiveness which would make them analagous to enterprise zones. I suggest that most developers are more concerned with the level playing field as regards other developers than they are with the reduction of planning consultation which the clause suggests.

Any clause which suggests that SPZs would be more attractive and more widely adopted by local authorities simply by reducing public consultation is, I suggest, a serious misjudgment. The Walsall experience and the examples of other areas where local authorities have rejected SPZs show that it is precisely the environmental issues of design, covering, landscaping and car parking that should not be eroded from public debate. If Members of the Committee accept this clause, such considerations will be eroded. It is the more dubious developers that may seek SPZs and it is precisely such developments which need to be brought within proper planning consultation procedures. As the National Housing and Town Planning Council has said, it is the possibility of public inquiry that keeps planning standards high. SPZs would undermine that process. I hope that the Committee will not accept Clause 23.

4 p.m.

Baroness Blatch

The noble Baroness is very negative about SPZs; indeed, she has concentrated on the negative aspects involved. Clause 23 brings into effect Schedule 4 to the Bill which contains measures for streamlining simplified planning zone procedures. These measures stem from proposals set out in our White Paper on The Future of Development Plans and from the recommendations of a research report commissioned by the department last February to look at the efficiency of SPZ procedures in practice. That report was published on 22nd January.

Simplified planning zones are designed to quicken the pace of development of areas where it is most needed. They remove uncertainty for prospective developers by granting planning permission for the types of development specified in the scheme, thus enabling development to go ahead without the need for a separate planning application, or a related planning fee. The success of schemes in Derby and Corby has proved how useful SPZs can be in promoting development and encouraging valuable new business and employment opportunities. I understand that Derby is planning a second SPZ.

Despite such success, some local authorities and developers have hesitated from proceeding with SPZ proposals because of what they perceive as cumbersome and time-consuming procedures. Speed and simplicity is the essence of SPZs. Our streamlining proposals seek to improve the balance between that and the need for adequate public participation.

The key provisions are to make public participation before deposit optional, and to remove the mandatory requirement for the local planning authority to hold a public local inquiry into objections. The first of them will bring SPZ procedures into line with the improvements which we have put forward elsewhere in the Bill in respect of local plans and unitary development plans. It will allow the local authority flexibility to decide what initial consultations are appropriate to each scheme before placing it on deposit for formal objection.

The second key provision, which allows the local authority discretion on whether or not to hold a local inquiry, may be causing some Members of the Committee some concern; indeed, it certainly appears to be worrying the noble Baroness. I understand the concern. However, I can reassure the Committee that the provision is not designed to limit in any way the requirement for duly made objections to be fully considered. Of course, there has never been a right for third party objectors to planning applications to be heard at a public inquiry, unless the application has been called in by the Secretary of State.

SPZ schemes are in many respects analogous to planning applications and I believe it is appropriate that they should be treated in a similar way. Indeed, experience has shown that for many schemes there are likely to be only a handful of objections and these could be dealt with quite adequately on the basis of written representations. In such cases a public local inquiry would only be a waste of time and effort. Local authorities will of course need some guidance on these matters and we intend to issue advice on when it would normally be appropriate to hold an inquiry (for example, where the scheme represents a substantial departure from the development plan; raises strategic planning issues; where there is substantial controversy; or where it involves a substantial area of land in the authority's ownership). In addition, the Secretary of State will have power to direct that an inquiry is held in a particular case if he considers that a planning authority is being unreasonable in declining to hold one.

These simplified and more flexible procedures were widely welcomed when we announced them in August in a consultation paper, particularly the proposals for changing the requirement for public participation at the pre-deposit stage and the more detailed improvements to adoption procedures. I hope that Clause 23 will be allowed to stand part of the Bill.

Baroness Hollis of Heigham

I have to say that I have some difficulty in accepting the Minister's reading of the success and relevance of SPZs. They have not been successful and the reason is, in my understanding, that developers prefer the planning process by negotiation that currently exists rather than any particular reluctance by local authorities to go down that line. I repeat that the Derby evidence suggests that it is not so much the SPZ streamlined patterning which is attractive to developers as the financial inducements which were offered. Wherever local authorities have offered financial inducements, whether through enterprise zones or through rent and rate rebatements on their own sites, this has had much the same effect.

Nor, I would suggest to your Lordships, is it the case that under SPZs individual developments will be treated in the same way as developments under individual planning applications. The point about SPZs is that the ground is cleared in advance, which may indeed be desirable, and this means, therefore, that individual developments do not come within the process of public consultation. Many of those individual developments will be entirely appropriate, uncontroversial and problem free, but there is a lot of suspicion on the part of local authorities that SPZs will attract precisely those developments that are doubtful and dubious.

They may be socially necessary but they are nonetheless what we would call nonconforming usages: they may be salvage or waste disposal or may involve metal spraying, for example, and the like. Therefore they are precisely the sorts of usages that should come within the planning process so that individual conditions may be attached to them. By passing this clause we would allow marginal and dubious activities to go ahead against the public interest without the protection of individual controls. I hope that the Minister will think again on this. I should therefore like to test the opinion of the Committee.

4.4 p.m.

On Question, Whether Clause 23 shall stand part of the Bill?

Their Lordships divided: Contents, 126; Not-Contents, 69.

Division No. 1
CONTENTS
Acton, L.	Lauderdale, E.
Aldington, L.	Layton, L.
Alexander of Tunis, E.	Long, V.
Arran, E.	Lucas of Chilworth, L.
Astor, V.	Luke, L.
Atholl, D.	Lurgan, L.
Attlee, E.	Lyell, L.
Auckland, L.	Lytton, E.
Bauer, L.	McColl of Dulwich, L.
Belhaven and Stenton, L.	Mackay of Clashfern, L.
Beloff, L.	Macleod of Borve, B.
Belstead, L.	Mancroft, L.
Bessborough, E.	Manton, L.
Blatch, B.	Margadale, L.
Blyth, L.	Masham of Ilton, B.
Borthwick, L.	Merrivale, L.
Boyd-Carpenter, L.	Mersey, V.
Braye, B.	Milverton, L.
Brigstocke, B.	Monteagle of Brandon, L.
Brougham and Vaux, L.	Mottistone, L.
Butterworth, L.	Mowbray and Stourton, L.
Caithness, E.	Munster, E.
Campbell of Alloway, L.	Murton of Lindisfarne, L.
Campbell of Croy, L.	Nelson, E.
Carnegy of Lour, B.	Norrie, L.
Carnock, L.	Nugent of Guildford, L.
Cavendish of Furness, L.	Onslow, E.
Clanwilliam, E.	Orkney, E.
Cochrane of Cults, L.	Orr-Ewing, L.
Cockfield, L.	Oxfuird, V.
Coleraine, L.	Palmer, L.
Constantine of Stanmore, L.	Park of Monmouth, B.
Cornwallis, L.	Pender, L.
Cottesloe, L.	Polwarth, L.
Davidson, V. [Teller.]	Porritt, L.
De Freyne, L.	Pym, L.
Denham, L. [Teller.]	Quinton, L.
Eccles, of Moulton, B.	Reay, L.
Effingham, E.	Renton, L.
Elles, B.	Rodney, L.
Elliot of Harwood, B.	Saltoun of Abernethy, Ly.
Errol of Hale, L.	Selkirk, E.
Faithfull, B.	Shaughnessy, L.
Flather, B.	Skelmersdale, L.
Fraser of Carmyllie, L.	Stanley of Alderley, L.
Fraser of Kilmorack, L.	Strange, B.
Gainford, L.	Strathmore and Kinghorne, E
Gainsborough, E.	Strathspey, L.
Gray of Contin, L.	Sudeley, L.
Hailsham of Saint Marylebone, L.	Swansea, L.
	Terrington, L.
Henley, L.	Thomas of Gwydir, L.
Hesketh, L.	Trefgarne, L.
Hives, L.	Trumpington, B.
Hood, V.	Ullswater, V.
Hooper, B.	Vaux of Harrowden, L.
Howe, E.	Waddington, L.
Hylton-Foster, B.	Wade of Chorlton, L.
Jeffreys, L.	Westbury, L.
Killearn, L.	Whitelaw, V.
Kimball, L.	Wolfson, L.
King of Wartnaby, L.	Wynford, L.
Kinloss, Ly.	Young, B.
Knollys, V.
NOT-CONTENTS
Addington, L.	Broadbridge, L.
Airedale, L.	Bruce of Donington, L.
Ardwick, L.	Carmichael of Kelvingrove, L.
Aylestone, L.	Cledwyn of Penrhos, L.
Blackstone, B.	Clinton-Davis, L.

Cocks of Hartcliffe, L.	Lockwood, B.
David, B.	Longford, E.
Dean of Beswick, L.	McIntosh of Haringey, L.
Donaldson of Kingsbridge, L.	McNair, L.
Dormand of Easington, L.	Mason of Barnsley, L.
Ennals, L.	Mishcon, L.
Ewart-Biggs, B.	Molloy, L.
Ezra, L.	Morris of Castle Morris, L.
Falkland, V.	Nicol, B.
Gallacher, L. [Teller.]	Northfield, L.
Galpern, L.	Phillips, B.
Gladwyn, L.	Richard, L.
Graham of Edmonton, L. [Teller.]	Ritchie of Dundee, L.
	Ross of Newport, L.
Grey, E.	Sainsbury, L.
Grimond, L.	Seear, B.
Hampton, L.	Serota, B.
Harris of Greenwich, L.	Shepherd, L.
Hayter, L.	Soper, L.
Hirshfield, L.	Stedman, B.
Hollis of Heigham, B.	Stoddart of Swindon, L.
Houghton of Sowerby, L.	Strabolgi, L.
Hughes, L.	Taylor of Gryfe, L.
Jeger, B.	Tordoff, L.
Jenkins of Hillhead, L.	Turner of Camden, B.
Jenkins of Putney, L.	Underhill, L.
Kearton, L.	White, B.
Kilbracken, L.	Williams of Elvel, L.
Leatherland, L.	Winchilsea and Nottingham, E
Llewelyn-Davies of Hastoe, B.	Winterbottom, L.

Resolved in the affirmative, and clause agreed to accordingly.

4.12 p.m.

Schedule 4 [Simplified Planning Zones]:

Baroness Blatch moved Amendment No. 224: Page 90, line 32, after ("prescribed") insert ("or as the Secretary of State may, in a particular case, direct").

The noble Baroness said: I should like to speak also to Amendments Nos. 225, 226, 227, 229A and 272. Amendments Nos. 224 to 227 introduce some minor consequential changes to Schedule 4 which simplify and improve procedures for the preparation, adoption and alteration of SPZs in England and Wales.

The purposes of Amendments Nos. 229A and 272 are to introduce a new clause and schedule making provision for SPZs in Scotland in equivalent terms to those for England and Wales in Clause 23 and Schedule 4. I beg to move.

Lord McIntosh of Haringey

I realise that the Minister is helping the Committee by moving rapidly through the business, but although we have taken a decision on the principle that we are not opposed to Schedule 4 or Clause 23, we should not let significant amendments to Schedule 4 go through without question. I refer in particular to Amendment No. 226. It is difficult to interpret the amendments because they are amendments to a principal Act and we have to look back not just to the Bill but to the principal Act.

My understanding of Amendment No. 226 is that it strengthens the Secretary of State's existing power to direct local planning authorities which are thought to be out of line in producing their SPZs. We do not need to go into the principle of SPZs all over again, but surely the only acceptable justification for SPZs is that they are produced by agreement between the local planning authority and potential developers. If the Secretary of State is to have strengthened powers to direct local authorities—in other words, in effect to have the possibility of overruling local authorities and imposing SPZs, where there will be reduced rights of public consultation on planning applications—that surely is a further step in a dangerous direction, and one that should be opposed.

Baroness Blatch

Amendment No. 226 introduces a new sub-paragraph to paragraph 7 of Schedule 4 which modifies the provisions of paragraph 9(1) of Schedule 7 to the 1990 Act for the adoption of SPZ proposals. Paragraph 9(3) of that schedule empowers the Secretary of State to direct an authority: to consider modifying the proposals", to such an extent as may be specified in the direction before adopting them. Amendment No. 226 clarifies that position by deleting the word "consider". That is in line with similar amendments proposed in relation to the adoption of UDPs and local plans.

Lord McIntosh of Haringey

The Minister has been helpful in clarifying the amendment, but what it says more clearly now is that the Secretary of State can direct a local planning authority to modify its proposals for SPZs. In other words, he is taking away that last vestige of responsibility of the local planning authority in the designation of SPZs. I am bound to say that I find that unacceptable. If it had been spelt out clearly at the beginning, I believe that other Members of the Committee would also have found it unacceptable. As we have taken a decision on a vote on the principle of Schedule 4, it is probably not appropriate to divide the Committee, but that was an unsatisfactory answer to an unsatisfactory amendment.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 225, 226 and 227: Page 92, line 8, leave out ("For paragraph 9(1)") and insert (" (1) In paragraph 9 for sub-paragraph (1)"). Page 92, line 14, at end insert: ("(2) In sub-paragraph (3) of that paragraph for "consider modifying" there is substituted "modify"."). Page 92, line 29, leave out ("13(2)(e)") and insert ("13(2)— (a) after paragraph (b) there is inserted— (bb) make provision with respect to the circumstances in which representations with respect to the matters to be included in such a scheme or proposals for its alteration are to be treated, for the purposes of this Schedule, as being objections made in accordance with regulations;" and (b) in paragraph (e)").

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

Clause 41 [Power to remove or obliterate placards and posters]:

Lord Fraser of Carmyllie moved Amendment No. 228: Page 51, line 32, at end insert: ("(6) Any person duly authorised in writing by the planning authority may at any reasonable time enter any land for the purpose of exercising a power conferred by this section if—

1. (a) the land is unoccupied; and
2. (b) it would be impossible to exercise the power without entering the land.").

The noble and learned Lord said: Amendment No. 228 is necessary because of the deletion of Clause 36 where an equivalent provision was originally located. I beg to move.

On Question, amendment agreed to.

Clause 41, as amended, agreed to.

Lord Fraser of Carmyllie moved Amendment No. 229: After Clause 41, insert the following new clause:

Listed buildings, conservation areas and hazardous

substances

(". Schedule (listed buildings, conservation areas and hazardous substances: Scotland) to this Act, which makes amendments to the 1972 Act in respect of listed buildings, conservation areas and hazardous substances, shall have effect.").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 229A: After Clause 41, insert the following new clause:

Simplified planning zones

(".Schedule (Simplified planning zones -Scotland) to this Act which—

1. (a) modifies the procedure for making simplified planning zones, and
2. (b) makes minor and consequential amendments to Schedule 6A to the 1972 Act,

shall have effect.").

On Question, amendment agreed to.

Clause 24 [Orders as to costs where right to be heard exercised]:

The Chairman of Committees

If Amendment No. 230 is agreed to, I cannot call Amendment No. 231.

Lord McIntosh of Haringey moved Amendment No. 230: Page 30, leave out lines 9 to 14 and insert: ("; and (c) the development the subject of the decision is a minor development. (2) Such an order shall specify that the costs incurred by the party teat requested a local inquiry or hearing shall exclude those costs relating to the preparation for and conduct of the inquiry which would not have been incurred had the case been resolved by written representations if—

1. (a) a local inquiry or a hearing is held at the request of either the person concerned or the local planning authority; and
2. (b) the other principal party has expressed in writing a desire for the case to be decided by written representations rather than a local inquiry or hearing; and
3. (c) an order is made under subsection (1) in favour of the party that requested a local inquiry or hearing." ").

The noble Lord said: I should like to speak also to Amendments Nos. 230 and 233. I wonder whether the noble Lord, Lord Stanley, might feel it appropriate if we were to deal with Amendment No. 231 at the same time ince his amendment could not be moved if Amendment No. 230 was carried. All the amendments relate to the same subject, as does the Motion in the names of the noble Earl, Lord Lytton, and the noble Lord, Lord Coleraine, who intend to oppose the Question that Clause 24 stand part of the Bill. Although there will inevitably be a second debate on that matter, it may well be that it could be curtailed if we were to deal in one debate with the principle of Clause 24 as well as the amendments. Clause 24 relates to costs where someone who has the right to insist upon a public inquiry does so and, in the words of Clause 24, does so "unreasonably".

We have had the benefit of a press release and a lengthy consultation document from the Department of the Environment published on 11th January. I am sure that all Members of the Committee have read every word of that press release and consultation document with devout attention. It is clearly a difficult matter. On the one hand, there is the problem that public inquiries are time-consuming and expensive and detract from the ability of the planning process to achieve justice quickly. On the other hand, there are the rights of those who wish, and need, to participate in planning inquiries and who should not feel inhibited from demanding a public inquiry.

Some people for whom I have a lot of respect feel that the principle of ordering costs against those who insist unreasonably on a planning inquiry is wrong. I refer in particular to Justice, the British section of the International Commission of Jurists, whose views on most matters I respect profoundly. I understand that a number of professional organisations also take that view, and I suppose that that is the view behind the proposal that Clause 24 should not stand part of the Bill.

I have to say from the outset that our approach is to seek to amend Clause 24 rather than to take it out of the Bill. We shall seek to propose and to argue for our amendments, but whether or not the clause is amended I do not think we shall be following into the Division Lobby those who wish to take out Clause 24 as a whole. I shall deal with the individual amendments and try to avoid casting more gloom on the already complex subject of orders as to costs.

Amendments Nos. 230 and 233 seek to limit the scope of Clause 24 to cases of minor development. Amendment No. 230 specifies the conditions under which a decision about a minor development shall be taken at a local inquiry and the way in which costs shall be provided for. Amendment No. 233 adopts as a definition of "minor development" the same terms as those used by the Chief Planning Inspector to distinguish categories of minor developments and major developments in his annual report. I am not aware that there has ever been any difficulty about that distinction. I suggest that it is useful to try to ensure that in imposing the conditions of Clause 24 they should be restricted to those developments which are necessary. I stress that it is not our intention in moving Amendments Nos. 230 and 233 to rescind the clause as a whole. Some people have formed that view, but these are not intended to be wrecking amendments.

We are looking for the achievement of a rule that a party which insists on an inquiry can claim only for the costs that would have been incurred if the matter had been dealt with by written representations. It will be seen by looking at the annual report of the Chief Planning Inspector that it is relatively rare for decisions to be issued by the Secretary of State contrary to the inspector's recommendations and that 90 per cent. of appeals are in the minor category and 10 per cent. only in the major category. So Amendments Nos. 230 and 233 are relatively modest and I hope will find approval with the Government and with the Committee.

Amendment No. 232 is perhaps even more modest. It deals with the specific case of an appeal or grounds of refusal being withdrawn late in the planning appeal process but before the actual inquiry takes place. At present, subsection (3) of Clause 24 deals with withdrawal of an appeal by a prospective developer and refers to the case of a local inquiry being cancelled. Subsection (4) deals with the withdrawal of grounds of refusal and does not refer to whether the inquiry was cancelled.

It could be that Clause 24 means that "the person concerned" includes a local planning authority. We have the curious fact that the word "person" in legislation does not mean what it means in real life. Just as the Secretary of State is always called "he", so even a local planning authority or a company can be called "the person". This seems as remote from everyday speech as some of the alternatives which I have proposed to the way in which we address the Secretary of State.

Lord Renton

It might interest the noble Lord and other noble Lords to know that in law a person is not necessarily human.

Lord McIntosh of Haringey

The noble Lord has expressed much more concisely and vividly what I was trying to say in my roundabout way. The point behind Amendment No. 232 is still valid. In this amendment we are trying to allow the reimbursement of abortive expenditure incurred either by the local planning authority or by the developers when the other side, at a late stage but before the opening of the inquiry, causes the cancellation of an inquiry or hearing. As we understand it, the present situation is that costs can be reimbursed only if the inquiry has been opened. We are seeking to secure that they can be reimbursed if the process of the public inquiry is aborted before it actually opens. This seems to be a relatively non-controversial matter and I very much hope that it will find favour with the Government even if our other amendments do not.

Amendment No. 231 in the name of the noble Lord, Lord Stanley, would seek to replace the word "unreasonable" by "vexatious". I am very fond of the word "vexatious", which rolls round the tongue beautifully, but I am impressed by the detail into which the Government have gone in describing the definitions that there could be of unreasonable behaviour. I was forcibly struck by the fact that the first example they gave of unreasonable behaviour was that of multiple applications or duplicate applications, with which we have dealt in earlier consideration of the Bill, where a new application is the same or substantially the same as the previous one. Here it is being said that there could be costs against an applicant who insists on a public inquiry for an application which is the same or substantially the same as a previous one. That is the clearest and most dramatic example, but in the Department of the Environment's consultation paper there are other examples of unreasonable applications and unreasonable insistence on a public inquiry. This makes me feel that on balance it is better to seek to amend Clause 24 in the way we have proposed rather than to take it out as a whole. I beg to move.

Lord Stanley of Alderley

I think it would be for the convenience of the Committee if I speak to Amendment No. 231. In doing so, I have to say that I very much dislike the whole clause, and considerably more than the noble Lord, Lord McIntosh, disliked it. I should prefer to follow the advice given to a young guardsman: "If it moves, shoot it; if it doesn't, paint it". I should prefer to paint out the whole clause.

The threat of costs is bound to deter some applicants from exercising their right to be heard. Such a right should be available to all because applicants should have the opportunity to cross-examine local planning officers on how they have applied planning policy. That is not possible in the case of written representations. Certain applicants find it easier to present their case in person rather than in writing, in particular those who are unfamiliar with the planning system, which is highly complex, or who cannot afford professional representation. Many people, particularly the small and relatively inarticulate applicant, do not express themselves well on paper.

The choice of how to appeal has a significant influence on the chances of success. I believe the department's figures show that an appeal is statistically more likely to succeed if the applicant opts for an informal hearing. His chances are even further improved if he appeals by way of a public inquiry. The Government's consultation paper states that it may be unreasonable for applicants in "minor" applications to exercise their right to be heard. However, that statement ignores the definition of "minor". For a council house dweller a small garden shed is no more minor than, say, a new orangery for a Member of the Committee. It is difficult to define "minor". I see that the noble Lord, Lord McIntosh of Haringey, is puzzled. I shall explain what I mean to him afterwards. Seriously, it is difficult to define what different people mean by the term "minor". All things in life are relative.

As I have said, I dislike the clause intensely. However, if the Government insist on retaining it, I suggest that they accept my Amendment No. 231, which would allow costs to be awarded only if the applicant had acted vexatiously. I do not intend to define "unreasonable". I believe the noble Lord the Chief Whip could better define that word. However, there is a precedent for the use of "vexatiously" in Section 5 of the Agriculture (Miscellaneous Provisions) Act 1954.

4.30 p.m.

Lord Renton

I have only one comment to make about this whole matter, including the contents of Clause 24 which is that the costs will be awarded at the discretion of the Secretary of State or the inspector holding the inquiry. They do not follow the event. Therefore in cases of hardship a discretion can be exercisx1 not to award costs at all. One should bear that in mind.

Perhaps another factor to bear in mind is that until about 30 years ago the only judicial or quasi-judicial tribunals in whose jurisdiction costs could be awarded at all were the ordinary courts of law from the House of Lords' Judicial Committee right down to the magistrates' courts. There was a wide power to award costs throughout those courts. But the extension of costs to tribunals of one kind and another is something which has gained momentum over recent years, and rightly so in my opinion. Otherwise people would not have the opportunity of taking advantage of the rights which Parliament has given in Acts of Parliament.

This question of the award of costs works both ways as a rule. However, there is one instance in this clause where it will not work both ways and it goes against the individual. That is the point which my noble friend Lord Stanley of Alderley quite rightly has in mind and to which he has drawn the attention of the Committee. We should realise that the provision is discretionary and that that is in the interests of justice in a broader sense.

Lord McIntosh of Haringey

I am always interested in what the noble Lord says about the development of the law and legal practice. He has already told us that a person need not be human. Is he now telling us that a Secretary of State need not be human?

Lord Renton

No, I am saying nothing of the kind.

Lord Ross of Newport

I was rather reassured by the Government's paper on this matter which I believe was issued about two or three weeks ago. I remember conducting a planning appeal for a client whose next door neighbour was a deputy clerk of the county council concerned with the appeal. Halfway through the proceedings he walked through the door and demanded to give evidence. He also demanded costs. That frightened me to death. We had a perfectly valid planning appeal but just because the deputy clerk lived next door to the applicant and was a legal luminary, he put the idea into the mind of the inspector that the case should be found against us and that costs should be awarded against us. That factor worried me intensely, although, fortunately, costs were not awarded against us.

I like the term "vexatious". I have also sat on agricultural tribunals. At one hearing a landlord was trying to impose an enormous rental increase on a tenant. The landlord was totally out of court and the whole thing fell apart at the arbitration stage. That landlord should have had costs awarded against him as he was vexatious. The term covers that situation precisely. I feel strongly that we should write the word into the Bill. I do not believe the Government have any evil intent in mind as regards this matter. I believe there is a case for costs, as I have said in earlier debates on the Bill. However, this is a tricky area where things can easily go wrong.

Lord Norrie

I wish to support Amendments Nos. 230 and 232. I support Amendment No. 230 because it does not intimidate developers wanting to exercise their right to be heard. I also support Amendment No. 232 because it is a thoroughly reasonable measure to prevent worthless appeals. It will prevent developers wasting the time and money of local authorities and—this is just as important—of bodies such as the Nature Conservancy Council or even parish councils. There is a slender chance that it may also apply to late withdrawals by local authorities. At present amenity and conservation bodies can spend hours raising precious fighting funds, and can waste thousands of pounds on expert advice, and then lose it all if an appeal is withdrawn before the public inquiry opens. That cannot be right.

Lord Coleraine

I was interested to hear the explanation given by the noble Lord, Lord McIntosh, of his Amendment No. 230. If I understood him correctly, he said that the small man who is perhaps appealing against the refusal of permission to erect one house should be subject to the cost regime, but that the large developer developing a large estate will be treated on a different basis. Those remarks surprise me coming from the Benches opposite. It is particularly important that a small man should feel that he has been fairly treated when he makes an appeal. From my limited experience of planning appeals I feel that the value of a hearing lies in the fact that an inspector should go out of his way to understand what the appellant is saying and should make it quite clear that he understands. If that is done, the appellant, even if he loses his case, will come away with a strong sense of having been treated fairly. However, he will not feel he has been treated fairly if he has to proceed by the written representations procedure. We must start off with a strong predilection in favour of the oral hearing for the small applicant.

Amendment No. 230 suggests separating unnecessary costs, which would not have been incurred if the written representations procedure had been followed, from those which would have been incurred in any event if the written representations procedure had been followed. The matter of costs is a most difficult part of the planning procedure, as one is sent to the courts to settle costs after everything else is over. Costs take a long time to be settled. The advice I have received from the Law Society is that it would be difficult to separate costs in the way that the noble Lord's amendment seeks to do. I hope, on reflection, he will consider there was some merit in suggesting that the whole clause should be taken away.

My noble friend's amendment suggests that "vexatious" should replace "unreasonable". I believe that "vexatious" has no real meaning in this context. Appeals may be conducted vexatiously as well as unreasonably. In such cases there are already powers to award costs. However, I very much doubt whether there is any meaning in suggesting that the decision to go to oral hearing rather than making written representation is one that is taken vexatiously. If there is any meaning in it I very much doubt whether it would ever apply. I hope that my noble friend will be even more persuaded that the clause should be taken out of the Bill altogether.

The Law Society considers the right of appeal by way of a hearing to be of fundamental importance to anyone involved in the planning process. I do not argue that appeals should be conducted vexatiously, unreasonably or improperly. The existing cost regime already covers that aspect. However, I submit that the right of the applicant to a hearing before an inspector should not be fettered in any way by the possibility that his choice of method of obtaining his hearing may of itself result in his being ordered to pay the planning authority's costs. That could occur irrespective of the merits of the appeal or whether the appeal has been conducted reasonably.

Behind the proposed change in procedure is a desire to cut down the number of planning hearings and inquiries. The department makes that clear both by its words and by its deeds. It does so by its words because the consultation paper speaks of bringing greater discipline to appeal proceedings and of instilling a greater awareness of the resource implications of holding a public inquiry or public hearing. Those are described in the consultation paper as the main purposes of Clause 24.

It is clear from its deeds that that is what the department intends because I am advised that it is not necessary to introduce Clause 24 in order to bring about change. The possibility of costs being awarded on that ground already exists in statute. I am advised that all that is necessary is to delete paragraph 24 of departmental Circular 2/87 which deals with costs in relation to planning appeals. The paragraph provides that costs will not now be awarded simply because one of the parties to an appeal has asked for a hearing.

The effect of Clause 24 is insidious because it throws particular emphasis on the aspect of costs. It is bound to have the effect of frightening potential appellants and deterring them from appealing by way of oral hearing.

In the interests of natural justice, as paragraph 11 of the consultation paper puts it, the department is to introduce an early warning system. The department will send early warning letters to make clear to each applicant who asks for an oral hearing that he runs the risk of an award of costs. It is right that appellants should be aware that they run the risk of an award of costs, but that they should be specifically warned of that risk in a letter which can only be termed a "frightener" is hardly conducive to the broader interests of natural justice. It is invidious that Clause 24 is itself against the interests of natural justice because it reduces the rights of appellants to pursue their right to an appeal.

There are other objections which can be made to the proposal. First, there is often no way of knowing until the appeal has been decided whether or not it was reasonable for there to have been an oral hearing. Secondly, a successful applicant will run the risk of an order for costs if it is found that he could have been as successful if he had relied on written representation. That is neither fair nor reasonable.

I hope that the noble Lord, Lord McIntosh, will consider that the clause needs further consideration than is provided by his amendments.

Lord Wade of Chorlton

I should like to support my noble friend Lord Coleraine on this issue. Although no one wishes more than I do to see the planning process speeded up, I believe that it would be very wrong to take away the rights of those who do not have resources. As my noble friend so rightly said, the effect would be to frighten away those who ought to have as much opportunity as anyone else to make their views known. Therefore I hope that on this issue the Government will consider very seriously the points raised by my noble friend and look at the matter again.

4.45 p.m.

The Earl of Lytton

I have given notice that I intend to oppose the Motion that Clause 24 stand part of the Bill. It may be for the convenience of the Committee if I speak to that point now rather than later bearing in mind what has been said and the ground that has been covered.

I should like to assure the noble Lord, Lord McIntosh, that it is not my intention on this clause to stir him from his seat. He will be able to sit quietly and listen without the threat of my dividing the Committee. That is not my intention. I am interested only in hearing the Government's reasoned response or persuading them that there is no reasoned response that they can give.

There is no doubt in my mind that Clause 24 as currently drafted represents a threat in the sense that the test of reasonableness or unreasonableness is highly subjective and may not be apparent until an appeal has been dealt with. That is an impossible position in which to place an appellant. He needs to have some idea of where he will stand.

As already mentioned, the right to explain oneself to the best of one's ability and to make the best case is an integral part of natural justice. The facility to examine and cross-examine the parties to an appeal is a very significant factor in adducing relevant information.

The DoE's own Circular 2/87 states that, costs will not be awarded simply because one of the parties to an appeal has asked for an oral hearing. The exercise of that right will not be regarded as unreasonable conduct even if the appeal could have been adequately dealt with by written representation". Obviously something has happened to change the Government's view. Clause 24 represents a very significant departure from that statement. The passage of time since the publication of the circular is not sufficient for those circumstances to have been totally altered.

It is not for me to say whether the question of grossly unreasonable behaviour—or vexatious behaviour, as suggested by the noble Lord, Lord Stanley—is an appropriate alternative. However, it is my understanding that there is already provision for costs to be awarded against an unreasonable appellant. Those powers are rarely used, possibly because of the difficulty of interpretation. It would be more appropriate to adapt the existing powers rather than to introduce another provision such as that provided by Clause 24 of the Bill, which will be a clear disincentive to an appellant.

Many appellants are ordinary people. They may be householders; they may be responsible for small businesses. In broader national terms or in terms of major developments their affairs may not be considered particularly important. However, to the appellants themselves they are of crucial importance, as the noble Lord, Lord Stanley, pointed out. The clause acts as a significant deterrent to the perfectly legitimate pursuit of their aims and objectives.

It cannot have escaped the attention of the Committee—I am sure many Members have greater knowledge of this than I —that the chances of winning an appeal at an oral hearing are considerably greater statistically than when written representations are relied on. This is probably due to several contradictory factors. But I think that when people elect to have a formal hearing they do not do so frivolously because, if nothing else, they have to bear their own costs. Unless there is an award of costs in their favour they will be saddled with their own costs. Those costs can be very significant in terms of the professional fees and everything else which may be involved. In case the noble Lord, Lord McIntosh, should pick me up on this, I can safely say that I do not have to declare an interest because I do not get involved directly with planning appeals, although I advise people professionally on planning matters.

I consider there are areas in which Clause 24 is fatally flawed, because it militates against the principles of natural justice and fair dealing, and this Chamber has always been known for protecting those principles. Because of its deterrent nature I believe that the Committee cannot accept that this clause shall stand part of the Bill.

The noble Lord, Lord Coleraine, made the point that there appears to be no provision for the automatic exoneration from costs of the successful appellant. An individual may elect to go to appeal and to have the matter dealt with by formal hearing because he has received an adverse decision from the local planning authority and feels that the only way of getting at the reasons behind the decision is by means of a formal hearing so that the planning officer and others can be examined on the nature of the planning authority's policy. If he is successful in his appeal, how can one square the decision that in planning terms his case was justified with the possibility that costs may ultimately be awarded against him? That is simply not acceptable. I must press the Minister strongly on this point. If believe Clause 24 is not a proper provision. There are provisions elsewhere in legislation which should be used, not the present Bill.

Baroness Blatch

The amendments of the noble Lord, Lord McIntosh (Nos. 230, 232 and 233) would make substantive changes to the new Section 322A. First, by adding a new paragraph (c) in Section 322A(1), Amendment No. 230 would restrict the exercise of the Secretary of State's power to award costs it those cases involving what is termed "minor development" as that expression is used in the Chief Planning Inspector's report. Secondly, it would remove the discretion currently in Clause 24 to award costs where the party's request to be heard was regarded as unreasonable. This power would be replaced by provisions which would restrict the amount of costs which could be awarded to a party who asked to be heard when the other party would have preferred the written representations procedure. The amount of costs would be limited by excluding the preparation and inquiry costs of the inquiry which the party would have incurred by being heard instead of using the written representations procedure.

Amendment No. 232 would provide (by subsection (3)) a power to award costs where a local inquiry was cancelled by the appellant after notification had been given of its scheduled starting date. This would be complemented by a power (in subsection (4)) to require the local planning authority which withdrew a ground of refusal of planning permission after notification has been given of the opening date of the inquiry to pay the other appeal party's preparation costs as regards contesting that ground of refusal.

We recognise that these amendments are based on recommendations in the National Housing and Town Planning Council's recently published report entitled Costs Awards at Planning Appeals. We have studied the report and considered the amendments very carefully.

We appreciate that the purpose of paragraphs (a), (b) and (c) in the proposed subsection (2) is to limit an award of costs in inquiry cases where the party against whom costs are awarded did not wish an inquiry to be held. At first sight, this may appear acceptable, but it begs the question which Clause 24 seeks to address—namely, whether the request to be heard was reasonable. We also think that the proposed restriction of this new power to cases involving only minor development is undesirable on the grounds of policy. While we accept that major development often involves complex issues which should be examined at an inquiry, it may sometimes turn on straightforward planning grounds, or it may even have been the subject of a previous local inquiry.

In those circumstances, we think that the exercise of the proposed new power when a principal appeal party requests to be heard should not depend on the scale of the development. Since other parties in a major inquiry may have had to incur very substantial expenditure as a result of one party's unreasonable insistence on being heard, we feel that this part of the amendment cannot be justified on policy grounds. Indeed, the power might be especially apt in a major inquiry. I therefore hope that the noble Lord may agree not to pursue this part of the amendment and the associated definition of "minor development" in the proposed subsection (4).

The second part of Amendment No. 230 would leave out subsection (2) of the new Section 322A(2) so that the Secretary of State would not be enabled to award costs in cases where he considered, at the conclusion of the proceedings, that a party's request to be heard was unreasonable. In its place, Amendment No. 230 would effectively impose a statutory limitation on the quantum (or amount) of awardable costs in specified circumstances. The amendment no longer provides for an award of costs to be made simply for unreasonably requesting to be heard as Clause 24 proposes. Because the amendment would completely alter the purpose of the clause, we cannot accept it.

Amendment No. 232 would insert new subsections (3) and (4) into new Section 322A. These would provide for an award of preparation and inquiry costs in the event of an inquiry's cancellation, or abortive work caused by late withdrawal of an appeal or grounds of refusal. We understand the reason for these amendments. It is right that appeal parties who are found to have caused others to incur unnecessary expense in preparing for cancelled inquiries (as a result of late withdrawal of the appeal), or inquiries curtailed in scope (because of late revision of evidence), should have to pay those abortive costs. But we should like an opportunity to consider more thoroughly the drafting and substance of subsections (3) and (4). For instance, they take no account of inquiries necessarily cancelled without any specific request or action by the person concerned because the planning authority has withdrawn an enforcement notice, or an advertisement discontinuance notice, which leaves no appeal issues to be determined. If these problems can be satisfactorily resolved we may be able to table an amendment acceptable to the noble Lord at a later stage of the Bill. On this understanding, I hope the noble Lord will not press his amendment.

The amendment of my noble friend Lord Stanley (No. 231), would effectively restrict the scope for awarding costs in accordance with the new Section 322A to those cases where a party's insistence on being heard was considered vexatious rather than unreasonable. A narrower test of unreasonableness in this context goes wider, as can be seen from the current policy guidance in my department's Circular 2/87. To narrow the scope of new Section 322A in this way runs counter to the Government's aim in introducing these provisions, which is to instil a greater sense of discipline in planning proceedings by extending the criteria of reasonableness to requests to be heard.

Much has been said about the "What's in a word?" syndrome, as I would like to call it, in relation to "unreasonable", "vexatious" or whatever. I welcome the remarks made by the noble Lord, Lord McIntosh, who described how difficult it was to find an appropriate definition in these circumstances. I understand that before DoE Circular 2/87 was issued the relevant policy statement (in Ministry of Housing and Local Government Circular 73/65) referred to circumstances where a party behaves unreasonably, vexatiously or frivolously. In 1987 the view was taken, in revising the policy guidance in the earlier circular, that vexatious or frivolous conduct might also be unreasonable. Consequently, the term unreasonable was regarded as sufficient in this context. We are very reluctant to revert to the previous criterion, which has now been effectively superseded.

The basis on which we propose to exercise this new power has been set out in a DoE and Welsh Office consultation paper issued on 11th January 1991. I welcome the comments of the noble Lord, Lord Ross, about that consultation paper. A copy of the paper has been placed in the Library of the House.

Examples of unreasonable insistence on the right to be heard are given in that paper. These examples will help to make clear why we do not consider it appropriate to restrict the circumstances in which the power may be exercised only to those cases which could be defined as "vexatious" rather than to the wider range of cases which are considered "unreasonable".

I understand the reservations that have been expressed about Clause 24. First it is said that many appellants who legitimately want an inquiry into their appeal will be deterred by the threat of costs from asking for one. We accept that the majority of people who ask for an inquiry are justified in their request. We are not concerned in this clause with the reasonably minded majority. If this clause is enacted, we would make it absolutely clear in publicly stated policy guidance that the provisions are not a deterrent and will not be used as such. We have already given a clear indication in my department's consultation paper issued on 11th January of how the proposed new discretionary power would be exercised. We shall consider the comments from the wide range of organisations that are now being consulted.

Lord Stanley of Alderley

My noble friend has lost me completely. If she says that in the consultation paper they will make it quite clear that this clause is not there as a deterrent, what is the point of having the clause?

5 p.m.

Baroness Blatch

The point of having the clause is that in rare cases behaviour is unreasonable, vexatious or frivolous. It is a long stop to make sure that those cases are addressed. I emphasise our concern not to put any inexperienced or unrepresented appellants at a disadvantage when an inquiry or hearing is plainly justified for their appeal, not least in enforcement appeals.

The concerns expressed by all Members of the Committee in the course of the debate reflect similar concerns expressed by the Council on Tribunals, the Local Government and Planning Bar Association and the Law Society. We recognise that these are serious concerns which cannot simply be brushed aside. Therefore they must be addressed. To put it very simply, they consider that someone who believes that his case cannot be properly expressed without an inquiry or hearing must never be deterred from asking to be heard by any threat of a costs award. They have argued their case against the clause eloquently and sympathetically.

I should like to take the opportunity between now and Report stage of the Bill to consider most carefully in consultation with my ministerial colleagues all that has been said during the debate on this clause. I should also like to look again at the written submissions which the Council on Tribunals and the organisations representing the legal professions have made to me and my ministerial colleagues. I undertake to come back at Report stage with a fully considered reply about the Government's intentions for this clause.

In the light of that promised consideration between now and Report stage, I hope that the amendments will not be pressed and that the Committee will allow this clause to stand part of the Bill.

Lord McIntosh of Haringey

We have had a most constructive and thoughtful debate on this clause and these amendments. I am particularly grateful to those noble Lords who pointed out the flaws in the thinking as well as the drafting in my Amendments Nos. 230 and 232. Certainly I should not have wished—the noble Lord, Lord Coleraine, recognised this—to discriminate against small applicants for the sake of doing so. I was concerned to reduce the number of occasions on which a quite unnecessary inquiry is undertaken—unnecessary because the subject matter itself is so straightforward.

Paragraph 9 of the consultation paper of January this year makes that clear. Apart from the duplicate applications, the examples that it gives include those where there is a relatively minor material change of use, where there is no appeal on legal grounds or planning policy, where there is little third party interest and where the appellant is professionally represented. Under those circumstances I think that I was probably ill advised to go in for the concept of a minor application as opposed to the more useful definitions which the department put forward in its consultation paper. On these Benches we all have our own orangeries, so we shall certainly not agree that an orangery is a minor application; no more would I agree that my wife's hat in her garden shed on her allotment is a major application. That points to the difficulty that lies in making a distinction of that kind.

I shall beg leave to withdraw Amendments Nos. 230 and 233 without any qualms and certainly I do not propose to come back to them in that form. I am grateful to the Minister for what she said about Amendment No. 232, which received a friendly reception from her. I accept that there could be drafting implications and I should be pleased to discuss them with her before the next stage of the Bill. I believe that we could come forward with a form of words which would meet our requirements and those of the Government and which could make a significant improvement to the Bill. However, I revert to the conclusion to which I came at the beginning; namely, that on balance Clause 24 certainly deserves further consideration, but not further consideration by being taken out of the Bill at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Stanley of Alderley moved Amendment No. 231: Page 30, line 14, leave out ("unreasonable") and insert ("vexatious").

The noble Lord said: I should just like to add that I am advised that the word "vexatious" in this context is used to mean that someone is abusing the procedures of the tribunal regardless of the merits of his case. I hope that that clears the point certainly for my noble friend on the Front Bench, if not for me. As it does not clear the matter for me, I should prefer to remove the clause.

Lord Renton

I am sure that we are grateful to my noble friend Lord Stanley for the precision with which he has enlightened us about the meaning of the word "vexatious". However, I should point out—it is relevant in the context of this clause—that "vexatious" has a very much narrower effect than "unreasonable". The Minister wants it to have a narrower effect, but I think that we should be conscious of that fact.

Lord Stanley of Alderley

Of course I am conscious of that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 232 and 233 not moved.]

On Question, Whether Clause 24 shall stand part of the Bill?

The Earl of Lytton

I have already spoken to this matter. There is nothing further for me to add other than to thank the Minister for the sympathetic way in which she usually answers the questions that have been raised. My concern remains. There is not very much that can be done with Clause 24 to rectify it. The basic injustice will remain. Clearly it would be churlish of me not to accept her offer to reconsider this matter and come back with further proposals later in the Bill. I look forward to seeing them when she has been able to produce them.

Clause 24 agreed to.

Baroness Nicol moved Amendment No. 234: After Clause 24, insert the following new clause:

("General environmental duties

.—Before section 326 of the principal Act there is inserted—

"General environmental duties.

325A.—(1) It shall be the duty of a local planning authority in formulating or considering any proposals relating to its functions under this Act—

1. (a) so to exercise its powers in relations to such proposals as to further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest;
2. (b) to have regard to the desirability of protecting and conserving buildings, sites and objects of archaeological, architectural or historic interest; and
3. (c) to take into account any effect which the proposals would have on the beauty or amenity of any rural or urban area or on any such flora, fauna, features, buildings, sites or objects.

(2) In this section "building" includes a structure." ").

The noble Baroness said: In moving this amendment, with the permission of the Committee I shall speak also to Amendment No. 235 to which my name is added. Both the amendments have the same purpose: namely, to place a statutory duty on the Secretary of State and planning authorities to further conservation and amenity. In both cases that includes historic buildings, archaeological sites and so on. In the case of Amendment No. 235, in addition we should place a duty to further the conservation of energy and natural resources.

The general statutory duty of furthering conservation and amenity would bring local authorities into line with other bodies on which such a duty is laid; for instance, the Forestry Commission in the Wildlife and Countryside (Amendment) Act 1985, the National Rivers Authority in the Water Act 1989, British Coal and private opencast companies in the Electricity Act 1989 and agricultural departments in the Agriculture Act 1986. There are other examples, but I shall not give them.

Under Section 11 of the Countryside Act 1968 and Section 66 of the Countryside (Scotland) Act 1967, local authorities are required to: have regard to the desirability of conserving the … countryside". But that is a weak and ineffective provision. It needs strengthening to meet the greater pressures that exist in 1990.

In our debate on Amendment No. 104 we drew attention to the damage that has been caused to important conservation sites by activities which had planning permission. I shall not repeat the evidence. Many local authorities accept their responsibilities and ensure that sensitive sites are protected. However, many do not, and therefore it is time to impose a mandatory duty to ensure a basic standard of care in line with that already placed on other land use agencies.

The wording of Amendment No. 235 is stronger than that in Amendment No. 234. It requires local authorities to include conditions to mitigate the effects of any authorised processes. That might be a useful requirement. The energy conservation requirement in Amendment No. 235 is consistent with the stand that the Government took in their White Paper. Paragraph 634 states: The Government has already asked local authorities to have particular regard to the conservation of energy as an issue in development plans". The amendment would place that duty firmly where it belongs.

The Government may not be happy with the wording of either amendment. However, in view of the sympathetic response that I received to Amendment No. 150, I hope that the Minister will accept the principle of this amendment. I beg to move.

Lord Norrie

I shall speak to Amendment No. 235. It is unfortunate that this crucial amendment is being dealt with so late in the Committee stage of the Bill. The environment should provide a context within which the whole planning system is conducted. The amendment places a duty on local planning authorities and the Secretary of State to take into account the impact of structure, local plans and planning applications on the countryside, wildlife, amenity and heritage, and to ensure that those interests are furthered and not damaged. As the Committee has heard from the noble Baroness, Lady Nicol, similar duties apply in at least five other Acts concerning the countryside, agriculture, coal, water and electricity.

The amendment also places a duty on local planning authorities to plan for the conservation of energy and natural resources, such as minerals or water, and to ensure that any grant of planning permission has conditions to minimise the use of energy and other resources. If the planning Bill is to be shaped to meet the new environmental challenges of the 1990s, we must have placed on the face of the Bill a duty to conserve natural resources. This amendment would provide a visible response to widespread public anxiety for the environment. Although planning is one of our key environmental policies the word "environment" does not appear in the legislation.

The amendment would set limits on the nature and scale of change at the level beyond which irretrievable natural resources would be damaged. These limits would be translated into development plan policies and decisions on planning applications and appeals. In essence, the amendment places a duty of stewardship on the local authorities and the Secretary of State. That duty lies at the heart of the recent environment White Paper. I hope that we can see it placed at the centre of the planning system which, after all, is one of the most important ways of implementing environmental policy.

Decisions made by the planning system have a major influence on the amount of energy that we use or the volume of minerals that we consume. Choices about the scale and location of new housing, employment and roads will influence the amount of driving that we shall do, the amount of energy that we shall use to heat our homes and offices, and the types of industries that will be established. Therefore, the way in which we plan new development has a strong bearing on the way in which we use natural resources.

The amendment would place an environmental duty on the authorities in making such important choices. However, it would not put the environment above economic and other anxieties. I wish to assure the Committee about that issue. Planning decisions are already made within an economic framework and the amendment would merely put the environment on a par with economic and other anxieties. At present the Government offer virtually no advice on the way in which local planning authorities should help in the conservation of energy and other resources. I hope that Amendment No. 235 will rectify that situation.

5.15 p.m.

Lord Howie of Troon

I support Amendments Nos. 234 and 235 but I must quibble about them. We have debated amendments of this nature on a number of occasions. On each occasion I argued that it was inadequate to use the words: archaeological, architectural or historical interest", as in subsection (b) of new clause 325A proposed in the amendment. I have argued that we should insert the word "engineering" after the word "architectural". Certain artefacts are principally of engineering interest rather than of architectural or historical interest. They are, nonetheless, important and worthy of preservation.

It was as a result of such previous debates that "building" became defined to include the structure. I am pleased that the locution has survived in subsection (2) of Amendment No. 234. However, it is too obscure a locution for simple engineers to follow. They would better understand the situation if the word "engineering" appeared in addition to "architectural" on the fact of the Bill.

I wish to give two brief examples. The first is the iron bridge at Ironbridge. It is a structure and is clearly included in subsection (2) of the amendment. It is of historic interest. Some people might argue that it is of architectural interest—I would not—but most certainly it is of engineering interest for reasons which are not historic nor architectural. Members of the Committee will recall that the iron bridge is a semi-circular arch made of cast iron. Incidentally, it is an unsuitable form for the bridge and it is surprising that it has lasted for so long. The reason is that it has been propped horizontally at the base with reinforced concrete. The point of engineering interest about the bridge is that, structurally, it is a timber-design bridge made of cast iron. Its designer designed a timber bridge and then used cast iron to build it. Therefore, the interest in the bridge is engineering rather than historic or architectural.

I wish to mention two other artefacts also at Ironbridge. There are two beam engines which are, in a sense, historic —if that word means merely that they are old. They are certainly old. I do not believe that there is anything particularly historic about them. The interest in those beam engines is not that they are old but that they are beam engines. They are of engineering rather than historical interest.

I shall not pursue the matter further. I hope that the Government can accept these two amendments in some form. Perhaps they should be cannibalised together. I also hope that the word "engineering" will be slipped in adjacent to the word "architectural". If so, I promise that I shall not raise this matter again.

Lord Montagu of Beaulieu

It may be of interest to the noble Lord that English Heritage covers industrial archaeology. Indeed it recently gave evidence in a planning inquiry which involved the iron bridge. The appeal as regards the building of a new bridge was dismissed by the Secretary of State. I assure the noble Lord that where archaeology is written in, we believe that that includes industrial archaeology.

Lord Howie of Troon

I am grateful to the noble Lord but I am not satisfied with that. I want the inclusion of the word "engineering" because the interest is an engineering interest and not to do with industrial archaeology, worthy though that is.

Lord Renton

I hope that the noble Lord, Lord Howie of Troon, will forgive me if I do not follow him on his rather specialised point on this very important pair of amendments.

To my mind, Amendment No. 235 is the most important amendment tabled to this Bill. With great respect to the noble Lord, Lord McIntosh, in whose name the other amendment stands, I prefer Amendment No. 235 because Amendment No. 234 merely places a duty upon the local planning authorities whereas Amendment No. 235 also places a duty upon the Secretary of State.

It so happens that there are eight precedents in overlapping branches of the law intended to protect the environment in one way or another in which the Secretary of State or another Minister has had that duty imposed upon him. Therefore, if we wish to follow the precedents, we should accept Amendment No. 235 because that places a duty upon the Secretary of State.

After all, the Secretary of State is publicly committed to protecting the environment. As we are dealing with his duties in relation to planning law, surely it is right that we should make it clear that it is the intention of Parliament that, like the local authorities in performing their functions, the Secretary of State should further the conservation and enhancement of natural beauty and the conservation of those various other matters mentioned.

I hope it will not be thought that I am too prejudiced in favour of those precedents when I say that when, in another place, I had the honour of being Parliamentary Secretary to the Ministry of Power as long ago as 1957, I introduced the provision which became the first of those precedents. That was in the Electricity Act 1957.

I do not believe that there is very much more for me to say. However, I believe that my noble friend Lord Norrie—who would have moved the amendment in the first place had it not been grouped with Amendment No. 234—the noble Lord, Lord Ross, and the noble Baroness, Lady Nicol, will agree with me that the drafting of the amendment is capable of improvement because it contains a small degree of repetition which should always be avoided. In view of the great importance of ensuring that the application of our planning law protects the environment to the maximum extent possible, I hope that on this occasion there will be a sympathetic response from my noble friend on the Front Bench.

Lord Ross of Newport

As regards the iron bridge, I found out recently that Abraham Darby was an ancestor of mine. Therefore I hope that extra protection and publicity for which the noble Lord calls will be given.

I am pleased to support Amendment No. 235. It is comprehensive in its application. I cannot believe that it does not attract the Government because it is totally in accord with their current thinking as outlined in the recent White Paper. Therefore I hope that they will accept the amendment or its principle.

Baroness Blatch

Amendments Nos. 234 and 235 would require local planning authorities to take account of a specific range of environmental factors before reaching their decisions on planning matters. I hope to persuade the Committee that these amendments are unnecessary. Authorities are already required to take into account all the issues mentioned in the amendments.

Section 70(2) of the Town and Country Planning Act 1990 requires local planning authorities, in dealing with planning applications, to have regard to the material provisions of the development plan. That will include policies on environmental matters and all other material considerations. Each of the subjects mentioned in the amendments is likely to constitute a material consideration in many planning applications. They will therefore be taken into account as appropriate under the general planning law.

A number of existing provisions already cover the topics in the amendment. Section 11 of the Countryside Act 1968 requires authorities to, have regard to the desirability of conserving the natural beauty and amenity of the countryside". My department's Circular No. 27 of 1987 explains that this term embraces the conservation of flora, fauna, geological and physiographical features, all of which are mentioned by the amendment.

There are also already statutory provisions in the Planning (Listed Buildings and Conservation Areas) Act 1990 and in the Ancient Monuments and Archaeological Areas Act 1979 protecting buildings of special architectural or historic interest, conservation areas and ancient monuments. These are backed up by detailed guidance in the department's Circular No. 8 of 1987 and in Planning Policy Guidance Note No. 16 which explain how the powers should be used and draw attention to the relevant policy considerations.

Members of the Committee will be aware that we have just agreed to accept amendments proposed by the noble Baroness, Lady Nicol, which would introduce a reference to natural beauty and amenity into the general description in the Act of the scope of development plans. I believe that is an appropriate insertion. But to go further, as in these new clauses, would run the risk of distorting a process which must already take all material planning considerations into account.

The relative weight to be given to the factors mentioned in the amendments will be a matter for judgment in each case. Planning guidance issued by my department helps local planning authorities to give proper weight to environmental considerations. The environment White Paper This Common Inheritance affirmed the importance which the Government attach to environmental issues. We are now giving substance to that commitment by preparing several new planning policy guidance notes.

I sympathise with the intentions behind Amendments Nos. 234 and 235. However, I believe that they could both confuse and detract from the arrangements that already exist in the planning system for protecting the environment. County planning officers have pointed out that, although those environmental objectives are important for any planning authority, they are not the only objectives. Any such general duty may need to be balanced by a duty to do with the need for development in appropriate cases.

However, between now and Report stage I shall be happy to discuss these issues in a constructive spirit with my noble friends Lord Renton and Lord Norrie and the noble Lords, Lord McIntosh and Lord Ross. At this stage I hope that the amendments will be withdrawn. It will not be easy to arrive at a satisfactory form of words and I remain to be convinced that such a duty would serve a useful purpose. However, in view of the promise which I have given constructively to use the time between now and Report, I hope that these amendments will not be pressed.

5.30 p.m.

Lord Renton

Before the noble Baroness, Lady Nicol, or my noble friend Lord Norrie reply, perhaps I may ask the Minister to clarify one point. When inviting our attention to the various other statutory provisions she mentioned in passing the general development order. A general development order is not primary legislation. It is made under the powers already given by Section 70 of the 1990 Act. It can be varied from time to time. Admittedly, when it is varied it has to be laid before Parliament and my recollection is that it requires an affirmative resolution.

Of the various provisions mentioned by my noble friend that is the only one which applies specifically to all planning matters. The other provisions apply to some planning matters and not to others. Even the provisions of the countryside Act, although they are important and cover a lot of the ground, cannot be said to apply to all planning decisions. Therefore, in the Minister's further thoughts on the matter perhaps she will bear in mind that it is important to have this provision stated in primary legislation and not to have to rely merely on a general development order.

Baroness Blatch

My noble friend is right. I named primary and secondary legislation and guidance notes in the course of addressing the amendment. However, I shall incorporate consideration of those matters in the time between now and Report stage so that we can properly convince all noble Lords that the Bill, when it reaches the statute book, gives proper environmental consideration at all appropriate stages.

Baroness Nicol

Naturally I am a little disappointed that the noble Baroness did not see the need, as we do, to include the amendment in the Bill as it stands. When moving the amendment I drew attention to the existence of the present requirements to have regard to the desirability for conservation; that is not the same as the requirement expressed in Amendments Nos. 234 or 235. They ask that powers should be exercised so as to further conservation. That is a very much stronger provision.

However, perhaps I should explain that the existence of Amendment No. 234 was by accident in that my noble friend and myself were working in parallel on the same objectives. When we found that both amendments had been tabled we thought it would widen the debate to leave them, and so we did.

Perhaps I may also tell my noble friend Lord Howie that I sympathise with him. Although I felt reasonably satisfied with the reply given by the noble Lord, Lord Montagu, I would not wish to see structures such as the ones I love on the Fens—the old pumping stations which are a joy to watch and which can only be called engineering—disappear. I would wish to see them protected, and I am sure that there is a wide range of other things which come under that heading.

As usual, the noble Baroness gave a full reply, and in some cases was quite encouraging. I should like to consider her remarks. I do not know whether the noble Lord, Lord Norrie, wishes to move Amendment No. 235, but I beg leave to withdraw Amendment No. 234.

Amendment, by leave, withdrawn.

Lord Norrie had given notice of his intention to move Amendment No. 235:

After Clause 24, insert the following new clause:

("General environmental duty

. It shall be the duty of the Secretary of State and local planning authorities in discharging any of their functions under this Act to so exercise their powers as to:—

1. (a) further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological and physiographical features of special interest and the protection of sites, buildings and objects of architectural, historic or archaeological interest;
2. (b) further the conservation and efficient use of energy and natural resources; and
3. (c) ensure, so far as possible, that any authorisation includes such conditions as are required to mitigate any adverse effect which the processes may have on the natural beauty of the countryside or any such flora, fauna, features, sites, buildings, structures or objects and to minimise the use of primary energy sources and natural resources.").

The noble Lord said: I thank the Minister for her invitation to discuss the matter with her, which I look forward to doing. I shall not now move the amendment.

[Amendment No. 235 not moved.]

Lord McIntosh of Haringey moved Amendment No. 235A:

After Clause 24, insert the following new clause:

("Effect of ministerial statements

—.The Secretary of State may by regulation state which types of ministerial statement are material considerations in planning decisions.").

The noble Lord said: Amendment No. 235A is of limited intention and application. It is designed to persuade the Government to make clearer what are the material considerations to be taken into account in making planning decisions. It is fairly well established that planning law does not consist simply of legislation. It consists also of regulations, planning policy guidelines, all sorts of written communications from the Department of the Environment in the form of departmental circulars and statements in Parliament. We have become resigned to the idea that planning law is so complex that it cannot be encompassed entirely in legislation. Some practitioners even take the somewhat cynical view that government policy is that which can be obtained from Her Majesty's Stationery Office.

However, there are occasions when we go a little too far. Such an occasion was brought to my attention by the National Housing and Town Planning Council. In 1985 in the Queen's Bench Division of the High Court Mr. Justice Macpherson referred to a speech made by the then Secretary of State for the Environment, now the noble Lord, Lord Jenkin of Roding —I am sorry that he is not in his place on this occasion —at a dinner of the county planning officers' society on 14th March 1985. He embroidered, not merely politically, but in his capacity as Secretary of State, on some of the content of legislation and development plans.

The judge thought it appropriate to take into consideration that after-dinner speech by the Secretary of State, although in the end he did not reach the conclusion which I suspect the Secretary of State wished him to. The application, which was for office development, had been turned down by the local authority; on appeal the inspector had recommended refusal and that refusal was upheld by the Queen's Bench Division.

We would like to be sure that there is no addition to the long list of matters which have to he taken into account and cannot be ignored if a local planning authority is to behave properly. We want to ensure that it is not an addition to say that consideration should be given to all the ministerial speeches made after dinner at the county planning officers' society or any other organisation, whether affiliated to the Conservative Party or not. I beg to move.

Baroness Blatch

I am not rising to the bait. Since 1948 local planning authorities, when determining planning applications, have been required to have regard to the provisions of the development plan so far as material and to any other material considerations. This formula may seem rather vague and elusive. However, the courts have established that relevant government policy, which is published in a circular or planning policy guidance note, comprises a "material consideration" for planning decisions.

However, other expressions of policy by Ministers are also capable of being material considerations. I believe this should remain the case. The noble Lord's amendment envisages that the Secretary of State would define in advance by regulation which types of ministerial statement could be taken into account in planning decisions. The Government consider that such an approach would be both unduly restrictive and impractical, given the variety of forms which ministerial statements can take. If the regulations were drafted in broad terms there would be no discernible advantage over the present position.

The Government are continuously reviewing and refining aspects of planning policy to reflect changing circumstances and demands. Ideally, new planning policy guidance should be available from HMSO immediately as a circular or PPG but in practice that is not always possible. I hope noble Lords will agree that new policy advice should not be delayed pending an approved vehicle for its dissemination. It is in everyone's interest that it should be announced as soon as it has been formulated. My department will strive to incorporate new policy in a circular or PPG as soon as practicable. Although I entirely understand the noble Lord's wish to make the rules for determining planning applications as clear as possible, I suggest that this amendment amounts to an unnecessarily bureaucratic approach which could delay the promulgation of new policy. I hope that he will not press his amendment.

Lord McIntosh of Haringey

It is clearly not an amendment to be pressed. I am not sure that I very much like what I have just heard. It sounds to me as though Secretaries of State have complete freedom to make policy on the hoof. They can speak to anyone they like and make a new policy decision. Then the department will endeavour, as soon as possible afterwards, to embody that new policy in a planning policy guideline or circular.

Where does that leave Parliament? I believe that we have some rights in this matter and that there should be at least some lip service to the idea that Parliament is involved in making policy. Ministers, in seeking to give expression to policy, are responsible to Parliament. I am sorry that there was no reference to that in the Minister's reply. Clearly it is not a matter on which I would wish to divide the Committee. I believe that I have uncovered something which does not please me too much. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Planning compensation repeals]:

Lord Fraser of Carmyllie moved Amendment No. 236: Page 30, line 34, at end insert: ("(4A) Subsection (1) above shall have effect in relation to any compensation under Part V of the principal Act unless a claim for the compensation has been made in accordance with section 127 of that Act before the repeal of that section comes into force. (4B) Any amount recoverable under section 133 of that Act which has not been paid, including any interest on any such amount, shall cease to be recoverable and any mortgage, covenant or other obligation by which the payment of any such amount, or interest on it, is secured is discharged.").

The noble and learned Lord said: These are all minor technical amendments consequential on the planning and compensation repeals set out in Clause 25 as they apply to England and Wales and Clause 42 which applies to Scotland. I beg to move.

Lord McIntosh of Haringey

For the sake of good order it would be desirable for the noble and learned Lord the Lord Advocate to say to which amendments he is now speaking. There are some Bills when I require Ministers, in moving amendments that have already been spoken to, to indicate when they were spoken to. I have not done that this time because on the whole the groupings are not too complicated. However, when we start off it should be on record which amendments are being spoken to in this way.

Lord Fraser of Carmyllie

If we must insist on the matter being dealt with in that way, I am moving Amendment No. 236 and speaking to Amendments Nos. 237, 238, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 273, 379, 380 and 383.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 237: Page 30, line 35, leave out ("the principal") and insert ("that").

On Question, amendment agreed to.

Clause 25, as amended, agreed to.

Schedule 5 [Planning compensation repeals: minor and consequential amendments]:

Lord Fraser of Carmyllie moved Amendment No. 238: Page 93, line 6, at end insert:

("Gas Act 1965 (c. 36.)

1A. In Schedule 3 to the Gas Act 1965, paragraph 3 is omitted.").

On Question, amendment agreed to.

The Earl of Lytton moved Amendment No. 239: Page 93, leave out lines 7 to 22.

The noble Earl said: I have to make a slight apology as regards this amendment. It relates to a number of matters that will be debated in much more detail later on. In principle the amendment relates to the assumptions as to what the use of the property should be and therefore its value, for the purposes of Part I of the Land Compensation Act 1973. Members of the Committee will be aware that this provision relates to losses in value which arise from the use of public works. It is not their construction but their subsequent use.

There is one fundamental problem with this provision. It relates only to loss as against its existing use value and not against the loss in the open market value. This amendment sets out to remedy that deficiency. It will be more appropriate if I touch on this principle in much more detail later during the debate on matters of compensation. I now wish to speak to Amendment No. 341 which is grouped with Amendment No. 239.

At the risk of confusing the Committee, I can most easily explain this matter by saying that this amendment seeks to redress two separate injustices. The first relates to the provisions of the Compulsory Purchase Act 1965 where no land is taken. The Committee may be aware that under the interpretation which is generally known as the McCarthy rules (Metropolitan Board of Works v. McCarthy 1874), there is provision for compensation to be claimed by a claimant which is not attributable to land being acquired. It refers to the situation where no land is acquired. There is also a provision that under those rules the loss must be attributable and arising out of the land or an interest directly in it.

This amendment seeks to alter this provision. It is now established in compensation law through other provisions that where a claimant (if he can establish a claim), suffers a loss his loss is by and large his actual loss and not just the loss which arises from that incurred in the value of the land. A typical example would be where a business operation is being carried out and the works which affect the claimant affect not only the value of his land in terms of its rental value or ultimate capital value, but also his business.

The situation was brought into sharp focus recently in a case known to me personally. I was personally involved in trying to advise the claimant. Substantial road building and redevelopment operations were taking place under statutory provision. There was no compensation for the very substantial losses that this claimant suffered. I have to skate over a great deal of detail which is probably relevant as an explanation. It is a highly complicated area of the law.

As regards the case to which I have referred, the McCarthy rules were considered by the House of Lords in 1973 in Argyle Motors (Birkenhead) Ltd v. Birkenhead Corporation. It was held that under the provisions of an earlier Act of 1845, the claimants were not entitled to compensation for the loss of profits.

This amendment goes to the heart of something about which I feel very strongly; namely, that the occupation of land, the running of a business or, for that matter, being a householder in occupation of a dwellinghouse, is not simply a selective amalgamation of various bits of that occupation. It has been recognised in principle concerning residential property that it is a question of the property on the one hand and any disturbance which causes a quantifiable loss on the other. However, in the case of a business the profitability, particularly in the present economic climate, can be balanced on a knife edge. It does not take very much to tip the balance of probability heavily against the business occupier. That might include someone who is quite legitimately operating a business from his own home, and that sort of situation.

This amendment seeks to reverse the decision in the Argyle Motors (Birkenhead) Ltd. case. In doing so it is intended to put the claimant in the same position as he would have been were it not for the particular work that has been carried on. This does not introduce a new category of claimant. It means that someone who is able to claim under the provisions of the McCarthy rules will be exactly the person who can claim under this additional provision. That is what the first part of Amendment No. 341 seeks to achieve.

The second part of it allows for compensation to be paid for depreciation of the market value of the interest and not just for the existing use value. I referred earlier, in connection with Amendment No. 239, to Part I of the Land Compensation Act 1973 and to the claim that would arise from the physical factors arising out of the use of the works. At the moment there are some significant problems. The market value may be represented by something which is not represented by existing use value. It may have a hope value. It may have some value as regards the longer term purposes of that particular claimant. There is no reason why a claimant should not be compensated for those losses. The second part of the amendment seeks to overcome that limitation of the Land Compensation Act.

A corollary to this is intended to extend compensation to any claimant with a legal interest in the land and not just that of an owner occupier. For instance, as I understand it, the moment where there is a landlord/tenant situation neither occupier nor landlord would be in a position to substantiate a claim which an owner occupier would be entitled to make and on which he would be entitled to receive compensation. Such an injustice cannot be allowed to continue.

I hope I have not confused the Committee too severely in covering fairly briefly something which is extremely complex and a minefield of inter-reacting pieces of different legislation. I beg to move.

Lord Ross of Newport

The Royal Institution of Chartered Surveyors was very grateful to the Government for the notice they took of the blue book which the institution published a year or two back. It called for a simplifying and strengthening of the compensation code. I accept that in the Bill the Government have taken a good deal of it on board. The noble Earl, Lord Lytton, who is more capable than I, has just explained one of the areas where we think the Government have still not gone far enough. He outlined a case which was heard by your Lordships' House in its judicial role in 1973 and on which a declaration was made in 1974. I refer to Argyle Motors (Birkenhead) Ltd. v. Birkenhead Corporation which arose because of the reconstruction of the Mersey Tunnel. Several such cases may be arising at the present time because of the major motorway construction schemes going on in this country. I suspect that there will be other cases. In that case the House of Lords disallowed a claim for loss of profits made because of the resulting loss of business. The garage was actually cut off from direct access to the motor car showrooms. Therefore the proprietors of the garage could recover compensation for the loss of business only in so far as it might have depreciated the value of the land. I agree with the noble Earl, Lord Lytton, that that seems unjust. It is surely only right that the claimant should be allowed compensation for disturbance and any other matter not directly based on the valuation of the land. I support the amendment.

Baroness Blatch

Amendment No. 239 would remove from the Bill an amendment to Section 5 of the Land Compensation Act 1973 which Amendment No. 341 seeks to repeal. As I shall explain, we do not agree with subsections (1) and (3) of Amendment No. 341, which would have the effect of compensating claimants not only for depreciation in the value of their land but also for disturbance or losses which have no direct connection with that value. I refer to the kind of situation where a highway authority builds a much needed bypass around a town, the result of which is to divert traffic away from a petrol filling station and thereby reduce its trade.

Compensation for injurious affection already takes into account loss of business in so far as it affects the amount of depreciation in the value of the land; this is of course akin to normal land valuation procedure when land is sold on the open market and trade prospects are taken into account. I do not think the law could reasonably go further than that. While some people may be adversely affected by public development in this way, there will be others who gain from the benefits which such development can bring. In the bypass example, the improved quality of life created by the bypass might well have a positively beneficial effect on trade for many shops and services.

Subsection (2) of Amendment No. 341 would provide for all tenants, not merely those who own leases with at least three years left to run, to claim compensation for injurious affection relating to the use of public works. In our view this would not be a sensible proposition. The injurious affection provisions are designed to compensate those who own a marketable interest in their property: it would not in our view be practical to bring in those whose tenancy is short-lived and the value of whose interest is likely to give rise to only very small claims for compensation. However, where traffic noise is generated from new or altered roads, such tenants may be eligible for sound insulation, in lieu of compensation.

Finally, I refer to subsection (4) of Amendment No. 341 and with it the paving amendment, Amendment No 239, which I understand the noble Earl intends to withdraw. The effect here would be to remove from the statute book the long-established rule that compensation for injurious affection takes account only of the existing use value of the affected land and disregards any development potential.

This is not an easy issue. On one hand, it can be argued that since the purpose of the injurious affection provisions is to compensate for a fall in the value of land caused by public development, the assessment of value ought properly to take account of any development potential attaching to the property. On the other hand, it is not at all clear that there would in practice be any significant development potential in the great majority of injurious affection cases. Certainly we are not aware of any particular complaints or hardship arising from this aspect of the compensation code.

Given this and the fact that to introduce the concept of development potential into the injurious affection provisions could create an additional layer of legal complexity, we take the view on balance that there is no case for change. While I have some sympathy for the objectives of the amendments, it seems to me that the law already goes just about as far as is reasonable and practicable in compensating those who are adversely affected by public developments.

I hope therefore that when we come to it Amendment No. 341 will not be pressed.

The Earl of Lytton

I thank the noble Baroness for that extremely lucid reply. It is not my intention to press the amendments. I tabled them to find out what the Government's response would be. However, I am not at all satisfied by her response.

The question of losses being limited only to the value of land seems to limit artificially the scope on which compensation should properly be payable and in favour of an acquiring authority. That does not square very easily with my concept of natural justice and fair dealings in terms of the balance between the acquiring authority and claimants. There is a fundamental principle enshrined in compensation law that the claimant should be put in the same position, in so far as money or money's worth can make it, as he would have been but for the works which have affected his business. That is generally applied in situations where land is taken.

I have been seeking to encourage the Government to extend that principle further. I know that that has resource implications, and I am strongly of the view that that is the reason for the Minister's response rather than the points which she actually made. In my view the Government are, and should be, in a position to go a great deal further in the matter.

I should like to see an even playing field where claimants are not expected, as happens now, to subsidise the activities of public authorities. I believe that that is what is taking place at present. I shall not press the amendment at this stage. However, I feel very strongly about the matter and propose to return to it at a later stage of the Bill's proceedings. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6 p.m.

Lord Fraser of Carmyllie moved Amendments Nos. 240 to 247: Page 93, line 31, leave out ("(c)") and insert ("(b)"). Page 93, line 33, leave out ("(c)") and insert ("(b)"). Page 94, line 9, leave out second ("and"). Page 94, line 43, at end insert: ("16A. In section 198(4) (a) (tree preservation orders) "80, 81" is omitted. 16B. In section 220(3) (a) (advertisement regulations) "80, 81" is omitted. 16C. In section 284(3) (validity of orders, etc.) paragraph (c) is omitted."). Page 95, line 8, at end insert: ("(3) This paragraph does not affect the operation of Schedule 3 to the Planning (Consequential Provisions) Act 1990 in relation to any private interest or Duchy interest (as defined in section 293 of the principal Act)."). Page 95, line 13, at end insert: ("(2) Any amount recoverable under that section, by reason of a notice registered under section 132(1), which has not been paid shall cease to be recoverable."). Page 95, line 28, at end insert: ("26A. In section 328(1) (settled land, etc.) for "112, 133 or 327" there is substituted "or 112"."). Page 95, line 38, at end insert: ("28A. In Schedule 16 (provisions referred to in sections 314 to 319)— (a) in Part I for the entry relating to sections 114 and 115 there is substituted— Section 115", (b) in Parts III and VI, the entries relating to Schedule 12 are omitted.").

On Question, amendments agreed to.

Schedule 5, as amended, agreed to.

Clause 42 [Repeal of certain compensation provisions of the 1972 Act]:

Lord Fraser of Carmyllie moved Amendments Nos. 248 and 249: Page 51, line 35, after ("is") insert ("(with the exception of section 145 (determination of claims))"). Page 51, line 44, at end insert: ("(6) Schedule (planning compensation repeals -Scotland: minor and consequential amendments) to this Act shall have effect.

(7) Subsection (1) of this section shall have effect in relation to any compensation under Part VII of this Act unless a claim for the compensation has been made in accordance with section 143 of the 1972 Act before the repeal of that section comes into force.

(8) Any amount recoverable under section 148 of the 1972 Act which has not been paid, including any interest on any such amount, shall cease to be recoverable and any security by which the payment of any such amount, or interest on it, is secured is discharged.").

On Question, amendments agreed to.

Clause 42, as amended, agreed to.

Clause 26 agreed to.

Lord Montagu of Beaulieu moved Amendment No. 250:

After Clause 26, insert the following new clause:

("Power for Historic Buildings and Monuments Commission for England to bring legal proceedings . Where the Historic Buildings and Monuments Commission for England considers it expedient to do so, in relation to works which appear to it to contravene section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990, it may prosecute or may appear in legal proceedings and, in the case of civil proceedings, may institute them in its own name.").

The noble Lord said: On Second Reading I raised a number of key points of concern to English Heritage and gave notice that I intended to introduce amendments in Committee. I also said that I hoped the Government would look sympathetically on these amendments and that Members of the Committee would support them. I have reason to believe that my hopes may be realised this afternoon. Amendments Nos. 250 and 251 are not fundamental, but they would certainly help English Heritage to do a better job, which I am sure is the Committee's wish.

Amendment No. 250 relates to the power of English Heritage to bring legal proceedings. As Members of the Committee will be aware, "English Heritage" is the popular title of the Historic Buildings and Monuments Commission for England set up by the National Heritage Act 1983. One of English Heritage's principal duties laid down by Parliament is to secure the preservation of historic buildings and ancient monuments. I submit that that fact alone should justify giving power to English Heritage to bring legal proceedings in its own name. When English Heritage was first established in 1984 as an independent body, we assumed that the right to initiate legal proceedings was implicit in the nature of the duties imposed upon it. However, after taking legal advice, we discovered that we were wrong in that assumption. The amendment proposed would provide such powers.

The weapons available to English Heritage to defend the built heritage are varied and many; but the absence of this particular weapon from our armoury has proved to be a serious deficiency. The amendment proposed would give English Heritage a power to seek injunctions and a general power to prosecute where it appears that unauthorised and damaging works have been, or are being, carried out to a listed building.

Perhaps I may remind Members of the Committee that such powers are already conferred on local authorities. For its part, English Heritage would seek to exercise the power either jointly in collaboration with a local authority or by itself, as may be necessary on rare occasions, in default of action by a local authority. I hope that neither the scope nor the wording of the amendment as tabled will need adjustment. In the end, I trust that Members on all sides of the Committee would like to be certain that it provides exactly the additional power required by English Heritage to fulfil the duties placed upon it by Parliament. I beg to move.

Baroness Hollis of Heigham

I support Amendment No. 250, which was ably moved by the noble Lord, Lord Montagu. I also speak as a commissioner of English Heritage, as well as a member of a local authority. I strongly support the point made by the noble Lord that when English Heritage was established it was designed to be an agency of last resort in terms of protecting and conserving historic buildings and areas and ancient monuments. It is precisely because it is an agency of last resort that it needs reserve powers to initiate legal proceedings when unauthorised works are proposed, or have been started, on listed buildings. Normally local authorities would and should take on such a responsibility. However, in some cases they cannot or will not do so. I suggest that, in such a situation, it is entirely right that English Heritage should have those reserve powers. I very much hope, as suggested by the noble Lord, Lord Montagu, that this is indeed an amendment which is pushing at an open door.

Lord Harmar-Nicholls

I trust that the hope expressed by my noble friend that this amendment would be accepted will be fulfilled. English Heritage was given a very important task. If we want to preserve the things which we know ought to be preserved, it is outstandingly important that English Heritage should have the ultimate power to ensure that any reasonable desires have the backing of law, if necessary. Now that we are aware of the situation, I do not believe that we would for a moment want to put English Heritage into a position weaker than that of the local authorities when carrying out such a task.

Baroness Blatch

I understand my noble friend's concern about the fact that, at present, there is no explicit power for English Heritage to seek prosecutions for infringement of listed building control, although it has been established as our statutory adviser on matters relating to the preservation of listed buildings, conservation areas and ancient monuments and has a statutory duty to secure the preservation of ancient monuments and historic buildings so far as practicable. I should like to take this opportunity to say how much my department values the work of English Heritage carried out under the very able chairmanship of my noble friend Lord Montagu.

It is admittedly somewhat anomalous that English Heritage should not have that power in question when it would be open to a local amenity society, say, or a private individual, to take such action. I can see that there may be cases where the absence of such powers could inhibit the preservation of a building—a point made by the noble Baroness. For breaches of legislation relating to ancient monuments, however, English Heritage is able to prosecute and indeed has done so successfully on a number of occasions.

To a certain extent, the Bill already deals with the situation so far as concerns injunctions. The new provision in Schedule 2(7) which specifically empowers local planning authorities to seek injunctions against breaches of listed building control is also applied to English Heritage in London by virtue of paragraph 17. That reflects its specific functions in respect of listed buildings in London, which it inherited from the Greater London Council. The amendment of my noble friend Lord Montagu would, however, go beyond that.

The department did, in fact, go out to consultation in 1989 on a proposal that English Heritage should be empowered to prosecute and seek injunctions for breaches of listed building consent. The greater majority of respondents were in favour of this, although some local authority interests thought that it would be useful for the local planning authority to be consulted first before English Heritage acted. In the light of that, we are sympathetic to the proposal in principle. We would, however, like to look carefully at the drafting to ensure that it covers appropriately the types of case which we have in mind. My noble friend has already indicated that, on reflection, he considers the scope of the amendment as tabled is not quite as extensive as he would wish. If he is content to withdraw it now, I can assure him that we are prepared to bring forward at a later stage an amendment of our own which will achieve the same objective.

Amendment No. 251 would enable English Heritage to seek information about ownership or other interests in land to enable it to pursue public prosecutions, or other legal proceedings. Local planning authorities, and the Secretary of State, already have powers under Section 330 of the Town and Country Planning Act 1990 to seek information about ownership in land to enable them to serve any notices or documents which they are empowered to serve under the legislation. The same provision applies to notices under the listed building legislation by virtue of Section 89 of the Planning (Listed Buildings and Conservation Areas) Act 1990. These provisions do not, however, apply to English Heritage even though it has powers of enforcement in London.

My noble friend Lord Montagu indicated in his speech at Second Reading that he was concerned to ensure that English Heritage was given the Section 89 powers for its work in London, so that if it wished to take action under its statutory powers it had a means of obtaining the necessary information about the ownership of the building. We are sympathetic to this; it seems quite reasonable that where English Heritage has been given statutory powers it should also be given the tools to use them adequately.

The present amendment, as drafted, is somewhat different in scope from this, however, because it would empower English Heritage to require information for the purposes of prosecutions or other legal proceedings. We should like an opportunity to consider the drafting and the precise circumstances in which this power should apply and to bring forward an amendment of our own at a later stage.

With that explanation and, I hope, encouragement, I trust that my noble friend will not wish to press his amendments.

Lord Montagu of Beaulieu

I must apologise to my noble friend. I have not actually spoken to Amendment No. 251 as I had assumed the amendments were going to be taken separately. However, I thank my noble friend very much for what she has said. Perhaps I might just say that we feel that Amendment No. 251 is important. We are merely trying to extend a power which is at present available only to the Secretary of State and local planning authorities. To identify the name and address of an owner and to take action over a listed building are extremely important. This important power is missing, and I am grateful to the noble Baroness for pointing out that there may be some flaws in the amendment. I am also grateful for the fact that we shall be able to have further consultation in order that a government amendment may be brought forward at Report stage. That is something I should certainly welcome. In view of what my noble friend has said, I beg leave to withdraw Amendment No. 250.

Baroness Blatch

Just before my noble friend sits down, I hope he will forgive my presumption. I assumed that both amendments were being spoken to. I had taken as my guide his Second Reading speech.

Amendment, by leave, withdrawn.

[Amendment No. 251 not moved.]

6.15 p.m.

Lord McIntosh of Haringey moved Amendment No. 252: After Clause 26, insert the following new clause:

("Crown development

. For Part XIII of the principal Act (application of Act to Crown land) there is substituted—

"Crown Development.

293. This Act shall bind the Crown except as provided by a development order." ")

The noble Lord said: This amendment is one in a long and quite honourable line of legislative proposals, some from government and some from other sources, which have sought to restrict the immunity of the Crown from various types of legislation. We had some very good examples of the reduction or removal of Crown immunity in the Environmental Protection Act 1990. It seems to us that this Bill provides a good opportunity for further removal of Crown immunity, which is now quite outdated.

This has of course nothing to do with the Crown: we are talking about the Government here. The present situation is based on a quite false antithesis between the interest of the Government as expressed through the Crown and the interests of the public as expressed through the rest of legislation. I recognise that there are some cases where the Crown should not be bound by normal planning law, as, for example, there are obvious cases of national security which are thought to be excluded from legislation. However, the way in which this amendment has been drafted—in other words, to include the Crown except as provided by development order—makes it perfectly possible for the Government to draft a development order which provides, for cases of national security or other cases as they may think necessary.

The general principle that the Crown should be included in legislation of this kind, particularly when the legislation is rightly put forward as an advance in the coherence and "workability" of planning law, is a sound principle and one which ought to be adopted unless there are very good and specific reasons to the contrary. It is unfortunately the case that the Crown development, at least since the time of Nash and certainly in London, which I know best has often been of poor quality both in aesthetic terms and in terms of planning, thinking and even aptness for its purpose.

I must weigh my words carefully when speaking in the presence of those who have to work in the three most horrible buildings within sight of Westminster—the three towers of Marsham Street. I rather think they are going to have to move out shortly. Not only are the buildings hideous from the outside but they do not work very well and their roofs do not work very well. After far too short a period the buildings are to be at least partially evacuated so that something can be done to put them right. But the correct thing to do would be to pull them down altogether.

However, leaving that extreme example on one side, it is still the case that the Crown/Government use or misuse the exemption from large parts of normal planning law to do things which would not be accepted by any proper planning authority, which would not achieve public support if exposed to public scrutiny and which ought therefore, with as much force as possible, to be exposed to public scrutiny and to the disciplines of the planning law which is the subject of this Bill. I beg to move.

Lord Fraser of Carmyllie

While the noble Lord is indeed correct in saying that in recent years there has been an erosion or alteration in the position of the Crown in relation to a number of statutory provisions, I am sure he will appreciate that in this area what he is proposing is a change with far-reaching implications. It is a change which, before being introduced, should have the widest possible consultation.

He is correct in many respects in saying that the Crown is in an anomalous position in regard to the planning system, but that is not altogether surprising. As was said earlier, there are particular arrangements under Clause 17 of the Bill for local authorities and any development by them. There are special arrangements for statutory undertakers as well. So there are special arrangements in the planning system for bodies with particular duties to perform and particular services to provide. The position of the Crown should be viewed in that context.

As the noble Lord has clearly spelled out, the Crown is not wholly excluded from the statutory framework either north or south of the Border. The amendment is of course restricted to the 1990 Act, and what I have to say therefore refers specifically to England and Wales, although I should make it clear that for the planning framework in Scotland the position is similar.

Under Section 299 of the 1990 Act the Crown may, for example, apply for planning permission on disposal of its land. This Bill also provides in Clause 12 for the Crown to be able to enter into planning obligations in England and Wales. Department of the Environment Circular 18/84 sets out the special procedure for obtaining planning clearance for development by Crown bodies. That would seem to me to provide adequate safeguards while preserving the necessary rights and privileges of the Crown.

Crown bodies send the local planning authorities a notice of their proposed development. The proposal is then considered in a similar way to a planning application in relation, for example, to notice and publicity, except that the local planning authority does not grant or refuse permission in the ordinary way but rather signifies whether or not it finds the development proposal acceptable. If it objects to the proposal and its objections remain unresolved, the Secretary of State decides whether planning clearance shall be given. He may take his decision after receiving written representations or after holding a meeting between the parties, or he may hold a non-statutory public inquiry. So in many ways there is a parallel with an ordinary planning application for planning permission.

I should say that few complaints are received about these arrangements. They are generally considered to work well and as at present advised we see no need to change them. I shall not follow the noble Lord in his aesthetic appreciation of the buildings in Marsham Street. I hope that with that explanation he will not be minded to insist upon his amendment.

Lord Harmar-Nicholls

There is a clear conflict of view between the mover of the amendment and my noble and learned friend. The amendment seems to be unnecessary in view of the reply that we have just received. Before we accept the amendment we should have some evidence as to where matters have gone wrong in the past. My noble friend said that the local planning authority was in a position to stop the matter. Unless we have evidence that the indications given by the Crown authorities have pushed against the local authority's general view, we should not consider a change.

I am a great believer—the noble Lord who moved the amendment is not in the same category as I am—that if something is proved to be working as well as this law has over the years, why change it unless he can bring evidence to show that the procedure has done some damage in the past or has been unfair?

The Earl of Kinnoull

My noble friend makes a good point. I remember a case some years ago, although I suspect that it was before 1984 and the circular that my noble and learned friend quoted. The Ministry of Defence sought to build a block of offices in an open field in the green belt just outside Beaconsfield. It caused tremendous local concern. So far as I know the proposal did not go before any planning authority. It is still an eyesore.

My noble and learned friend talked about a non-statutory public hearing. What is the difference between a non-statutory and a statutory public hearing? Does a non-statutory public hearing reduce the rights of those who wish to appear? Have there been many public hearings in such cases within the past five years?

Lord Fraser of Carmyllie

I cannot give the number of such inquiries, but they are held. Non-statutory inquiries are those without a statutory basis. They mirror what my noble friend would experience if he attended a planning inquiry that followed an application for planning permission in the ordinary way. If he were to wander into an inquiry not knowing whether it was statutory or non-statutory, the procedures and the way matters were being considered would to all intents and purposes be identical.

Lord McIntosh of Haringey

That little exchange gives me great encouragement. It is nice that after some years of the ascendancy of the radical Right, now happily in full retreat, we on these Benches are the ones accused of being conservative. When we were faced with attacks on the powers, rights and responsibilities of local authorities, we were accused of supporting the status quo. We were the ones who were saying, in words that the noble Lord, Lord Harmar-Nicholls, did not quite use, "If it ain't broke, don't fix it". We now propose a change—we are not the conservatives—the tide of opinion is fortunately changing and we are returning to constructive rather than destructive change.

As the noble and learned Lord rightly says, the amendment is part of a trend which has continued for a considerable period of time and which will not go away. He challenges me to produce evidence of objectionable developments by the Crown and of discontent. I do not have the same resources as the Government; I cannot issue consultation papers and obtain similar replies, as they can. I shall return with the suitable evidence at another stage. I shall withdraw the amendment on that basis.

I am convinced that the trend towards the involvement of Crown property (government property) in the normal legislative process is one which will proceed. It is not enough to say that the Crown may apply for planning permission when it seeks to dispose of land. It is only "may" apply; not that it shall do so. It is not enough to say that the Crown may now be involved in planning agreements. As the noble and learned Lord is aware, when that was proposed during earlier proceedings of the Committee, we welcomed that change. We need to go further than that now. We need to involve the Crown more seriously in the planning process. We shall return with suitable evidence which I hope will convince the Committee that the change is a worthwhile one which is now well overdue. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 252A not moved.]

Schedule 6 [Planning in England and Wales: minor and consequential amendments]:

Viscount Astor moved Amendment No. 253: Page 96, line 27, at end insert:

("Agricultural Land (Removal of Surface Soil) Act 1953 (c. 10.)

Local Government Act 1972 (c. 70.)

. In Part III of Schedule 12A to the Local Government Act 1972, in the definition of "protected informant", for "172(3)" there is substituted "171A".").

The noble Viscount said: I should like to speak also to Amendment Nos. 254 to 260, 262, and 265 to 269. Schedule 6 is concerned with minor and consequential amendments to the planning Acts in England and Wales. These are all minor, technical amendments to improve the practical operation of various provisions elsewhere in the Bill or to remedy errors and deficiencies in the Bill as published. I need not detain the Committee with detailed descriptions of every amendment, but I am happy to try to answer any points arising from them. I beg to move.

On Question, amendment agreed to.

Viscount Astor moved Amendments Nos. 254 to 259:

Page 97, line 5, at end insert: ("4A. In section 56(3) after "87(4)" there is inserted "89"."). Page 97, line 10, at end insert: ("7A. In section 74(2) "section 71 of this Act and" is omitted."). Page 97, line 39, leave out from ("whether") to ("lawful") in line 43 and insert ("on the date on which the appeal was made, any existing use of the land was lawful, any operations which had been carried out in, on, over or under the land were lawful or any matter constituting a failure to comply with any condition or limitation subject to which planning permission was granted was"). Page 98, leave out lines 1 to 3 and insert: ("(1A) The provisions of sections 191 to 194 mentioned in subsection (1B) shall apply for the purposes of subsection (1) (c) as they apply for the purposes of section 191, but as if—

1. (a) any reference to an application for a certificate were a reference to the appeal and any reference to the date of such an application were a reference to the date on which the appeal is made; and
2. (b) references to the local planning authority were references to the Secretary of State.

(1B) Those provisions are: sections 191(5) to (7), 193(4) (so far as it relates to the form of the certificate), (6) and (7) and 194"."). Page 98, leave out line 41 and insert: ("(c) in subsection (8) for "172(6)" there is substituted "172"."). Page 99, line 3, after ("(c)") insert ("to").

On Question, amendments agreed to.

Lord Ross of Newport moved Amendment No. 259A: Page 99, line 28, at end insert: ("21A. In section 215 at the end of subsection (2) there is added "end may require the doing (while the notice remains in force) at such times or intervals, or within such periods, of any such thing as may be so specified."").

The noble Lord said: This is a small matter but I believe that it is worthwhile because it would save local authorities some extra bureaucracy. During the passage of the Environmental Protection Bill we discussed the extension of litter controls to private land (Hansard col. 1646; 27th June 1990). In response to a point that I made the noble Lord, Lord Reay, said that the powers were available under the Town and Country Planning Act (col. 1648). That is true, but it is a one-off power.

Section 215 of the Act allows an authority to serve a notice requiring a land owner to clear his land of refuse or whatever else may be covering it. However, once that notice has been served, if the land becomes covered with litter again, a new notice must be served. The amendment would allow the authority to specify, for example, that the land should be cleared monthly or bi-monthly, thus saving it time and trouble in continually have to serve notices to remedy that type of problem.

I am thinking of an area of property or land which is constantly being covered with litter or rubbish. One notice would therefore serve to ensure that the land was cleared on a monthly or bi-monthly basis. The local authority would not have to return each time the ground became covered with litter. I came down from Shrewsbury this morning by train. I do not know when the control of environment and litter clauses will have any effect on the general public, but they are not having any effect yet. There are areas which will become covered with litter after having been cleared until we get the message over. The amendment is a sensible one, and I beg to move.

6.30 p.m.

Viscount Astor

I know that the noble Lord, Lord Ross, it particularly concerned about litter. Indeed, we have had some interesting debates on the subject during the passage of this Bill and the Environmental Protection Bill through this House. It was then that my noble friend Lord Reay pointed out that a provision existed in the town and country planning legislation that would enable authorities to deal with the problem of litter on private land, including farmland, as mentioned by the noble Lord, Lord Ross. However, I regret that I cannot accept the noble Lord's amendment.

Section 215 is not specifically for litter but refers to the proper maintenance of land as a whole. Any littering would have to be exceptionally severe to warrant a Section 215 notice. It would more usually be used in cases of dumping or abandoned vehicles. A few fertiliser bags are unlikely to be sufficient to be considered detrimental to the amenities of an area.

As the noble Lord will be aware, there are provisions in the Environmental Protection Act 1990 for tackling the problem of litter on private land. Power for local authorities to designate litter control areas will cover those areas of private land most likely to be littered and which will have the biggest visual impact on the public. Such areas might include supermarket car parks, shopping centres and motorway service stations but would not include land to which the public are not permitted access.

Furthermore, to issue a notice with a continuous liability —for example, to clear away any litter on land every two weeks or once a month—would be an invitation for unscrupulous individuals to dump litter or refuse on the land in the knowledge that the unfortunate landowner would be under a statutory obligation to remove it. One must take a balanced view about whether it is reasonable to place what might be an onerous continuing liability on a private individual. In these circumstances we take the view that it would be unreasonable.

In most instances a time limited notice would be sufficient to ensure that the land is restored to a proper condition, and it is unlikely that it would return to the previously poor condition within a short space of time. The noble Lord may argue that landowners may wait until the period of notice is up and just leave the land to return to its previous condition but unless he is suggesting that under his amendment a notice imposing a regular requirement would not have a finite life, the unprincipled landowner may do that in any case.

Much as I share the noble Lord's desire to see our country free of the menace of litter, I cannot accept this amendment. Therefore, I must ask him to withdraw it.

Lord Swinfen

I understand my noble friend to say that local authorities already have power to make people remove litter from their land. This power does not always appear to be used. Can he say what steps the Government are taking to ensure that local authorities use such powers? Some parts of this attractive island of ours are in a terrible mess.

Viscount Astor

Under the Environmental Protection Act local authorities have an obligation to designate such areas and tackle the problem of litter.

Lord Ross of Newport

Obviously there are arguments against the amendment, which I accept, but the point put by the noble Lord, Lord Swinfen, is very pertinent. Are we waiting for an order for some of these powers to be implemented or does the Act apply now? I do not have that knowledge, but if the Act is operating now, the noble Lord is absolutely right: nothing seems to be happening.

Viscount Astor

I think I am right in saying that the implementation date is 1st April.

Lord Ross of Newport

That is an appropriate date. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 260: Page 99, line 40, leave out from first ("section") to end of line 41 and insert ("286—

1. (a) in subsection (1), paragraph (b) is omitted and in paragraph (c) for "an established use certificate under section 192" there is substituted "a certificate under section 191 or 192", and
2. (b) in subsection (2), after "183" there is inserted "or a breach of condition notice under section 187A".").

On Question, amendment agreed to.

Lord Ross of Newport moved Amendment No. 261: Page 99, line 41, at end insert: ("27A. In section 288 for subsection (3) there is substituted— (3) An application under this section must be made within six weeks from the date on which the applicant was notified of the order or decision." ").

The noble Lord said: Under this amendment I am seeking to amend Clause 288(3) of the Town and Country Planning Act 1990 with the words that appear on the Marshalled List.

Under the Act, in regard to proceedings for questioning the validity of orders, decisions and directions an application must be made within six weeks from the date on which the order was confirmed. The problem is that people who wish to appeal do not always get notified.

The Association of Metropolitan Authorities has asked for evidence on this. A case occurred in the courts in 1988. It seems to be very unfair that an appeal must be instituted within six weeks of the decision being taken. I understand that that is interpreted by the courts as the date on which the decision letter is typed, signed on behalf of the Secretary and date-stamped. The period is absolute so that if the appeal is brought outside the six weeks it must fail.

In the case to which I referred the High Court rejected the argument that, as a result of a flawed consultation procedure, the Secretary of State was without jurisdiction to determine the appeal. The fact that the applicant was unaware that the local authority had made an appeal and only found out when it was too late meant that he lost his case, which seems to be unfair.

I should have thought that if we put in the word "notified" it would make it abundantly clear that when notification was received an applicant had six weeks from that date. In the case of which I am speaking, the person did not know that the local authority had made an appeal against the decision and so was ruled out of court when he went to law. I beg to move.

Lord Fraser of Carmyllie

I listened with interest to the noble Lord. He will appreciate that the rule provided for in Section 288 is a long-standing one. Indeed, it goes back to the 1962 Act. In addition, it has the merit of clarity. The period runs from the time of the Secretary of State's decision or order. The date should thus be clearly recorded and there should be no dispute about it. All those involved can be clear that risk of High Court challenge is over once the six-week period has expired. Where there is such a risk, a developer may be anxiously waiting to start his development until he is sure that it is safe to do so.

I am concerned that this amendment would introduce uncertainty as to time. As I understand it, the noble Lord is proposing that the time would run from the date of notification, which is not defined. Indeed, in certain circumstances it might be very difficult, if not impossible, to ascertain it precisely. That must be undesirable.

The noble Lord would gain greater sympathy for his proposal if the period in question were a very short one, say two or three days, but where there is a duration of six weeks it would seem appropriate to have a fixed time running for six weeks from the date of the decision.

Lord Swinfen

Could my noble friend say what steps are taken to ensure that the applicant is notified?

Lord Fraser of Carmyllie

As I understand it, he would be notified. There may be cases where the notification is not instantaneous and is not necessarily given overnight and where there are delays of some few days. It was for that reason that I indicated that if the period in question were five days or a week I could see greater force in the amendment that is being proposed if through inadvertence or minor incompetence the decision was not immediately notified to the applicant. In such circumstances one might wish to rely on something other than a fixed period of time from the date of the order, but where there is a period of six weeks, even if there has been a short delay—and I do not think that there has been more than a short delay in the past—it would be better to keep to the rule provided, which has the merit of clarity and people know without doubt from which point the decision begins to run.

Lord Swinfen

I thank my noble friend for what he has said, but he has not answered the question I asked. I asked what steps are taken to ensure that the applicant is notified.

Lord Fraser of Carmyllie

I indicated that notification should be given to the applicant in the ordinary way. It is not a matter of notification being sent by recorded delivery or registered post, or being personally served on an applicant. As I understand the situation, the applicant is notified in the normal manner.

Lord Ross of Newport

We know that things can go wrong with the post. However, in the case that I referred to, the local planning authority admitted that it had not notified the applicant of its appeal to the Secretary of State. The applicant was in total ignorance of that. I have heard what the noble and learned Lord has said. I hope that we can bring forward a slightly different amendment on Report. I believe this area should be covered. I realise that one cannot cover every eventuality but, in the case I referred to, the applicant lost out because of the present wording of the law. He should not have lost out. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Astor moved Amendment No. 262: Page 100, line 4, at end insert:

("29A.—(1) Section 299 is amended as follows.

(2) In subsection (1) for "determination under section 64" there is substituted "certificate under section 192".

(3) In subsection (2) for "or determination" there is substituted "or certificate".

(4) For subsection (4) there is substituted— (4) Any application made by virtue of this section for a certificate under section 192 shall be determined as if the land were not Crown land. (5) In subsection (5) (a) for "determinations" there is substituted "certificates". (6) In subsection (6) for "determination" there is substituted "certificate".").

On Question, amendment agreed to.

Lord Ross of Newport moved Amendment No. 263: Page 100, line 25, at end insert: ("( ) in the definition of "building operations" after the words "includes" there shall be inserted "demolition or" ")

The noble Lord said: This amendment concerns a rather more important matter as it relates to the obtaining of planning consent for demolition. I am aware that this matter has been debated in another place. A Private Member's Bill has been introduced in another place to cover this situation. I believe that it was introduced in the previous Session.

At present it is considered that the demolition of a building does not usually require planning permission because it is not a building operation as defined in the 1990 Act. In the report Control of Demolition of 1974 by Mr. George Dobry QC, a recommendation was made that demolition should be brought under control. However, that recommendation has never been implemented. The amendment before us this evening would bring demolition under control as recommended in the report. It would stop someone demolishing an existing building in order to force a planning authority's hand. Further, the gap in the legislation inhibits proper planning of an area. Furthermore, the amendment would prevent premature demolition of houses and other buildings in advance of firm proposals for the redevelopment of a complete site, and the demolition of buildings within a community such as shops, cinemas and other such buildings.

If the amendment were passed, the general development order of 1988 could also be amended to provide exceptions for minor operations or those which do not materially affect the external appearance of a building. We do not wish to be too niggardly about this matter but some alarming cases have been brought to my attention. I am sure the Minister will be aware of a case in North London where half of a semi-detached house was pulled down. The people living there went through absolute hell as they were exposed to the elements. However, there was little they could do about the matter. I have received photographs of that house.

The National Housing and Town Planning Council worked with Mr. John Wilkinson MP, on his Private Member's Bill to try to bring such situations under planning control. The council has stated that it wants, to establish a system that would be genuinely effective in controlling demolition, without being unduly onerous in cases where demolition did not matter. We were inclined to the view that prior notification had advantages, but did not wish to rule out other possibilities, including amending the definition of development (or building operations). We have been disappointed that the Government has not followed up the responses to that consultation with any proposals for action in this legislation.

I draw the Minister's attention to the article that was written by Mr. Hugh Dykes MP entitled Nightmare on Elms Road. That illustrates how appalling it is when half someone's house is taken away. This matter should be given serious consideration while we are debating this legislation. On the whole it has the support of the Association of Metropolitan Authorities. That body believes demolition should be brought under planning control. Obviously I shall listen to what the Minister has to say. I hope I shall obtain some support for this matter in this Chamber. I beg to move.

6.45 p.m.

Lord McIntosh of Haringey

I give my strong support to this important amendment. As the noble Lord, Lord Ross, has said, this matter has come before Members in another place on a number of occasions. As the Minister will no doubt make clear, it is a matter which has been discussed within the department, and it is a matter on which there has been consultation. I believe that a consultation document was produced last summer which proposed a number of different alternative solutions for dealing with this complex and potentially serious subject.

The consultation document suggested, first, that more conservation areas should be established. By that it meant areas where special consent was needed to demolish a building. Secondly, the document suggested there should be more closely defined special development areas where planning permission was required before a building could be demolished. Thirdly, the document suggested there should be some system of prior notification. Fourthly, it was suggested there should be a code of practice and, fifthly, that there should be further planning policy guidance which made it clear that there was no planning advantage in demolishing a building. In other words, demolition did not give the applicant the right to assume that he would obtain permission for a more intensive or different use, or that his case would be strengthened by the fact that he was now dealing with a vacant site rather than an existing building.

The proposal behind my amendment—that is, to change the definition of development—appeared only as the sixth alternative in the consultation document. I do not know whether the Minister is in a position to analyse the results of the consultation. Certainly the view of the Association of Metropolitan Authorities is that the sixth alternative—that is changing the definition of development—is the right course to follow because demolition that is intended to bypass or circumvent the planning laws can be an extremely damaging procedure in towns, cities and villages. It can create vacant sites which are eyesores and can be health hazards. It can involve the loss of large houses which need not necessarily be architecturally distinguished in themselves but which make up the character of an area. The character of an area can be dramatically changed if they are removed in a random and haphazard way.

Developers and others may make the supposition that demolition without permission is being carried out in order to force the hand of the local planning authority. There is no doubt that local planning authorities are under pressure to give permission for some other use when the alternative is an empty site which is an eyesore. There may already be light at the end of the tunnel. I read last month in the Local Government Chronicle that Mr. David Widdicombe QC, who is well known and well beloved by the Government, allowed an appeal by Cambridge City Council in its attempt to stop a developer from converting two houses near a new office complex into a car park. Mr. Widdicombe stated that the question of whether demolition constituted development was, a ghost which haunts planning law. The time has now come for the ghost to be laid". I do not know whether there will be a further appeal on the case which came before Mr. Widdicombe. However, it would be to the advantage of everyone concerned, and would make the planning law clearer, if the Government now recognised that the evasion or avoidance of planning controls by unauthorised demolition can no longer be ignored, and that unless this is put right there will be a major gap in the effectiveness of our planning law. I hope the Government will agree with the proposals contained in the amendment of the noble Lord, Lord Ross.

Baroness Blatch

The noble Lord, Lord Ross, supported by the noble Lord, Lord McIntosh, has raised an issue which we know is a matter of concern in some areas of our towns and cities. The worry is that where prospects for redevelopment are commercially attractive—for instance, where large houses in older suburbs have sites which could accommodate several smaller modern houses—developers may try to force the hand of the planning authority by demolishing the existing property before they seek planning permission for redevelopment. The general assumption—at any rate until a few days ago—has been that they need no permission to demolish, unless the building is listed or is in a conservation area.

The concern is that the planning authority may in those circumstances be pressured into giving permission for redevelopment which it would not in ordinary circumstances have found acceptable. It may do so on the basis that the only alternative is to accept that the site will be left vacant and untidy.

Those arguments were put to us in support of a Private Member's Bill in another place last spring. As a result we undertook a consultation exercise aimed at establishing the real extent of the problem and what might be done about it. We made clear at the time that in our view the extent and gravity of the problem should determine the appropriate solution, and a change in primary legislation would only be justified on the basis of systematic and general evidence of a problem going well beyond the natural process of demolition and redevelopment.

We had 175 responses to the consultation paper. Many of them argued for a change in the legislation, but they did not produce systematic evidence of a general and widespread problem. The problem of premature demolition appears to be most prevalent in certain areas of London and the South-East. We have evidence of problems also in some other areas but relatively few in rural areas and shire districts. Even in those areas where demolition has proved a problem, the number of cases giving rise to genuine concern appears to be fairly small.

Against that background, our view is that a great deal can be done to tackle the problem by the inclusion of appropriate policies in local plans and unitary development plans. If a developer knows that the stated policy of the planning authority is not to grant permission for more intensive development in a particular neighbourhood he will know that his chances of forcing its hand by speculative demolition are minimal. After all, it is always open to the planning authority to grant permission for no more than an exact replacement of the original dwelling house.

We intend to give new policy guidance on these matters in a revised and updated planning policy guidance note on housing which will be published shortly. It will make clear that the demolition of existing property does not in itself create any presumption that permission will be granted for more intensive redevelopment. It will also stress that local plan policies can make clear that the creation of an unsightly vacant site will not strengthen the case for redevelopment where on other planning grounds it would not be acceptable. Such policies can, we believe, help a great deal.

The question of legislation is more difficult. One crucial question is the exact significance of the present law. Noble Lords will know that the general understanding has been that demolition does not of itself require planning permission. However, as the noble Lord pointed out, a judgment was given in the High Court only a couple of weeks ago which appears to take the opposite view, at any rate in respect of certain types of demolition. We shall be studying the transcript of that case when it is available with great interest. That is an issue which we can take no further today.

Turning to the noble Lord's amendment, on the face of it it would go far wider than the problem that has been put to us. It would bring all types of demolition under planning control, in all areas. That, in our view, is far too sweeping a response to what seems a relatively limited problem. It would clog an already overloaded planning system with more applications, many of which would be unnecessary. I do not believe that such a step would be justified on the evidence we have of the scale of the problem. It would be preferable, in my view, to deal with the problem through policy guidance and through the policy framework set out in local plans and UDPs. If we were to go down the legislative path I am quite sure that we would have to devise an approach which enabled planning controls over demolition to be applied selectively. I am not convinced at this stage that even that is necessary.

I hope following that explanation, the noble Lord will not press his amendment.

Baroness Hollis of Heigham

Before the noble Lord, Lord Ross, responds to the Minister, I hope that she will reconsider her answer to Amendment No. 263. The noble Baroness made much of the point that she had not heard much criticism from shire district councils. My experience, as an active member of the Association of District Councils, is very much to the contrary.

I have personally had to try to stop a developer from knocking down a house opposite mine which was built in the 1860s, and was not in a conservation area. I was able to do so by placing a preservation order on the trees. The house was saved because the site was wrecked for the purposes of the developers.

I believe that the Minister's hope that a vacant site will not produce a presumption in favour of development is not worldly and realistic. That is not what we have come to expect from the Minister. The amendment must be the only way forward and I very much hope that the Minister will reconsider her view before Report stage.

Lord Ross of Newport

I, too, was disappointed with the reply, particularly as it was Cambridge City Council which brought the case which has been mentioned. I hope that the appeal is overruled, in which case the Government will have to take action.

The situation may be easier now, and perhaps for the next year or two, while property speculation is in the doldrums. However, the problem will come back. One knows of cases in which the value of a property on a site is much less when the property is up than when it is down and if one turns the site into a private car park one would probably make a great deal of money.

I do not believe that we should allow the type of situation which occurred in Harrow, where people found that the house next door had suddenly disappeared and great pressure was placed on them by unscrupulous developers to get out of their own property. I believe that I am right in saying that in such a case it is up to the owner of the remaining property to make the outside wall watertight rather than being the job of the developer who has exposed the wall. That point should also be covered. I am very unhappy with the situation.

I accept that the amendment may be too wide. I understand that this is a very difficult area. One does not want to place more work on the planning authorities, who are already under enormous pressures. In my Second Reading speech I pointed out that they are very short staffed. It will be very difficult to get back some of the more experienced staff, particularly as local authorities are short of cash. None of us, on either side of the Chamber, want to place unnecessary burdens on them, but I believe that planning authorities themselves would like to see such a measure brought in.

If it is a question of reconsidering the amendment and defining it more tightly, I shall accept that. However, it is a matter that we must raise on Report. I hope that noble Lords on the other side of the Chamber will support us. It was two Conservative MPs, representing suburban areas of London, who brought the matter forward in another place. I am sure that the problem occurs in other areas. That in itself should have made some impression on the Government.

While giving notice that I intend to bring the matter back, having consulted further, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 264: Page 100, line 40, at end insert:

1. ("(3A) In paragraph 8(1) after sub-paragraph (c) there is inserted "(d) or any amendment to any application, of which the council of a parish or community has been so informed" and after the words "in writing to the application" there is inserted "and of any amendment thereto".
2. (3B) At the end of paragraph 8(1) there is added "but the authority shall be treated as having satisfied the requirements of this sub-paragraph in any case in which it sends to the council a copy (whether obtained from the applicant or produced by itself) of the application submitted to it and in any case in which such a copy is sent the planning authority shall be entitled to refuse to supply any additional information (other than a copy of any amendment to the application) to the council or to answer any question about the contents of the documents comprising the application".
3. (3C) In paragraph 8(2) after sub-paragraph (b) there is inserted "(c) a local planning authority not to inform the council of a parish or community of any amendment which is insignificant, or has no substantial modifying effect on the application or is unnecessary to be notified to the council by reason of any comments on the application which it has already submitted to the planning authority".").

The noble Lord said: This is a special case in the series of amendments which I have been moving to protect the rights of parish and community councils. The particular complaint that we have received from a number of parish and community councils relates to the fact that they are notified of an application for planning permission but they have no assurance that they will be notified of any amendment to it.

Amendment No. 264 makes two changes which give parish councils the same basic right to be informed of the amendment to an application as of the original application. We do not want there to be useless notification of trivia, so we remove the duty to notify when the amendment is insignificant or is unnecessary because the parish council has covered its scope in its original comments.

I believe that the amendment is in line with the thinking of the Government on the relationship between parish councils and local planning authorities. I hope that it will therefore prove acceptable to Ministers. I beg to move.

Viscount Astor

The amendment represents a logical extension of the statutory requirement for local planning authorities to notify parish or community councils of applications for planning permission. The Government are therefore content to accept the principle of the noble Lord's amendment.

Lord McIntosh of Haringey

I am most grateful.

On Question, amendment agreed to.

7 p.m.

Baroness Blatch moved Amendments Nos. 265 to 269: Page 100, line 41, leave out ("the words") and insert (""serving" there is inserted "planning contravention notices under section 171C or" and after"). Page 101, line 16, leave out ("and"). Page 101, line 22, at end insert: ("(aa) In the entry relating to sections 61 to 64 for "64" there is substituted "63""). Page 101, line 39, at end insert:

("Planning (Consequential Provisions) Act 1990 (c. 11.)

39. In Schedule 3 to the Planning (Consequential Provisions) Act 1990, paragraph 10 is omitted.").

The noble Baroness said: I beg to move Amendments Nos. 265 to 269 en bloc.

On Question, amendments agreed to.

Schedule 6, as amended, agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 270 to 273:

After Schedule 6, insert the following new schedule:

("Mines and waste - Scotland

1. The 1972 Act is amended as follows.

2. In section 27A (aftercare conditions on permission for winning and working of minerals)—

1. (a) in subsection (1) after "minerals" there is inserted "or involving the depositing of refuse or waste materials";
2. (b) in subsection (2) for "operations for the winning and working of minerals have been completed" there is substituted "the winning and working is completed or the depositing has ceased"; and
3. (c) in subsection (18) for the words from "carried out" to "under the land" there is substituted "won and worked minerals or deposited refuse or waste materials".

3. In section 38(3) (circumstances in which general condition limiting duration of planning permission does not apply) for paragraph (bb) there is substituted— (bb) to any planning permission for development consisting of the winning and working of minerals or involving the depositing of mineral waste which is granted (or deemed to be granted) subject to a condition that the development to which it relates must be begun before the expiration of a specified period after—

1. (i) the completion of other development consisting of the winning and working of minerals already being carried out by the applicant for the planning permission; or
2. (ii) the cessation of depositing of mineral waste already being carried out by the applicant for the planning permission;".

4.—(1) In section 41A (limit of duration of planning permission for winning and working of minerals), in subsection (1) for "consisting of the winning and working of minerals" there is substituted "—

1. (a) consisting of the winning and working of minerals; or
2. (b) involving the depositing of mineral waste,".

(2) In subsections (2) and (5) of that section for "development", in both places where it occurs, there is substituted "the winning and working of minerals or the depositing of mineral waste".

(3) In subsections (6) and (7) of that section the words "consisting of the winning and working of minerals" in both places where they occur, are omitted.

5.—(1) Section 49 (discontinuance orders, etc.) is amended as follows.

(2) In subsection (1A), after "minerals" there is inserted "or involving the deposit of refuse or waste materials".

(3) In subsection (1B), for "of minerals" there is substituted "or depositing".

(4) In subsection (1C), after "minerals" there is inserted "or involving the deposit of refuse or waste materials".

(5) For subsection (1E) there is substituted— (1E) An order under this section may grant planning permission for any development of the land to which the order relates, subject to such conditions as may be—

1. (a) required by section 41A of this Act; or
2. (b) specified in the order.".

(6) In subsection (1F), for the words from "before" to "under it" there is substituted "before the development began"; (f) in subsection (7) at the beginning there is inserted "Subject to subsection (7A) of this section,".

(7) After subsection (7) there is inserted— (7A) Subsection (7) of this section does not apply where the order under this section relates to the discontinuance of a use of land consisting of the winning and working of minerals or involving the deposit of refuse or waste materials.".

6.—(1) For subsections (1) to (3) of section 49A (prohibition of resumption of winning and working of minerals) there is substituted— (1) Where it appears to the planning authority—

(a) that development of land—

1. (i) consisting of the winning and working of minerals; or
2. (ii) involving the depositing of mineral waste, has occurred; but

(b) the winning and working or depositing has permanently ceased,

the planning authority may by order—

1. (i) prohibit the resumption of the winning and working or the depositing; and
2. (ii) impose, in relation to the site, any such requirement as is specified in subsection (3) of this section.

(2) The planning authority may assume that the winning and working or the depositing has permanently ceased only when—

1. (a) no winning and working or depositing has occurred, to any substantial extent, at the site for a period of at least two years; and
2. (b) it appears to the planning authority, on the evidence available to them at the time when they make the order, that resumption of the winning and working or the depositing to any substantial extent at the site is unlikely.

(3) The requirements mentioned in subsection (1) of this section are—

1. (a) a requirement to alter or remove plant or machinery which was used for the purpose of the winning and working or the depositing or for any purpose ancillary to that purpose;
2. (b) a requirement to take such steps as may be specified in the order, within such period as may 951 be so specified, for the purpose of removing or alleviating any injury to amenity which has been caused by the winning and working or depositing, other than injury due to subsidence caused by underground mining operations;
3. (c) a requirement that any condition subject to which planning permission for the development was granted or which has been imposed by virtue of any provision of this Act shall be complied with; and
4. (d) a restoration condition."

(2) At the end of subsection (11) of that section there is inserted "or involving the depositing of mineral waste".

7. For subsections (1) to (3) of section 49B (orders after suspension of winning and working of minerals) there is substituted—

"(1) Where it appears to the planning authority—

1. (a) that development of land—
   1. (i) consisting of the winning and working of minerals; or
   2. (ii) involving the depositing of mineral waste,
   has occurred; but
2. (b) the winning and working or depositing has been temporarily suspended,

the planning authority may by order (in this Act referred to as a "suspension order") require that steps be taken for the protection of the environment.

(2) The planning authority may assume that the winning and working or the depositing has been temporarily suspended only when—

1. (a) no such winning and working or depositing has occurred, to any substantial extent, at the site for a period of at least 12 months; but
2. (b) it appears to the planning authority, on the evidence available to them at the time when they make the order, that a resumption of such winning and working or depositing to a substantial extent is likely.

(4) In this Act "steps for the protection of the environment" means steps for the purpose—

1. (a) of preserving the amenities of the area in which the land in, on or under which the development was carried out is situated during the period while the winning and working or the depositing is suspended;
2. (b) of protecting that area from damage during that period; or
3. (c) of preventing any deterioration in the condition of the land during that period.".

8. In section 49F (resumption of winning and working of minerals after suspension order)—

1. (a) in subsection (1), for "in, on or under the land" there is substituted "or involving the depositing of mineral waste at the site";
2. (b) in subsection (2) for "development consisting of the winning and working of minerals" there is substituted "the development";
3. (c) for subsection (3) there is substituted—

"(3) The planning authority shall revoke the order if the winning and working of minerals or the depositing of mineral waste has recommenced to a substantial extent at the site in relation to which the order has effect.";

(d) for subsection (7) there is substituted—

"(7) If the Secretary of State is satisfied that the winning and working of minerals or the depositing of mineral waste has recommenced to a substantial extent at the site in relation to which the order has effect, he shall revoke the order."

9. In sections 100(1) (b) (enforcement of orders under sections 49, 49A and 49B) and 251(1) (power to modify Act in relation to minerals) after "minerals" there is inserted "or involving the depositing of mineral waste".

10.—(1) Section 167A (regulations as to compensation in respect of orders relating to mineral working etc.) is amended as follows.

(2) In subsection (4), at the beginning there is inserted "Subject to subsection (7A) of this section,".

(3) After subsection (7) there is inserted—

"(7A) Regulations made by virtue of subsection (3) (a) of this subsection may provide that where an order is made under—

1. (a) section 42 of this Act modifying planning permission for development involving the depositing of mineral waste; or
2. (b) section 49, 49A or 49B of this Act with respect to such depositing,

sections 153, 159, 167, 226 and 227 of this Act shall have effect subject, in such cases as may be prescribed, to such modifications as may be prescribed.

(7B) Any such regulations as are mentioned in subsection (7A) of this section may make provision—

1. (a) as to circumstances in which compensation is not to be payable;
2. (b) for the modification of the basis on which any amount to be paid by way of compensation is to be assessed;
3. (c) for the assessment of any such amount on a basis different from that on which it would otherwise have been assessed,

and may also make different provision for different cases and incidental or supplementary provision."

(4) In subsection (10) for "have effect until" there is substituted "be made unless a draft of the regulations is laid before and".

(5) In subsection (11) "or bodies of persons" is omitted.

11.—(1) In section 251A(1) (duty of planning authorities to review mineral workings) for the words from "site" where it first occurs to the end there is substituted "mining site in their area; and (b) to consider whether they should make an order under section 42, 49, 49A or 49B of this Act, and if they do consider that they should make any such order, to make it.

(2) For subsection (2) of that section there is substituted—

"(2) For the purposes of subsection (1) "a mining site" means a site which

1. (a) is being used for the winning and working of minerals or the depositing of mineral waste;
2. (b) has been so used at any time during—
   1. (i) the period of five years preceding the date of the beginning of the review; or
   2. (ii) such other period preceding that date as may be prescribed; or
3. (c) is authorised to be so used."

12. In section 275(1) (interpretation}—

1. (a) in the definition of "buildings and works" for "or construction" there is substituted "construction, carrying out or demolition";"
2. (b) after the definition of "conservation area" there is inserted—

""depositing of mineral waste" means any process whereby a mineral-working deposit is created or enlarged and "depositing of refuse or waste materials" includes the depositing of mineral waste;

(c) the definition of "development consisting of the winning and working of minerals" is omitted;

(d) in the definition of "minerals" for "minerals and substances in or under land" there is substituted "substances"; and

(e) at the end there is inserted—

""the winning and working of minerals" includes the extraction of minerals from a mineral working deposit."").

After Schedule 6 insert the following new Schedule—

("Listed buildings, conservation areas and hazardous substances:

Scotland.

The 1972 Act

1. The 1972 Act is amended as follows.

2. For section 53(5) (offences: penalties) there is substituted— (5) A person who is guilty of an offence under this section shall be liable—

1. (a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000, or both; or
2. (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both."

3. In section 56L(4) (offences)—

1. (a) for "the statutory maximum" there is substituted "£20,000"; and
2. (b) for the words following paragraph (b) there is substituted—

"(4A) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence."

4. In section 92, (power to serve listed buildings enforcement notice), for subsection (4) there is substituted— (4) A listed building enforcement notice shall specify the date upon which it is to take effect, being a date not less than twenty-eight days after the latest service thereof under subsection (3) of this section.".

5. After section 92 there is inserted—

"Variation and withdrawal of listed building enforcement

notices

92A.—(1) A planning authority—

1. (a) may waive or relax any requirement of a listed building, enforcement notice issued by them and, in particular, may extend the period specified in accordance with section 92(1)(c) of this Act in the notice; or
2. (b) if it appears to them that such a notice no longer serves any useful purpose, may withdraw it.

(2) The powers conferred by subsection (1) of this section may be exercised after the notice takes effect and those conferred by paragraph (a) of that subsection may also be exercised before the notice takes effect.

(3) Those powers shall not be exercised unless the authority—

1. (a) have given notice of their proposal to every person who has been served with a copy of the listed building enforcement notice or would, if the notice were re-issued, be served with a copy of it; and
2. (b) have considered any representations made to them, within the period of 21 days beginning with the date of service, by any of the persons served with notice of their proposal.

(4) The planning authority shall, immediately after exercising those powers, give notice of the exercise to every person to whom they gave notice of their proposal.

(5) The withdrawal of a listed building enforcement notice does not affect the power of the planning authority to issue a further listed building enforcement notice."

6.—(1) Section 93 (appeals) is amended as follows.

(2) In subsection (1)—

(a) for paragraph (b) there is substituted—

"(b) that the matters alleged to constitute a contravention of section 53(1) or (4) of this Act have not occured;

(ba) that those matters (if they occurred) do not constitute such a contravention;"; and

(b) paragraph (k) is omitted.

(3) For subsection (2) of that section there is substituted—

"(2) An appeal under this section shall be made either—

1. (a) by giving written notice of the appeal to the Secretary of State before the date specified in the listed building enforcement notice as the date on which it is to take effect; or
2. (b) by sending such notice to him in a properly addressed and pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date."

(4) In subsection (4) (power to correct notice on appeal), for paragraph (a) there is substituted— (a) the Secretary of State may—

1. (i) correct any defect, error or misdescription in the listed building enforcement notice; or
2. (ii) vary the terms of the listed building enforcement notice,

if he is satisfied that the correction or variation will not cause injustice to the appellant or the planning authority.

(5) In subsection (5), the words "or for varying the terms of the notice in favour of the appellant" are omitted. 7. For section 94 (penalties for non-compliance with listed building enforcement notice) there is substituted—

"Offence where listed building enforcement notice

not complied with.

94.—(1) Where, after the end of the compliance period, any step required by a listed building enforcement notice to be taken has not been taken, the person who is for the time being owner of the land is in breach of the duty under this subsection.

(2) If at any time the owner of the land is in breach of a listed building enforcement notice he shall be guilty of an offence.

(3) An offence under this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this section by reference to any period of time following the preceding conviction for such an offence.

(4) In proceedings against any person for an offence under this section, it shall be a defence for him to show—

1. (a) that he did everything he could be expected to do to secure that all the steps required by the notice were taken; or
2. (b) that he was not served with a copy of the listed building enforcement notice and was not aware of its existence.

(5) A person guilty of an offence under this section shall be liable—

1. (a) on summary conviction, to a fine not exceeding £20,000; and
2. (b) on conviction on indictment, to a fine.

(6) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence."

8. In section 95 (execution and cost of works required by listed building enforcement notice), at the end there is inserted— (4) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) of this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

9.—(1) In section 97B (power to issue hazardous substances contravention notice)—

1. (a) in subsection (3)(b) after "remedy" there is inserted "wholly or partly", and
2. (b)in subsection (8) after "before" there is inserted "or after", and
3. (c) at the end of subsection (9) there is inserted "or would, if the notice were re-issued, be served with a copy of it".

10. After section 97A there is inserted—

"Further provision as to rights of entry in relation to listed buildings

97AB.—(1) The provisions of this section and of section 97AC of this Act shall apply, in place of the provisions of section 266 of this Act, to rights of entry exercised under section 265 of this Act in relation to listed buildings and listed buildings control.

(2) If it is shown to the satisfaction of a justice of the peace on information on oath—

1. (a) that there are reasonable grounds for entering any land for any of the purposes mentioned in section 265 of this Act; and
2. (b) that—
   1. (i) admission to the land has been refused, or a refusal is reasonably apprehended; or
   2. (ii) the case is one of urgency,
   the justice may issue a warrant authorising any person duly authorised in writing to enter the land.

(3) For the purposes of subsection (1)(b)(i) of this section admission to land shall be regarded as having been refused if no reply is received to a request for admission within a reasonable period.

(4) A warrant authorises entry on one occasion only and that entry must be—

1. (a) within one month from the date of the issue of the warrant; and
2. (b) at a reasonable hour, unless the case is one of urgency.

Rights of entry in relation to listed buildings:

supplementary provisions

97AC.—(1) Subject to subsection (2) of this section, a person authorised to enter any land in pursuance of a right of entry conferred under or by virtue of section 265 or 97AB of this Act (referred to in this section as "a right of entry"—

1. (a) shall, if so required, produce evidence of his authority before so entering;
2. (b) may take with him such other persons as may be necessary; and
3. (c) on leaving the land shall, if the owner or occupier is not then present, leave it as effectively secured against trespassers as he found it.

(2) Admission to any land which is occupied shall not be demanded as of right by virtue of section 265 of this section unless 24 hours' notice of the intended entry has been given to the occupier of the land.

(3) Any person who wilfully obstructs a person acting in the exercise of a right of entry shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) If any land is damaged in the exercise of a right of entry, compensation in respect of that damage may be recovered by any person interested in the land from the person who gave the written authority for the entry.

(5) If any person who enters any land, in exercise of a right of entry, discloses to any person any information obtained by him while on the land as to any manufacturing process or trade secret, he shall be guilty of an offence.

(6) Subsection (5) does not apply if the disclosure is made by a person in the course of performing his duty in connection with the purpose for which he was authorised to enter the land.

(7) A person who is guilty of an offence under subsection (5) shall be liable on summary conviction to a fine not exceeding the statutory maximum or on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both.

(8) No person shall carry out any works in exercise of a power conferred under section 97 of this Act unless notice of his intention to do so was included in the notice required by subsection (2) of this section.

(9) The authority of the appropriate Minister shall be required for the carrying out of works in exercise of a power conferred under section 97 of this Act if—

1. (a) the land in question is held by statutory undertakers; and
2. (b) they object to the proposed works on the ground that the execution of the works would be seriously detrimental to the carrying on of their undertaking.

(10) Section 213(1) of this Act applies for the purposes of subsection (8) of this section as it applies for the purposes of section 266(6)(b) of this Act."

11. After section 97B ther is inserted—

"VAriation of hazardous substances contravention

notices.

97BA.—(1) A planning authority may waive or relax any requirement of a hazardous substances contravention notice issued by them and, in particular, may extend any period specified in accordance with section 97B(5)(b) of this Act in the notice.

(2) The powers conferred by subsection (1) of this section may be exercised before or after the notice takes effect.

(3) Those powers shall not be exercised unless the authority—

1. (a) have given notice of their proposal to every person who has been served with a copy of the hazardous substances contravention notice or would, if the notice were re-issued, be served with a copy of it; and
2. (b) have considered any representations made to them, within the period of 21 days beginning with the date of service, by any of the persons served with notice of their proposal.

(4) The planning authority shall, immediately after exercising those powers, give notice of the exercise to every person to whom they gave notice of their proposal.

Further provision as to rights of entry in relation to

hazardous substances control

97BB.— (1) The provisions of this section and of section 97BC of this Act apply, in place of the provisions of section 266 of this Act, to rights of entry exercised under section 265 of this Act in relation to applications for hazardous substances consent and hazardous substances control.

(2) If it is shown to the satisfaction of a justice of the peace on information on oath—

1. (a) that there are reasonable grounds for entering any land for any of the purposes mentioned in section 265 of this Act; and
2. (b) that—
   1. (i) admission to the land has been refused, or a refusal is reasonably apprehended; or
   957
   2. (ii) the case is one of urgency,
   the justice may issue a warrant authorising any person duly authorised in writing to enter the land.

(2) For the purposes of subsection (1)(b)(i) of this section admission to land shall be regarded as having been refused if no reply is received to a request for admission within a reasonable period.

(3) A warrant authorises entry on one occasion only and that entry must be—

1. (a) within one month from the date of the issue of the warrant; and
2. (b) at a reasonable hour, unless the case is one of urgency.

Rights of entry in relation to hazardous substances control: supplementary provisions.

97BC.—(1) A person authorised to enter any land in pursuance of a right of entry conferred under or by virtue of section 265 or 97BB of this Act (referred to in this section as "a right of entry")—

1. (a) shall, if so required, produce evidence of his authority before so entering;
2. (b) may take with him such other persons as may be necessary; and
3. (c) on leaving the land shall, if the owner or occupier is not then present, leave it as effectivly secured against trespassers as he found it.

(2) Any person who wilfully obstructs a person acting in the exercise of a right of entry shall be guilty of an offence and liable on summary convinction to a fine not exceeding level 3 on the standard scale.

(3) If any land is damaged in the exercise of a right of entry, compensation in respect of the damage may be recovered by any person interested in the land from the person who gave the written authority for the entry.

(4) If any person who enters any land, in exercise of a right of entry, discloses to any person any information obtained by him while on the land as to any manufacturing process or trade secret, he shall be guilty of an offence.

(5) Subsection (4) does not apply if the disclosure is made by a person in the course of performing his duty in connection with the purpose for which he was authorised to enter the land.

(6) A person who is guilty of an offence under subsection (4) shall be liable on summary conviction to a fine not exceeding the statutory maximum or on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both.

(7) The authority of the appropriate Minister shall be required for the carrying out of works in exercise of a power conferred under section 265(8) of this Act if—

1. (a) the land in question is held by statutory undertakers; and
2. (b) they object to the proposed works on the ground that the execution of the works would be seriously detrimental to the carrying on of their undertaking.

(8) Section 213(1) of this Act applies for the purposes of subsection (7) of this section as it applies for the purposes of section 266(6)(b) of this Act."

Local Government, Planning and Land Act 1980 (c. 65.)

12. In Part I of Schedule 30 to the Local Government, Planning and Land Act 1980, the following is inserted at the appropriate place among the provisions there listed: 92A; 97AB.")

After Schedule 6, insert the following new schedule—

("Simplified Planning Zones - Scotland

Part I

Modification of procedure for making or altering schemes

Procedure before and after deposit of proposals

1. In Schedule 6A to the 1972 Act (simplified planning zones) for paragraphs 5 and 6 there is substituted—

"Steps to be taken before depositing proposals

5.—(1) A planning authority proposing to make or alter a simplified planning zone scheme shall, before determining the content of their proposals, comply with this paragraph.

(2) They shall—

1. (a) consult—
   1. (i) the Secretary of State; and
   2. (ii) any local roads authority in whose area the proposed zone or any part of it lies,
   as to the effect any proposals they may make might have on existing or future roads; and
2. (b) consult or notify such persons as regulations may require them to consult or, as the case may be, notify.

(3) They shall take such steps as may be prescribed, or as the Secretary of State may in a particular case direct, to publicise—

1. (a) the fact that they propose to make or alter a simplified planning zone scheme, and
2. (b) the matters which they are considering including in the proposals.

(4) They shall consider any representations that are made in accordance with regulations.

Procedure after deposit of proposals

6. Where a planning authority have prepared a proposed simplified planning zone scheme, or proposed alterations to a simplified planning zone scheme, they shall—

1. (a) make copies of the proposed scheme or alterations available for inspection at such places as may be prescribed;
2. (b) take such steps as may be prescribed for the purpose of advertising the fact that the proposed scheme or alterations are so available and the places at which, and times during which, they may be inspected;
3. (c) take such steps as may be prescribed for inviting representations or objections to be made within such period as may be prescribed; and
4. (d) send a copy of the proposed scheme or alterations to the Secretary of State and to any local roads authority whom they have consulted under paragraph 5(2) (a) of this Schedule."

Dealing with objections, etc.

2.—(1) For paragraph 7(1) to (3) (objections: local inquiry or other hearing) there is substituted—

"Procedure for dealing with objections

7.—(1) Where objections to the proposed scheme or alterations are made, the planning authority may—

1. (a) for the purpose of considering the objections, cause a local inquiry or other hearing to be held by a person appointed by the Secretary of State or, in such cases as may be prescribed, appointed by the authority, or
2. (b) require the objections to be considered by a person appointed by the Secretary of State.

(2) A planning authority shall exercise the power under sub-paragraph (1), or paragraph (a) or (b) of that sub-paragraph, if directed to do so by the Secretary of State."

(2) For paragraph 10(3) and (4) (consideration of objections, etc., by Secretary of State) there is substituted—

"(3) Where on taking the proposals into consideration the Secretary of State does not determine then to reject them he shall, before determining whether or not to approve them, consider any objections made in accordance with regulations (and not withdrawn) except objections which—

1. (a) have already been considered by the planning authority or by a person appointed by the Secretary of State, or
2. (b) have already been considered at a local inquiry or other hearing.

(4) The Secretary of State may—

1. (a) for the purpose of considering any objections and the views of the planning authority and of such other persons as he thinks fit, cause a local inquiry or other hearing to be held by a person appointed by him, or
2. (b) require such objections and views to be considered by a person appointed by him.

(5) In considering the proposals the Secretary of State may consult with, or consider the views of, any planning authority or any other person; but he need not do so, or give an opportunity for the making or consideration of representations or objections, except so far as he is required to do so by sub-paragraph (3) of this paragraph."