Lords Sitting of 19 February 1991

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

Lord Laing of Dunphail
Sir Hector Laing, Knight, having been created Baron Laing of Dunphail, of Dunphail in the District of Moray, for life—Was, in his robes, introduced between the Lord Richardson of Duntisbourne and the Lord Prior.
Baroness James of Holland Park
Phyllis Dorothy James, Mrs. White, OBE, having been created Baroness James of Holland Park, of Southwold in the County of Suffolk, for life—Was, in her robes, introduced between the Baroness Blatch and the Lord Butterfield.

Radiation Sickness Treatments: Funding
2.58 p.m.
Lord Hunter of Newington Lord Hunter of Newington asked Her Majesty's Government:
Whether they will make financial provision for new treatments for radiation sickness.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, the Government have consistently increased resources to the National Health Service, and escalating costs reflect the fact that new treatments are taken into account. Sickness as a result of radiation is encountered during some radiotherapy treatments. We are aware that several new products are emerging but there are also well-established drug regimes to cope with many of the cases.
Lord Hunter of Newington: My Lords, I thank the Minister for that Answer. Do the Government think that there should be a procedure in these matters which is known to the medical profession and to the patients? It is evident that in recent months there has been a great deal of publicity on the subject and such a procedure might be important. Will the Minister say whether there is a role here for the Director of Research and Development?
Baroness Hooper: My Lords, we have taken the view that decisions on patient services must be taken at a local level. One of the main principles of the White Paper, Working for Patients, is that decisions about patient services should be taken locally in the light of local assessment of health care needs. Any form of central fund for drugs, advice about drugs or any central prescription on drugs would pre-empt local decisions. It may well be that there is a role here for the newly appointed Director of Research and Development.
Baroness Carnegy of Lour: My Lords, are the Government satisfied that the medical research ethics committees across the country take proper account of possible extra radiation to which patients may be subjected, beyond that which their normal treatment would require?
Baroness Hooper: My Lords, my noble friend asks a most important question. There is no doubt that local ethical committees are a suitable vehicle for taking extra radiation into account. I shall investigate how widespread the practice is.
Lord Ennals: My Lords, bearing in mind how disturbing radiation sickness can be—the Minister's noble friend mentioned that—will the Minister give the House any information she has about any new treatments that are being developed? I heard recently that an interesting development was taking place at the Christie Hospital. Will the Minister give an assurance that no treatments will be held up for financial reasons?
Baroness Hooper: My Lords, new anti-emetic drugs have recently been licensed, or are still undergoing clinical trials. One example is Ondansetron which vats first marketed in April and May 1990. That drug treats the side effects of radio-therapy treatment. Another drug is Granisetron which has been developed to combat similar symptoms. That drug is still undergoing clinical trials.
Lord Bruce of Donington: My Lords, on the basis that it is still a characteristic of the National Health Service to refuse to accept any governmental or outside interference as regards clinical advice and the prescriptions recommended by qualified medical or consultant practitioners, will the Minister say whether, in the event of a new form of treatment being clinically recommended, the Government reserve the right to withhold financial provision for that treatment, or to tolerate local or regional interference in a clinical decision?
Baroness Hooper: My Lords, I believe the noble Lord agreed with me that these are matters for local rather than central prescription. I repeat that individual doctors are free to prescribe what they consider to be the most appropriate drugs for their patients, taking account of local arrangements and protocols drawn up by the hospital committee of senior doctors and managers which is accountable for health care priorities in a particular district. This is a matter for clinical judgment.
Lord Bruce of Donington: My Lords, are we to take it from that reply that, in making a prescription for a particular treatment, a clinical practitioner must take into account—I use the Minister's own words—non-clinical, managerial or financial advice?
Baroness Hooper: My Lords, there are a wide number of considerations to be taken into account.
Lord Dean of Beswick: My Lords, do the Government maintain a constant vigilance over new industrial processes to monitor whether increased radiation is being emitted from them? Would the Government take any necessary measures to try to keep such radiation to an absolute minimum?
Baroness Hooper: Yes, my Lords.

Channel Tunnel: Safety
3.5 p.m.
Lord Underhill Lord Underhill asked Her Majesty's Government:
What reports they have received from the Channel Tunnel Safety Authority on the commissioning and completion by Eurotunnel of the essential safety tests proposed in Annex C of the authority's March 1990 report Non-segregation of drivers and passengers from their vehicles.
The Minister of State, Department of Transport (Lord Brabazon of Tara): My Lords, construction and operation of the Channel Tunnel are supervised by an intergovernmental commission on behalf of the UK and French Governments. I understand that although safety authority reports have yet to be received, tests of the shuttle wagon's smoke extraction and purging systems during loading have been carried out. Eurotunnel plans to undertake fire detection and suppression tests in the next few months. Other tests, studies and analyses will be undertaken as design and construction progress and realistic test conditions become available.
Lord Underhill: My Lords, I thank the Minister for that reply. But does he appreciate that the report of the safety authority to the intergovernmental commission was published as far back as March 1990? Is there any reason why the report of the tests has not already been submitted? Will the Minister give the House an assurance that the tests have been carried out and that the report will be widely published? Many people such as myself who were in favour of the Channel Tunnel project have been concerned about segregation.
Lord Brabazon of Tara: My Lords, as I indicated in my original Answer, tests have been carried out. Further tests will need to be carried out. As the noble Lord said, the safety authority has published one annual report and will soon publish another. I can assure the House that all the considerations that the safety authority lists will need to be taken into account.
Lord Underhill: My Lords, I apologise for rising again. However, does that mean that certain matters are proceeding now, even though these essential tests have not been completed?
Lord Brabazon of Tara: My Lords, the tests are an ongoing matter. Further tests are required and they will have to be carried out.
Lord Teviot: My Lords, as regards the segregation of passengers, I believe it is much better that people accompany their vehicles. The Swiss have followed that policy for a long time, and they are known for their safety consciousness.
Lord Brabazon of Tara: My Lords, the segregation of passengers has been extensively debated. During debates on the Bill both Houses accepted that non-segregation would have to be further considered by the safety authority as design developed, and that is what is happening.
Viscount Cross: My Lords, in view of the fact that concern has been expressed both in and outside the House on non-segregation, will my noble friend consider segregation for the first year of the operation of the Channel Tunnel and then review the situation?
Lord Brabazon of Tara: No, my Lords.

Hill Farmers: Compensation
3.8 p.m.
Viscount Massereene and Ferrard Viscount Massereene and Ferrard asked Her Majesty's Government:
What action they are taking to prevent hardship among Scottish hill farmers following the fall in the price of store lambs by over 50 per cent. since 1989.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Strathclyde): My Lords, on 12th February the Government announced an increase in hill livestock compensatory allowances. This will provide a welcome boost of £7 million to Scottish hill farmers. In addition sheep farmers in the hills and uplands will benefit from the green pound devaluation agreed last year which has raised the guide price for sheepmeat by over 12 per cent. from January this year and from the new supplement of 4 ecu payable with the sheep annual premium from this summer to farmers in the less favoured areas.
Viscount Massereene and Ferrard: My Lords, I thank my noble friend for that satisfactory Answer. I have been away for a while and I did not realise that that was the situation. I hope I may ask my noble friend a question although I have not given him prior notice of it. Therefore I do not expect him to answer me. I wish to draw attention to the prices that butchers are now charging for lamb. I believe that the public are being overcharged. There was a slump in 1989–90 in the price of lamb. However, butchers are charging the public the same price now as they did before the slump.
Lord Strathclyde: My Lords, I fully understand the point that my noble friend has made. I am aware that there is substantial concern that the retail market has not lowered the price charged to the consumer in line with that being paid to the hill farmer. The retail sector is a very competitive market and reacts to market forces.
Lord Grimond: My Lords, while the Government's proposals are extremely welcome, will they bear in mind that they do not make up for what has happened to small farmers in the past year or two? Have they noticed that many people in this country who do far less for the economy than small farmers have received salary and wage increases far in excess of inflation? Are the Government aware that small farmers last year suffered an increase in costs of at least 15 per cent. and a decrease in the prices they receive for their products of at least 15 per cent.?
Lord Strathclyde: My Lords, I am aware of the situation in the hills and the uplands and the islands. The Government have not been sitting on their hands and doing nothing. Apart from the increase in the HLCA payments, we raised the level of the suckler

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cow premium to its maximum amount in the LFAs. We also brought forward payment of the sheep annual premium. To cap that, since April last year £270 million has been spent on intervention in the beef price. We are all concerned about the hill farmer, and the Government are doing their bit.
Lord Carmichael of Kelvingrove: My Lords, on the question of competition and the consumer, competition does not seem to be working. Does the Minister's department have any mechanism for recording prices paid by the consumer? Is there any mechanism by which the hill farmer can be made aware that he should perhaps get more money from the consumer and should hold out until he gets it? Is the Minister aware that many of the consumers are big buyers and are monopolistic?
Lord Strathclyde: My Lords, I do not accept that most people believe that the retail sector is essentially monopolistic. I am very glad to tell the House that the NFU in Scotland is launching a quality lamb assured scheme on the farm which will raise the quality of lamb sold to the consumer. The scheme will provide exactly what the consumer wants and will almost certainly attract a premium price. That will be of direct benefit to the hill farmer.
Lord Cledwyn of Penrhos: My Lords, I apologise for taking the noble Lord marginally outside his brief, but is he aware that hill and sheep farmers in Wales have suffered considerably over the past two years? Will the benefits which are now to come to Scottish sheep farmers also accrue to Welsh sheep farmers?
Lord Strathclyde: My Lords, the hill livestock compensatory allowance scheme is a UK measure for the less favoured areas, which include a large part of Wales.
Lord Parry: My Lords, the House will hear that with great relief. Is the Minister aware that the difficulties faced by hill farmers in Wales have been compounded not only by the common agricultural policy of the EC but by the specific problem arising from the very heavy fall out from Chernobyl? Is he aware that that has affected the income of sheep farmers on the small hill farms of Wales specifically over the same period as they have suffered from the general economic decline?
Lord Strathclyde: My Lords, I am aware of that. Some farms in Scotland have also been affected. Compensation was provided and as each year goes by the problem decreases.

The Postal Code
3.16 p.m.
Lord Nugent of Guildford Lord Nugent of Guildford asked Her Majesty's Government:
What plans the Post Office has to complete universal application of the postal code.
The Minister of State, Department of Trade and Industry (Lord Hesketh): My Lords, this is an operational matter for the Post Office. However, I understand that the post-coding of every address in
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the United Kingdom was completed in 1974. I understand that the level of post-code usage for mail posted in the United Kingdom has now risen to 79.9 per cent.
Lord Nugent of Guildford: My Lords, I thank my noble friend for that report on progress. However, is he aware that the use of the postal code is a great labour saver in the laborious business of postal sorting and that therefore the gap between 79 per cent. and 100 per cent. usage needs to be closed as soon as possible? Does he agree that it could be closed by including the postal code in all telephone books? Can my noble friend say why the Post Office did not arrange for the new telephone books which we have all just received to include postal codes?
Lord Hesketh: My Lords, I was under the impression that the telephone books carried postal codes. If my noble friend is correct I shall certainly inquire into the matter and communicate with him immediately. Under the 1969 Act the Post Office has a statutory duty to accept all reasonable demands for a letter service in the United Kingdom, which does not include the postal code. In the United Kingdom it is possible to obtain postal codes from Crown Post Offices and public libraries. However, that is not a facility that is available for foreign mall coming into the United Kingdom and the Post Office will have to retain the ability to accept non-post-coded mail for that part of its business.
Lord Nugent of Guildford: My Lords, is my noble friend aware that, although his answer provides an explanation, it gives no comfort to postal users —which is all of us—who have to pay more and more every year for stamps?
Lord Hesketh: My Lords, I fully appreciate the concern of my noble friend, particularly as the postal code—unlike postal codes in many other countries which direct mail only to a post office—is designed to achieve a division of mail by automatic sorting into the area of a postman's round. He is thus correct to say that we should have the most efficient postal delivery system in the world.
Lord Bruce of Donington: My Lords, in view of the cost advantages which accrue to the Post Office when the postal code is used in terms of speed of handling, is the noble Lord prepared to consider a lower price for postage stamps for all those in the United Kingdom who use the postal code?
Lord Hesketh: My Lords, I am afraid that I am not in the position of power which the noble Lord, Lord Bruce, suggests. However, I shall certainly bring his suggestion to the attention of the chairman of the Post Office.
Baroness Oppenheim-Barnes: My Lords, is my noble friend aware that the millions of people who address their envelopes by hand and laboriously add the postal code do so only to have it rejected by the sorting machines, which do not accept handwritten postal codes? Can he say when that anomaly is likely to be corrected?
Lord Hesketh: My Lords, I am filled with trepidation at taking issue with my noble friend, but I believe that the sorting machines accept handwritten postal codes.
Lord Williams of Elvel: My Lords, can the noble Lord give the House an idea of the average delay in delivery of first-class letters which are not post-coded compared with those which are post-coded?
Lord Hesketh: My Lords, the figures which I have do not distinguish between post-coded and non-post-coded mail. However, I am sure that your Lordships will be encouraged to know that the most recent figures show that there has been an overall improvement of 3.6 per cent. in the effectiveness of the delivery of first-class mail.
Lord Jenkins of Hillhead: My Lords, is the noble Lord aware that the noble Baroness, Lady Oppenheim-Barnes, has sown great confusion in my mind? Is it not worthwhile putting the post code on an envelope if one is writing the address by hand?
Lord Hesketh: My Lords, I am under the impression that the noble Lord, Lord Jenkins of Hillhead, is correct in thinking that all of your Lordships will benefit in terms of both speed of delivery and receipt of documents if they place the postal code upon their missives.
Lord Williams of Elvel: My Lords, is it not a question of the clarity of the noble Lords' handwriting?
Lord Hesketh: My Lords, I wrote my own postal code on the top of my brief. I can read it and I hope very much that a machine could also read it.
Lady Saltoun of Abernethy: My Lords, is my noble friend aware that I once addressed a letter to a Member of your Lordships' House by hand, writing on the envelope only his name and the postal code, and the letter arrived first thing the following morning?
Lord Hesketh: My Lords, I think that it would be fair to describe that as a ringing endorsement of the code.
The Earl of Selkirk: My Lords, can the Minister confirm that the Post Office intends to continue putting on its stamps a number rather than a price? At the moment it is very confusing when posting letters abroad or sending parcels. Does he agree that it would be much simpler if the price were known?
Lord Hesketh: My Lords, I feel that this question is slightly wide of the Question which stands on the Order Paper.

Planning and Compensation Bill [H.L.]
3.20 p.m.
Report received.
Lord Norrie Lord Norrie moved Amendment No. 1:
Before Clause 1, insert the following new clause:
("Assessment of environmental effects
.—(1) The Secretary of State may make regulations for the purposes of requiring the assessment of the likely significant effects on the environment of any development for which planning permission is required under the provisions of the principal Act.
(2) Without prejudice to the generality of subsection (1) regulations may—

(a) specify classes of development for which an assessment of the likely significant effects on the environment shall or may be required;

(b) specify the information which shall be supplied with any application for planning permission for which assessment is required;

(c) specify procedures to be followed in connection with the assessment.

(3) Regulations under subsections (1) and (2) above may be made—

(a) for the purposes of ensuring the implementation of any obligations of the United Kingdom under the Community Treaties or international agreement to which the United Kingdom is for the time being a party; or

(b) as the Secretary of State considers necessary to ensure that where a development is likely to have significant effects on the environment planning permission shall not be granted unless those effects have been taken into consideration.").

The noble Lord said: My Lords, before I explain the purpose of the amendment, I should like to thank my noble friend Lady Blatch for her courtesy and willingness to agree to meet the noble Lords, Lord Nathan, Lord Renton and myself before the Committee and Report stages of the Bill.
Environmental assessment—or EA—was one of the points discussed. I know that the noble Baroness appreciates a number of our anxieties about it and I hope that she will be in a position to respond positively today to this amendment. Following her helpful comments at Committee stage, I brought forward this limited amendment to deal specifically with the problem of development projects which fall outside the scope of the European directive on environmental assessment. Even though the total number of projects is fairly small, this is still a very important issue.
The directive on EA is at present implemented in the United Kingdom through regulations made under the European Communities Act 1972. While they implement the directive so far as concerns town and country planning projects, they are restricted purely to those projects listed in the directive. Not surprisingly, the directive does not contain a comprehensive list of projects which might have significant effects on the environment. I have already raised in Committee the example of potable or drinking water treatment plants which do not appear on the lists, although waste water treatment plants do appear.
There will inevitably be some classes of project which are likely to have a significant impact on the environment but have, for whatever reason, been omitted from the directive. Therefore it is important that the Secretary of State for the Environment should have the power to require an environmental assessment for such projects. Under the present

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regulations, he has no power to require such an EA. The Secretary of State needs such powers under primary legislation.
Article 13 of the directive allows member states to lay down stricter rules for environmental assessment if they so wish. It is not just drinking water treatment plants which evade the system. At present the Government are unable to require EAs for inland and freshwater fish farms because of a mistranslation in the directive which resulted in the English version referring to salmon instead of salmon in fish farms, which would have included trout. If there were provision in primary legislation, the Secretary of State could require EA for trout farms as originally anticipated by the directive. Without such a power we have to wait for years for amendment of the directive by the European Commission.
There are other ambiguities in the definitions of the projects listed which could be clarified by the Government if EA appeared in primary legislation. For instance, what is an urban development project? It is not always clear whether that includes a project such as a major housing development in a rural area, yet there is no other appropriate category into which that apparently falls.
The new clause would achieve three main objectives. The first would plug the loophole through which slip some categories of project by allowing the Secretary of State to specify the classes of development for which an EA shall or may be required. The second objective would allow the Secretary of State to apply EA to classes of project which may come to light in the future as having significant effects on the environment. It is surely right that the Government should have that discretion. At present they are quite powerless to rectify anomalies or ambiguities. The third objective relates to a matter of particular concern; namely, that the planning legislation is at present incomplete without such an amendment.
I believe that the Government and this House recognise the important role that EA has to play in our planning system. That is now widely accepted, yet not one reference to EA is to be found in any of the planning statutes. This Bill is the best opportunity that we now have to correct that situation.
This clause does not set onerous duties on the Government. It will not create burdens or delay for developers. It will not create a bureaucratic nightmare. It will ensure that EA is given its proper place in legislation and that those projects which are likely to have significant effects on the environment can be subjected to an assessment of what those effects are likely to be. We all agree on the value of EA and that it should be firmly placed in primary legislation. This amendment would go some small way to achieve that. I beg to move.
The Earl of Radnor: My Lords, perhaps I may just make a short intervention about the directive from the Community which relates to salmon and the salmonids. I wonder whether my noble friend can
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assure the House that there was in point of fact a mistake in translation and it was not intended that trout farmers should be left out.
Lord Nathan: My Lords, I support this amendment for the reasons given by the noble Lord, Lord Norrie. It might be regarded as quixotic for so central an element in any planning regime to be introduced into English law under the European Communities Act and not in any way be in the planning legislation. One might be entitled to ask why that is so.
I was a member of the environmental subcommittee—Sub-committee G of the Select Committee on the European Communities of your Lordships' House—at the time that this directive was under consideration. We were in a very small minority perhaps among your Lordships—certainly among the population as a whole—in thinking that environmental assessment would be most warmly welcomed as one of the instruments by which planning could be made effective. There was objection on the ground that we had much the best planning legislation in the European Community. Why therefore should we submit to having imposed upon us in this country a novel idea which advanced us not at all?
I believe that it was because of that general feeling of opposition to the notion of environmental assessment that the measure was hived off as a regulation under the European Communities Act rather than put in the planning legislation. Since then there has been a radical change of view. In relation to the total number of environmental statements that are made, quite large numbers of them in full form are made voluntarily. It was felt by the developer—a year or two ago it was the Coal Board or the National Grid; whichever organisation it is will do it voluntarily —that it was a way of getting across what the environmental impact would be and thus to acquire public support and the support of the appropriate authorities.
I suggest that the mood has entirely changed. Environmental assessment is now regarded as a prime element in the planning regime. That may have been helped by increasing concern about environmental matters. It is now even more extraordinary that there should be no provision for environmental assessment in our planning legislation. For the very reasons given by the noble Lord, Lord Norrie, regarding defects, in my humble opinion the amendment should be strongly supported.
Baroness Nicol: My Lords, we on these Benches also strongly support the amendment. At present there is no room for further development of environmental assessment within the United Kingdom's regulations under the EC legislation. We can implement only the strict letter of the directive. If we accept—as I am sure we all now do—the spirit of the directive we must have powers for a flexible approach.
There is little that I can add to the comprehensive cover of the subject by the noble Lord, Lord Norrie. The wording of the directive is sometimes ambiguous. We cannot foresee all the possible pressures that may

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arise in the future. I believe that the amendment is necessary. I hope that the noble Baroness will have had second thoughts since the Committee stage.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My Lords, once again I congratulate my noble friend for putting environmental assessment at the top of our agenda for debates on this Bill.
My noble friend's amendment would extend the coverage of the existing environmental assessment provisions to projects which could have significant adverse environmental effects but which are not included in Annexes I or II to European Communities Directive 85/337. I have some sympathy with this objective. There could be some projects not covered by the directive which are likely to have environmental effects so that if they were so covered they would have to be subject to the environmental assessment requirements of the directive. But the question remains whether this Bill should make any provision for such projects to be subject to EA if approval for them is sought through the planning system.
As I said during the Committee stage debate, the planning system has for many years provided a very effective means for ensuring that all material considerations, including environmental ones, are taken into account in the decision-making process. In view of this, and in view of the very full coverage of the European Community directive, this amendment would clearly have only a modest effect and there is certainly a case to be made for arguing that an extension to the number of projects which need to be subject to EA is therefore unnecessary. A further consideration is that we should perhaps move forward together with the rest of the Community in this field —though I acknowledge that the directive itself specifically authorises member states,
"to lay down stricter rules regarding scope and procedure when assessing environmental effects".
The case for an extension to coverage of the environmental assessment provisions is therefore not an open-and-shut one but it is certainly a case that requires consideration. I can assure my noble friend that we are giving urgent thought to this proposal. It requires consultation with a number of other government departments and that is one reason why I am unable to give a definitive response one way or the other today.
I was asked a specific question by my noble friend Lord Radnor. With reference to "salmon" and "salmonids", I should not like to comment on the history of the differences between the texts of the directive. However, the Government have accepted the view of the agriculture committee of another place that it would accept an amendment of the English text that brought it into line by including "salmonids".
To conclude, we are still studying the amendment. I should like to be able to say that we shall have a reply on the point of principle by the time of the Bill's Third Reading in this House, but that would be an optimistic timetable. We should certainly not be able to introduce an amendment of our own before the
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Committee stage in another place. However, by then we shall have a response. With that assurance, I hope that my noble friend will not press his amendment.
Lord Norrie: My Lords, I am extremely grateful to my noble friend for that very encouraging response. I am pleased to hear that the Government are deliberating on the principles of the amendment. I understand their difficulty with the timetable. However, if the noble Baroness can put forward an amendment at Third Reading, that would be acceptable. It may be a matter that we can discuss after Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Nathan Lord Nathan moved Amendment No. 2:
Before Clause 1, insert the following new clause:
("Council of Environmental Assessment
.—(1) The Secretary of State shall have power to appoint a Council of Environmental Assessment.
(2) The Council of Environmental Assessment shall have the following functions:

(a) to monitor and review the quality of all environmental statements;

(b) to provide information on the quality of environmental statements to the relevant authority;

(c) to assist the relevant authority and promoter of any scheme requiring submission of an environmental statement in identifying the principal impacts likely to result from the scheme and the methodologies to assess the magnitude and significance of such impacts prior to preparation of the environmental statement;

(d) to establish methodologies and standards for assessing the magnitude and significance of all types of environmental impacts.

(3) The Council of Environmental Assessment shall have power to recover the costs incurred in fulfilling the functions referred to under paragraphs (b) and (c) of subsection (2) above from the promoter of the relevant scheme.
(4) In this section—
"environmental statement" means a statement prepared under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, No. 1199;
"relevant authority" means the body to whom it falls to determine a planning application or proposed planning application in relation to the relevant scheme.").
The noble Lord said: My Lords, the amendment arises from the helpful reaction of the Minister to certain remarks that I made at Committee stage. I was prompted by those remarks to put it forward, whether or not she intended that.
The regulations relating to environmental assessment have been in existence in this country for a short time. They cover a comparatively small area of activity. There is therefore not a great deal of experience with regard to the preparation of environmental statements. Nor is there much experience in how to analyse those which have been prepared. It is with those points in mind that the amendment is put forward.
First, it is clearly necessary that methods of preparing environmental statements are considered and agreed. A good deal of work in this context has been undertaken at Manchester University. Among others, Professor Chris Wood has been prominent in

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that work. However, it is important to have an authoritative statement on how such statements should be prepared and a body to review the quality of the statements prepared.
Local authorities have had little or no experience of handling such statements because the developments which require those statements have not taken place within their territories. The purpose of such a review would not be to second-guess the conclusions reached in the statement but to ensure that the manner in which the statement was prepared was comprehensive and appropriate in all ways; and that it assists in identifying the principal environmental effects of the development in question. The purpose of the council and the amendment is to achieve those goals.
The Minister may be unable to agree with the amendment. However, I hope that she will give it further consideration and will bring forward suggestions at a later stage of the Bill. If that were so, it would be extremely helpful to those concerned in these fields if the noble Baroness could inform your Lordships' House whether the Department of the Environment is considering preparation of full and sufficient guidance notes for environmental statements.
The noble Baroness, Lady Nicol, referred at Committee stage to a booklet. However, that is less than adequate for the purpose. A substantial document is required to which developers and local authorities responsible for considering statements can look for guidance.
Developments which come under departments and are not regulated by the planning regime—for instance, transport, electricity, and so on—would apply the same criteria to environmental assessment as those which the department of the noble Baroness applies. I hope that in general the planning regime is applied by other departments as it is applied by the Department of the Environment. If the noble Baroness can give those assurances, that will be of great benefit to your Lordships' House.
Lord Norrie: My Lords, I wish to support the amendment tabled by the noble Lord, Lord Nathan. In Committee my all-embracing EA amendment included a similar proposal for some sort of council or office of environmental assessment. The noble Lord has spoken already of the problems of poor quality and lack of information and guidance available to developers and local authorities. At that stage, the Minister recognised that there were real problems as regards EA quality control at present.
I appreciate that the Government may not wish to go down the road of establishing a new quango. However, in Committee I suggested that a useful start could he made by establishing a small unit of officials within the Department of the Environment in order to ensure that there is a form of monitoring or review of environmental assessments and statements. There needs to be a mechanism or procedure to ensure the highest quality of assessments.
I agree with the comments made by the noble Lord, Lord Nathan. I hope that the Government will apply
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any changes to quality procedures across other departments because EA applies to projects beyond the scope of this Bill. As the Government recognised, all departments have their own so-called green problems. It is not only the Department of the Environment which should be concerned about this matter but also the departments responsible for energy, transport, and agriculture. The newly appointed "green" Ministers should be making EA a key priority.
I look forward to hearing my noble friend's response. I hope that she can provide us with some encouragement as to how the Government intend to pursue EA quality control. An EA is completely invalid if it is not carried out properly.
Baroness Blatch: My Lords, as the noble Lord, Lord Nathan, explained, his purpose is to provide a mechanism for ensuring that environmental statements are of adequate quality. He has drawn the attention of the House to a commission which has such a function, for example, in the Netherlands. As I explained during the Committee stage, we agree the need to ensure that environmental statements are useful documents. However, we do not believe that establishing a separate body is the right way to achieve that in this country. It would add to what is already a complex procedure, while diverting attention from the central purpose of the procedure which is to enable an informed decision to be made on the application for planning permission. I outlined various measures that can be taken to improve the quality of environmental statements, including self-help by EA practitioners through bodies such as the recently established Institute of Environmental Assessment of which the noble Lord, Lord Nathan, is president.
The Government's action in this field, which was set out in the White Paper This Common Inheritance, is to commission studies which will lead to the preparation of guidance on how to prepare an environmental statement and on how to evaluate environmental information. We expect to invite tenders for the first of these studies in the next few weeks. I hope, therefore, that the noble Lord will not press his amendment.
The noble Lord, Lord Nathan, asked about other government departments and my noble friend Lord Norrie mentioned the importance of other government departments. He asked whether they should keep in line with the Department of the Environment on environmental assessment issues. He gave me a good deal of notice of that point, but I hope he is not expecting a very detailed answer since EA applies to such a wide range of activities for which many different departments have responsibility. It is of course the responsibility of the government as a whole to ensure that European directives are implemented, but the details of the implementation are the responsibility of individual departments. In practice my department has taken the lead on the EA directive and keeps in close touch with the others. The schedule setting out the information which must be included in an environmental statement is, for example, in the same terms in all the regulations implementing the

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directive. On the other hand some departments, notably the Department of Transport, have practical experience in undertaking EA which is valuable to us.
I assure my noble friend Lord Norrie and the noble Lord, Lord Nathan, that we believe that the quality of the assessments will be very important. That point is well noted and taken on board. However, I hope that with that explanation the noble Lord will not press the amendment.
3.45 p.m.
Baroness White: My Lords, perhaps the Minister will refer to the statement of intent contained in this amendment. Surely she agrees that this is purely an enabling amendment. There is no compulsion on the Secretary of State to appoint a council for the purpose. However, when all the studies in which the department is going to engage are before us, it may be desirable to have an enabling power in the Bill because primary legislation on these matters does not come before us very often. What harm is there in having an enabling power? The amendment merely states:
"The Secretary of State shall have power to appoint a Council".
He is not obliged to.
Baroness Match: My Lords, the last thing that the Government want to do is to mislead anybody or falsely raise expectations. I have made it quite clear that the Government see no need for a separate quango to achieve this objective. It is important that the quality of the assessments is of a high standard. Therefore, we wish to go down the road of guidance in order to make sure that the people involved with the assessments are those who have the responsibility for producing them and that they should not be overseen by a separate body.
Lord Nathan: My Lords, I am grateful to the Minister for her reply. As regards the responsibility of government, her response is much to be welcomed. It would have been nice to have had a very firm statement. On the other hand, the difficulty of securing the agreement of all relevant departments on matters of this kind within the time available would, I recognise, be almost impossible. However, I am grateful for the positive approach to the problems which I raised. For that reason, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Renton Lord Renton moved Amendment No. 3:
Before Clause 1, insert the following new clause:
("General duty of enforcement
. A local planing authority shall exercise its powers so as to ensure compliance with planning controls in its area.").
The noble Lord said: My Lords, we acknowledge that the Government are taking measures in this Bill to increase the respect for planning controls and, indeed, to assist enforcement procedures. Surely, effective enforcement is the foundation of an effective planning system. One cannot get away from that. There is little point in detailed forward plans being prepared, whether of a general or detailed kind, and having control procedures, and so on, if the remedies
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enable people to cock a snook at the whole planning system. In those circumstances, we should be enacting a dead letter.
The CPRE takes the view—and we are indebted to it for the very full way in which it has enabled us to consider the case—that a general duty placed on local authorities to ensure compliance with planning controls is fundamental to the proper operation of the system. This new clause would achieve that in short and simple terms.
A survey of enforcement practice was summarised in the Carnwath Report. That survey found that 75 per cent. to 80 per cent. of the enforcement actions which took place were initiated not by planning authorities but by members of the public, including various councils and local interest groups. That surely confirms that a major problem exists in regard to the current arrangements. It also reveals the reluctance of local authorities to take action to secure compliance with their planning controls. We suggest that the amendment would strengthen the resolve of local authorities and improve their bargaining position with those developers who may have it in mind to breach the controls or depart from the details of the planning consents given.
The Carnwath Report stated that negotiations are obviously desirable but they will often be more effective if they are combined with strong legal action in reserve. We must be careful that we do not make ourselves vulnerable to the suggestion in the Carnwath Report that until now there existed a lawbreakers' charter. Public confidence is needed. The public want to be assured that the environment is protected and that lawfully made decisions are effectively in force. That general duty would provide a stronger legal basis than exists at the moment to ensure that local authorities take the necessary action. I beg to move.
Lord Norrie: My Lords, I speak in favour of the amendment. All the welcome provisions of the Bill to strengthen and improve enforcement procedures will count for nothing if local authorities choose not to use them when faced with a breach of control. The amendment will ensure that they make better use of the Bill's provisions.
During the Committee stage of the Bill my noble friend on the Front Bench said that it was not powers but more law that was required and that it was for the planning officers to use the powers at their disposal. I believe that most of us agree with that statement. A general duty would provide a strict legal basis to ensure that local authorities take that action. It would not mean that they had to enforce against every trivial breach of control. In the long run it would help to create a new climate for the planning system in which both local authorities and developers showed it respect. That can only be good for all of us in our efforts to protect the environment.
I hope my noble friend can indicate that she expects higher standards from local authorities once the Bill is enacted. Firm guidance regarding how local authorities should behave is an essential part of the Bill's new

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provisions. However, it needs to be backed by the power of the law, and it is on that basis that I support the amendment.
Baroness Hollis of Heigham: My Lords, we on this side of the House also support the amendment. It proposes to bring all local authorities into best practice by ensuring that they all require compliance with planning controls.
At the Committee stage the Minister rightly valued "flexibility", "discretion" and "common sense". However she feared that the amendment would make the planning process rigid and inflexible. I believe that that was the reason given for rejecting the amendment. I hope that after studying the Committee stage debate she will agree that that is not the case.
The values of flexibility and discretion should surely apply to the making of the planning judgment but not to making the planning judgment stick. All people must obey the law. As with traffic offences, one may receive a verbal reprimand from the police officer or be charged. The officer does not turn a blind eye and allow the car to speed on. Without the amendment the Bill is, at best, an invitation to lethargy by some local authorities and at worst could possibly lead to a bending of the law by others.
People rightly ask why they should obey the law, seek planning permission and pay fees when others knowingly do not and get away with it. I repeat that it does not mean that most breaches will be dealt with other than by negotiation, as now. If the Minister were to accept the amendment a clear message would be signalled that there would be no blind eyes. The Minister said at Committee stage that many breaches are settled quite informally. Precisely so; the point is that trey are settled and not ignored.
Baroness Blatch: My Lords, I understand the reasons why my noble friends regard their amendment as sufficiently important to move it again today. I listened very carefully to all that was said in the debate on 17th January on Amendment No. 2 and to what has been said today. The Government sympathise with the spirit of the amendment but we remain unpersuaded that Parliament should impose on planning authorities a potentially onerous general duty of enforcement or compliance.
Planning control should be administered flexibly, at the discretion of each local planning authority, subject to ministerial guidance on planning control policy. That approach enables each planning authority to tailor its response to a breach of control to suit the particlar circumstances. Many suspected breaches of control are settled informally, by discussion between the owner or occupier of the land and the planning authority's enforcement officer, without even a formal report to the planning committee.
The noble Baroness, Lady Hollis, used that as a criticism. I believe it is a strength of the system and that kind of flexibility means that informal negotiation is always preferable to the heavy hand of the law. It represents an efficient and cost-effective use of scarce local authority resources.
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If Parliament imposed a general duty of enforcement or compliance on all planning authorities, many of them would feel under a duty to take some formal enforcement action against all except the most trivial breaches of control. There would be a tendency to bureaucratic formality, with more frequent and needless references to planning committees. That would be administratively expensive and time-consuming. There is no guarantee that the process would result in better quality or quicker enforcement action than at present.
The present enforcement regime, as it will be when amended by Clauses 1 to 11 of the Bill—which it is important are accepted as a package—can achieve a reasonable balance between the desirability of fostering acceptable development, even if it has been carried out without prior planning permission and has to be authorised retrospectively, and the need to maintain effective control over development which is plainly unacceptable.
We are concerned about the consequences of an increased emphasis on "compliance". That would conflict with the Government's de-regulatory approach to inessential controls over businesses, especially small businesses. Some planning authorities might come under great pressure to take formal enforcement action, even when discussion would resolve a planning control problem satisfactorily. We are conscious that, on average, most planning authorities now resolve 19 out of 20 practical enforcement problems without any formal enforcement action.
Nevertheless, I want to be helpful to my noble friends and to other noble Lords who have supported them. I suggest that their understandable concern may be met by appropriate policy guidance to all planning authorities about the way in which Parliament expects them to use their enforcement powers. While the enforcement regime will remain discretionary, we should emphasise that planning authorities are expected to use the full range of powers given to them by Parliament when in their judgment as the planning authority for their area formal enforcement action is the right course. With the backing of firm guidance on these lines, planning authorities would be left in no doubt about Parliament's intentions.
We also intend to ensure that in due course the results of the amendments to the enforcement provisions proposed in the Bill are reviewed. If guidance is given on these lines in a Department of the Environment circular, which I undertake that we shall issue following enactment of the Bill, I hope my noble friends will accept that their purpose will be substantially achieved and conclude that they need not press the amendment.
I hear phrases ringing in my ears not only from Second Reading but from the three days of Committee, and no doubt they will be repeated in what is left of the remaining stages of the Bill. My noble friends Lord Renton and Lord Norrie, and other noble Lords who support the Bill, must take on trust what I am promising, that something must change as a result of the Bill. Clearly if nothing

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changes all that we are doing will be in vain. They say that it is not the rhetoric; it is not what I say; it is not what is written in these pages; it is going to be what happens on the ground. I believe that we shall see changes, and I hope that these amendments will not be pressed.
4 p.m.
Lord Renton: My Lords, although I thank my noble friend for that reply, I must say that I am disappointed in it. I feel very doubtful about the arguments she has used.
Bearing in mind that the Bill has to go through another place, I think that this is a matter to which the Government should give further thought. In giving that further thought, will my noble friend bear in mind that, on what she has said so clearly, we should be reaching a situation which already exists; that is, of one local authority having a high degree of enforcement and another having a lower degree of enforcement, and sometimes developers deciding that they will operate in the area of the more favourable local authority? It is not right that Parliament should appear to be enacting laws in the full consciousness that they will not be evenly enforced. That is the situation which we are reaching.
However, I unusually feel—that is, it is not a usual attitude—that, although I trust your Lordships when voting, and voting against the Government and overruling the Government, in order to obtain the right solution, on this matter, where there has to be a degree of co-operation between the Government and local authorities, it would be unwise to attempt to reach a solution flying in the face of government advice.
That is the only reason why I am not going to ask your Lordships to divide. Normally I do not hesitate to ask for a Division, and sometimes it is successful and very often not. But having said that, I hope that my noble friend will bear this in mind in further consideration of the matter. We really must be careful not to appear to be enacting a dead letter here and there and not to appear to be having an uneven enforcement of the law. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 4:
Page 3, line 5, at end insert:
("(4A) A person guilty of a second offence under subsection (2) above shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale, and to a fine not exceeding level 5 for every subsequent offence under that subsection thereafter.").
The noble Baroness said: My Lords, I should like to move Amendment No. 4 and speak to Amendments Nos. 30, 34 and 77. I would suggest that these are all fairly straightforward amendments which have in common the request to raise the level of fines, particularly for repeated planning offences.
Amendment No. 4 would raise a fine for a second offence to Level 4, and subsequently to Level 5 for an
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offence against a planning contravention notice. Amendment No. 30 would offer higher fines for breach of an enforcement order. Amendment No. 34 would do the same for stop notices, and Amendment No. 77 would raise the fine from Level 3 to Level 5 for the offence of knowingly giving false information.
I hope that the Minister will look kindly on these amendments because at Committee stage, when we were discussing Amendment No. 96, the Minister accepted the substance of those points and kindly agreed to come back. Given that this is consistent with other legislation, particularly the Town and Country Planning Act, I hope that the Minister will feel able to accept the amendments.
Baroness Blatch: Amendment No. 4 concerns the level of the maximum penalty in respect of further offences, under the proposed new Section 171D, for non-compliance with a planning contravention notice.
The maximum penalty specified for a first offence under subsection (1), at Level 3 on the standard scale (currently £400), rather than at Level 5, is deliberate. A planning contravention notice may be served only where the planning authority suspects—it is no more than a suspicion in some cases—that a breach of planning control may have occurred. There may prove to be no breach, or it may be very minor, or there may be no planning objection to it. The notice may require only a minor item of information, such as the date when the alleged activity first occurred. It will invariably be served at a preliminary stage in the authority's consideration of the matter, well before it has resolved whether to take formal enforcement action. In these circumstances, we think that Level 3 is about right.
Within the maximum amount Parliament specifies for the offence, it is in the court's discretion to decide on the seriousness of the particular offence and the circumstances of the individual. A second or subsequent offence is not necessarily more heinous. It is a repetition of the same offence. It is then open to the court to impose a higher fine on the second or subsequent occasion within the same maximum. We consider it is inappropriate and unnecessary to provide a progressive scale of penalties for the same offence. I hope the noble Baroness will not press her amendment.
Amendment No. 30 concerns the level of fine to be imposed by the courts in respect of second and subsequent offences under subsection (6) of the proposed new Section 179 of the 1990 Act. Its effect would be to require the court to impose successively higher fines within the maximum of £20,000 provided under subsection (8)(a) on summary conviction. We assume that the amendment applies only on summary conviction.
We resist this amendment because it would effectively remove the court's discretion to have regard to the seriousness of the further offence, perhaps in circumstances where the individual concerned may already have complied partially with the requirements of the enforcement notice since the first conviction, and to the personal circumstances of the offender.

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In determining the amount of any fine, the courts would be required by the new subsection (9) to have regard to the financial benefit accruing to the convict ed person in consequence of any offence under Section 179, including a further offence. So the longer a person fails to comply with an enforcement notice, the more he is likely to be penalised in any event, without the requirement which the amendment seeks to impose on the discretion of magistrates. We should perhaps remember that, in their sentencing practice, magistrates will usually know the local situation better than most other people and will take it into account.
We believe that the new exceptional maximum penalty in subsection (8)(a) will indicate to the courts the potential seriousness with which Parliament regards these offences, and that sentences will fit the offence in every case. I hope I have persuaded the noble Baroness not to press this amendment, but I am looking at her face across the Dispatch Box and I am not absolutely certain that I have done so.
Amendment No. 34 concerns the proposed new Section 187(1A). It seeks to impose the same restriction on the discretion of the courts of summary jurisdiction to fines in respect of repeated offences of contravening the prohibition in a stop notice, as in the noble Baroness's earlier Amendment No. 30 for the comparable offence of failing to comply with an enforcement notice.
We must resist the amendment for similar reasons to those I have already given. I hope that the noble Baroness will not press it. Finally, the Government are content to accept Amendment No. 77 which will align the penalties provided in planning legislation for three offences of a very similar nature. My noble and learned friend Lord Fraser is considering amending Clause 37 to mirror this decision in Scottish legislation.
Baroness Hollis of Heigham: My Lords, I thank the Minister for that very full and helpful reply. Obviously, we are delighted that the Government have felt able to accept Amendment No. 77. However, I am not persuaded by her argument associated with Amendments Nos. 4, 30 and 34. I emphasise that these amendments seek to raise the ceiling of fines that may —not must—be levied by magistrates. To use the Minister's own phrase, magistrates know the local situation. Indeed they would take that into account. This offers the magistrates the capacity to raise the ceiling of the fine where they deem it appropriate, using precisely the local knowledge that the Minister has inferred they possess.
Secondly, I had hoped that most noble Lords would have accepted the principle that where an offence is repeated the penalty should be increased. That is standard procedure in civil law, and standard procedure for traffic offences onwards, as a form of deterrence. I regret that the Minister has felt unable to accept that repetition merits higher penalties, which applies in most other areas of the law, and that she does not accept that these amendments would increase the discretion of magistrates in imposing an
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appropriate fine as the penalty. In the light of what the Minister said it would be unwise to press the amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 5:
Page 3, line 22, leave out ("fourteen") and insert ("twenty-eight").
The noble Lord said: My Lords, as the clause stands, a person who fails to comply with a notice within 14 days will be guilty of an offence. Under Section 330 of the Town and Country Planning Act 1990 a planning authority may request information on the ownership, occupation and use of land. Section 330 allows 21 days for compliance with such a request. The proposed contravention notice would require the person notified to provide more information than the Section 330 provision but would allow less time—only 14 days instead of 21—in which to gather the information.
The contravention notice would require details of any planning permissions or conditions relating to the use of the premises in question. For instance, it might require the person on whom the notice is served to obtain and examine documents which may be in the hands of his solicitor. Fourteen days gives insufficient time for such information to be compiled. I apologise to my noble friend Lord Coleraine for saying that solicitors are not always the most speedy and hasty people. Nor, I hasten to add, should they be, because they must be careful, as opposed to farmers who are not.
Even if the Government elaborate on the reasonable excuse plea that I mentioned in Committee, the time limit of 28 days would help to avoid the unnecessary use of such an excuse. It would also avoid taking up the court's time in proving that it was a reasonable excuse. I beg to move.
The Earl of Radnor: My Lords, I support the amendment, which seems eminently reasonable. Fourteen days is a short period of time in which to undertake the work that my noble friend has mentioned. I hope that the Minister will agree to it.
Lord Coleraine: My Lords, I too support my noble friend as I did in respect of a similar amendment tabled in Committee. I was delighted to read in the Marshalled List that in Amendment No. 6 the Government have accepted his wise advice that it shall be a defence against a prosecution for failure to comply with a planning contravention notice for the accused to prove that he had reasonable excuse for failing to comply.
I anticipate that the Minister may cite that change as a reason for opposing the amendment that we are now considering. If so, she will no doubt say that no one need worry about the period of 14 days because it will be a defence for the accused to say that his failure to meet the requirement was reasonable. I suggest that removing the two specific defences originally in the Bill and making reasonable excuse a full defence in no way alters the desirability of extending the period for compliance from 14 to 28 days. It is not right and it brings the law into disrepute to provide for a time

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limit. In a substantial number of cases it is unlikely to be reasonable. In fact, clearly in many cases it will be unreasonable. It is no answer for the Minister to say, as she did in Committee:
"while I understand my noble friend's reasons for proposing a longer period, it would build into this new contravention notice procedure the kind of delay that we are determined to avoid".—[Official Report, 17/1/91; col. 1305.]
Apart from the fact that I doubt whether it would do any such thing, one cannot defend an unreasonable period for compliance with a statutory requirement by saying that, if prosecuted, the accused can show that he acted reasonably. No one should be put in jeopardy of being criminalised in that way.
Equally, it is no answer to say, as the Minister said, that planning authorities will have a discretion not to prosecute unreasonably and that they should exercise their discretion. Of course that is correct but it is no answer to someone who receives a notice but who in order to comply must obtain information from a third party. Nor is it an answer to someone who learns while on holiday that a notice has been served on him and is told that unless he replies within 14 days he will, without reasonable excuse, put himself in jeopardy of facing criminal proceedings. He should not be left to the mercies of an official of a planning authority.
My noble friend referred to the period of 21 days set out in Section 330 of the 1990 Act. It appears from the Carnwath Report that the precedent being used for the 14 days' notice is to be found in Section 16 of the Local Government (Miscellaneous Provisions) Act 1976, the headnote of which reads,
"Power of local authorities to obtain particulars of persons interested in land".
The information that may be required under a notice under Section 16 of the 1976 Act is less extensive taken overall. The requirements of the section are less stringent than the requirements of the planning contravention notice.
In addition, the period of 14 days which is to be given is not 14 days, full stop; it is a minimum period of notice. Surely it would be fair to assume that the minimum period for compliance with the notice will be given only when it is clear to the local authority that the information can properly and easily be provided within that period. In fact I believe that the only occasion on which a local authority might give a minimum of 14 days notice will be when it is asking the owner of the land for confirmation of who the owner is. That is information which the local authority will have already but will wish to have in writing so that it is not involved in proving the matter in any later proceedings. I hope that on reflection my noble friend will accept the amendment.
4.15 p.m.
Baroness Blatch: My Lords, Amendment No. 5 would extend from 14 to 28 days the period within which the recipient of the new planning contravention notice must comply with any requirement of the notice if he is not to be liable to prosecution for an offence under Section 171D(1). As I said in response to the similar Amendment No. 8 tabled in Committee, the
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period chosen was recommended by Mr. Carnwath in his report Enforcing Planning Control. It is the same period as is provided in the Local Government (Miscellaneous Provisions) Act 1976. We are not aware of any practical enforcement problem in that provision.
I must disappoint my noble friend Lord Coleraine because I am about to say what he advised me not to say. We accept that it is a relatively short period but in subsection (3) there is a reasonable defence for failing to comply with it for those with a genuine reason. Where it can be proved, that applies to people who take extended holidays, who cannot be found, who are on business trips or who are indisposed. It is vital that this preliminary stage of the planning control process should not have in-built delay beyond the essential minimum if planning authorities are to be able to investigate suspected breaches of planning control efficiently and to act quickly to remedy or prevent them.
My noble friend Lord Stanley made a comparison with Section 330 of the 1990 Act. The planning contravention notice is intended to concentrate the recipient's mind rapidly. For that reason we have provided only 14 days. We must be sure that planning authorities can use the procedure effectively, especially when they suspect a serious breach and have no information for deciding whether to take formal enforcement action. I hope that my noble friends will not press the amendment but will give the new procedure a trial period with the 14-day limit.
Lord Stanley of Alderley: My Lords, that was an unsatisfactory answer. The Minister gave almost the same answer as she gave in Committee. Apparently, we are expected slavishly to follow the Carnwath Report when it suits my noble friend on the Front Bench but not to follow it when it does not suit her. On this occasion it does not suit me but obviously A suits her.
As my noble friend has said, the 14-day limit is extremely short. We are in great danger of criminalising—that is a horrible word and a horrible action to take—a person for doing very little. Should we really do that? My noble friend Lord Coleraine is far better versed in the law than I am, and he thinks that we should not. I believe that your Lordships should think not, too. In this case I do not see that speed will be increased. I cannot understand the point made by my noble friend on the Front Bench about Section 330 being less onerous. I am inclined to press the amendment, but on this occasion I shall not. I shall leave the matter for my noble friend to have second thoughts. I might well raise the issue again at Third Reading if the House feels so inclined. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 6:
Page 3, leave out lines 33 to 38 and insert ("that he had a reasonable excuse for failing to comply with the requirement.").
The noble Baroness said: My Lords, Amendment No. 6 addresses the concern expressed by my noble friend Lord Stanley when he moved his Amendment

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No. 11 during Committee stage of the Bill. What my noble friend said is recorded at col. 1303 of the Official Report, of the Committee's proceedings on 17th January. His concern then was that the two alternative defences provided by new Section 171D(3) of the 1990 Act against prosecution for a failure to comply with a requirement of a planning contravention notice were insufficient, particularly in view of the relatively short 14-day response period specified in new Section 171D(1). His amendment proposed that a person prosecuted should be able to plead that he has a reasonable excuse for failing to comply with the requirements of a notice.
We have examined my noble friend's suggestion very carefully and have concluded that there is considerable force in it. As I said in Committee, we must not weaken the effect of the new planning contravention notice to the point where planning authorities are reluctant to use it. Nevertheless, there is a balance to be struck between the interest of the planning authority in being able to operate an efficient and effective procedure and fairness to the recipient of a notice who is genuinely prevented from complying with its requirements. The government amendment attempts to strike a fairer balance between these conflicting interests.
The effect of Amendment No. 6 is to omit the entirety of paragraphs (a) and (b) in subsection (3) of new Section 171D, which currently provide the alternative defences. In their place we propose to substitute a single defence that the person charged,
"had a reasonable excuse for failing to comply with the requirement".
This defence subsumes the two current defences and yet is wider in scope. Amendment No. 9 to Clause 27, makes a corresponding amendment to the new Section 83D(3) of the Scottish Act.
I am grateful to my noble friend Lord Stanley for raising this issue in his usual courteous way. I hope he agrees that the amendments deal satisfactorily with the problem, and that your Lordships will find them acceptable.
Lord Stanley of Alderley: My Lords, I thank my noble friend very much for that concession. I still say that a delay of 28 days instead of 14 days would avoid a great many problems and also save a great deal of court time. As my noble friend has been so courteous to me I suppose that she will not be surprised to learn, now that she has given me this amendment, that I might well want more and come back at Third Reading to the issue of 28 days.
On Question, amendment agreed to.
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 7:
After Clause 1, insert the following new clause:
Commencement of development in breach of planning control
( ".After section 171 D of the principal Act (as inserted by section 1 of this Act) there is inserted—
"Commencement of development in breach of planning control.
171E.—(1) A person who unlawfully initiates or carries out development, well knowing that such conduct is in breach of planning control, shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding £20,000.
(3) In determining the amount of any fine to be imposed on a person convicted of any 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 this section "initiates" shall be construed in accordance with section 56(1)." ").
The noble Baroness said: My Lords, this amendment is changed slightly from the one that I brought forward at the Committee stage. For the benefit of noble Lords here today but who were not present then, and who have not read Hansard, I shall briefly comment.
At present it is illegal to place an advertising notice on a building. However, it is not illegal to erect a building of any number of storeys and to place an advertising notice on it. That is no offence. It is illegal to cut down a tree which is covered by a preservation order. To do something which may have a very adverse effect on other people and also be contrary to planning control, is not illegal. Therefore, the purpose of this amendment is to create a criminal offence in cases where there has been a blatant disregard of planning laws.
When we debated this subject at an earlier stage concern was expressed that we might be catching the little person who unknowingly did something wrong. We all wanted to avoid that. Therefore, we have re-worded Section 1 to cover that category. The intention is to make it clear that only people who well know that their actions are contrary to planning policy and planning control will be guilty of an offence. I believe that the new draft of Section 1 is appropriate.
I have a letter from my noble friend the Minister dated 15th February, but it was received only today. In that letter she says many things which I believe to be so contradictory that I must briefly run through them. For example, she said that to differentiate between large and small criminals it would be necessary to have detailed categorisation. At another sitting of the Committee I was abroad but I read in Hansard that my noble friend said that the department would be issuing policy guidance on these matters. I believe that it would be very simple to issue policy guidance to cover the categories in which a prosecution should be brought and where it should not. I do not believe that the matter would be nearly as complicated as my noble friend suggests.
She said that if the district planning officers would like to submit a revised proposal concerning guidance the department would look at it carefully. It would be excellent if there were to be liaison between them and the department. The department should think these matters through and then come forward with guidance to the district councils and the planning authorities. If that can be done through consultation, so much the better. My noble friend continued by saying that the Government remain unpersuaded that criminalisation is an essential component of the enforcement package. That is where we disagree

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because I believe it is an essential part. It is the deterrent effect which will be extremely valuable. The re-wording of this amendment is such as to make it clear that we do not intend to have widespread prosecution of people for very minor matters.
The next argument put forward by my noble friend in her letter is that criminalisation is not included in the Carnwath package and that it would be harmful to reconsider this matter because it might mean that we were re-examining the entire package. I cannot go along with that proposition when I see that the amendments tabled by the Government, which we have already discussed, are almost a book in themselves. This Bill has been amended so many times that I am not sure that it bears much resemblance to the original. We have re-examined almost the entire package. Therefore, I cannot accept my noble friend's argument.
The next page of my noble friend's letter is even more contradictory. She speaks about an imprecise offence and that it might be too difficult to prove. She pointed out that the offence would be hard to prove and that it had to be proved beyond possible doubt. I understood at Committee stage that that is what we were looking for—that is, an offence which would have to be beyond reasonable doubt but which could not be easily proved. The aim of this amendment is not to catch a person who has committed one minor wrong on one occasion; it is to catch the regular and persistent offender who blatantly does what he likes and totally ignores planning law.
I cannot reconcile the Minister's comments in one paragraph of her letter that the measure is too strong and then to go on to say that it is not strong or clear enough. I do not think the matter can be accepted both ways: it has to be one way or the other. I notice that we shall debate Amendments Nos. 7 and 8 together. The latter amendment is in the name of the noble Lord, Lord McIntosh of Haringey. Of course I go along with the bits of his amendment that are the same as mine, and I suppose that that will not surprise him, but I do not go along with some of his other subsections. For example, in Amendment No. 8 I do not agree with subsection (4) because he limits it to just particular categories. I do not believe there should be one law for people who live in nice areas and another for those who live in bad areas. I therefore believe that it should apply to everyone.
I disagree with the noble Lord's next subsection even more strongly. This is the one about,
"development within the curtilage of a single dwellinghouse".
The word "curtilage" means not just in your own house but your grounds, and if you have a garage you can build something on top of the garage. It might be a terrible infringement on the people around. It could be that you have a barn in your grounds, and you can instantly go ahead and do something to it, whereas there are strict planning controls over the conversion of barns into dwellings, and people like to see that the character of the property is retained. Again that is giving carte blanche for a person to get away with an
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awful lot by saying that it is their own dwellinghouse and that they wanted to further their enjoyment of it. I do not go along with that subsection.
I think that subsection (6) is good, except that I would want to see added to it "the Secretary of State". It is excellent that local authorities could be the only ones to enforce it, and you could not have the situation that my noble friend the Minister referred to where neighbours would be bringing cases against neighbours. It is right that it should go through the planning authorities, but there are some planning authorities—I know that my noble opponent from past days in the Greater London Council will know full well what I mean—and certain boroughs in London that do not take their duties as seriously as one would wish and therefore might not be prevailed upon to do something. It is necessary to protect the person living in such an area by including the Secretary of State in this power.
4.30 p.m.
Lord McIntosh of Haringey: My Lords, I wonder whether the noble Baroness would allow me? She has made an interesting and worthwhile point. I assume that what she means is "a local planning authority or the Secretary of State" rather than "and the Secretary of State"?
Baroness Gardner of Parkes: My Lords, I thank the noble Lord for that clarification. It would be a case of last resort that you would be able to apply to the Secretary of State if your own planning authority could not be moved to consider even what was a case. Then again the Secretary of State would have the discretion to look at it and see whether he thought it was an appropriate case. No, it would be quite unwieldy if you asked for both.
I like very much the noble Lord's subsection (7), because it is clear about what constitutes a defence. I took out of my amendment at the previous stage the subsection where I said what did not constitute an offence. I took it out because I did not like the negative attitude of what did not constitute an offence. This is much more practical and it sets out what constitutes an offence.
Although I do not agree with the comments that my noble friend the Minister has made, I know that she has viewed this matter seriously and considered it. Therefore my suggestion to her is that the Government should look again at putting together my Amendment No. 7 and the noble Lord's Amendment No. 8, taking the good bits out of each and leaving out the controversial bits that we do not agree with. Although the noble Lord must agree with my amendment because all of my subsections are incorporated in his amendment, it is just that he is going much further.
However, I should like to think that the Minister would look at this again. I would hope that this matter would not need to be pressed to a Division, but public concern on the issue is great. Since the Committee stage debate I have had so many letters that I think that people feel strongly and this must not be underestimated. I beg to move.
Baroness Castle of Blackburn: My Lords, I obviously support Amendment No. 7, which carries my name. I was distressed to hear from the noble Baroness, Lady Gardner, the negative response that she has had by letter from the Minister. I have not had one. I think I should have done, but there we are.
I do not want to go over all of the ground we went over at Committee stage. This question of criminalisation was thoroughly gone into. Some Members of this House sort of recoiled in horror at the very word. I would just remind them again that a whole range of much less heinous offences carry this criminalisation taint, if you want to use that emotive word. I have just been reminded of two more in addition to the ones we quoted in Committee. I understand that it is a criminal offence to disturb a bat and a criminal offence to kill an adder. Therefore, do not let us be frightened of the word.
What we are asking is that effective enforcement powers should be placed in the hands of planning authorities, and indeed of the people as a whole, to ensure that the deliberate contravention of planning law shall not go unpunished. I should have thought that that was a principle that would have found a sympathetic response in this House, because we care very much for the sanctity of law and we want it to be upheld. We want it to be something that is held in profound and wide respect, but we know that some people are just laughing at it, and owing to the inadequacy of the current enforcement powers are getting away with it.
There was what seemed to be a plausible argument advanced while we were discussing this earlier. This was that we were told that the Home Office did not like the creation of any offence for which there was not a defence. Well, I find that rather uniquely applied in this case. But all right, accepting that the Home Office really was serious and had a point, we looked at it and we took legal advice. Amendment No. 7, as redrafted, deliberately and effectively met this point by the inclusion of the words "well knowing". So some innocent person who did not know would not be caught.
But according to the letter that the noble Baroness, Lady Gardner, received, that argument is not relevant any mere, and a whole lot more has been produced —that it is too complex or it is too this or too that. I am afraid that we are left with the obvious deduction that the Government do not want to act at all. They do not wish effectively to strengthen the enforcement powers because they have left themselves with no meaningful argument.
I think that Amendment No. 8 in the name of my good friend Lord McIntosh is not as good as Amendment No. 7. I think that secretly he might admit that it is not. But perhaps he has more faith than I have in the possibility of convincing this Government to do something if one waters it down enough. I do not think they want to. I do not think they intend to. If they did, they would take the simple amendment, Amendment No. 7, which again I repeat is the sort of legislation that the district planning
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officers, who are at the sharp end of this enforcement business, want. I repeat that we have had legal advice that it would meet the Home Office's initial complaint.
I hope, therefore, that the House will demonstrate tonight our intention to ensure that there is respect for planning law. We are going to show the criminals who are evading the law that they will no longer be able to do so by finding loopholes in the present complex legislation. Carnwath was certainly an improvement, but the people who have to operate the planning laws say that it does not go far enough. Behind this amendment are the people who are in the front line. They really know all about the tricks used by the evaders; and they want to be in a position whereby they can carry out their job properly. I hope that Members of the House will express their support for Amendment No. 7.
Lord Ross of Newport: My Lords, I support the amendment. I cannot pretend to speak with the same authority as the noble Baronesses, Lady Castle of Blackburn and Lady Gardner of Parkes. Surely it would be absolutely daft, now that we have the Planning and Compensation Bill before us—much of which we approve of —not to deal with one of the most serious problems which is at present faced by local authorities and planning officers. In my view it would be quite absurd not to write a provision into the Bill which would enable the authorities to prosecute those who are blatantly breaching our planning laws.
By virtue of the last amendment, and in response to a request made by the noble Lord, Lord Stanley, it is now written into the Bill that a person would have a defence for non-compliance if he had a "reasonable excuse". What is the difference between those words and those contained in Amendment No. 7; namely, "well knowing". Of course, the wording could be changed a little, but surely it covers the same area. If someone quite accidently breaches the planning law I do not believe that anyone in his right mind would want to prosecute. We want to catch those people who break the law knowingly and purposely. In my view it would be ridiculous not to tackle the problem now.
I have received a copy of the Minister's letter to the noble Baroness, Lady Gardner of Parkes, for which I am grateful. As a spokesman for one of the Opposition parties I am also grateful for the other information that we have received during the passage of the Bill. However, I am not very impressed with the second paragraph of the letter which states that district planning officers are trying to find some wording to cover minor or technical breaches. However, should they manage to do so there is no promise in the letter that such wording would be accepted.
I believe that Amendment No. 7 is preferable. I agree with the remarks made by the noble Baroness, Lady Gardner of Parkes, about subsection (7) of Amendment No. 8. I believe that it would cover the area about which we are concerned; that is, if the Government Front Bench agree that something along those lines would prove acceptable. I very much hope

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that the Government will not continue to oppose the amendment, but if they do I sincerely hope that the noble Baroness will test the opinion of the House.
4.45 p.m.
Baroness Carnegy of Lour: My Lords, I intervened briefly—but not, I think, very succinctly having read the report in Hansard—in the last discussion on the matter. It is understandable that local authorities should be concerned about the problem and that they should want a new criminal offence to be instituted. However, on reflection, and after having spoken to many people who are involved in planning procedures, I believe that it is important for us to remember the basis upon which the whole structure of our planning system is built. It is all about local people reconciling the interests of one group of people with another.
I refer to the interests of the developer and those of the local inhabitants. Such interests must be reconciled and attempts must be made to try to arrive at an agreement which meets the requirements of the local people. In Committee my noble friend Lady Blatch said that such arrangements, if made, would be inclined to set one person against another in connection with relatively small matters such as the creation of a window in a particular building, and so on.
In introducing Amendment No. 7, my noble friend Lady Gardner of Parkes said that the categorisation of buildings was an acceptable idea. She said that this could be covered in guidance and that therefore difficulties would not arise as regards small developments. However, if it is not possible to introduce categories in important issues, surely it is not possible to do so in connection with minor ones. My noble friend said that you can only categorise in guidance. Therefore her argument does not seem to me to be a good one.
The main problem about creating a criminal offence is that the same standard would have to be applied across the country. In other words, you would have to try to equalize the way the planning system is operated. That is not the basis upon which our planning system is built. The idea is that it should be a local decision and, of course, there would be variations. I accept that there are variations in the strictness applied to the enforcement of planning decisions. I believe that this should be so. The public know what is going on and they are perfectly prepared to tell their councillors if they believe that they are in the wrong. In my view it would be a great pity to pursue the matter of criminalisation. I believe that the Carnwath Report is not far off the point. The Government have now incorporated it in the Bill and I believe that we should stick to it.
Lord McIntosh of Haringey: My Lords, I hope that the noble Baroness, Lady Gardner of Parkes, and my noble friend Lady Castle of Blackburn are wrong in the view that there has been no movement at all in the Government's attitude. From reading the Hansard report of the Committee stage debate, I believe that
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there is a good deal of common ground in what we are all trying to achieve. It is fairly evident to everyone that there are flagrant breaches of planning controls by people who know perfectly well what they are doing and who use every trick in the book to delay enforcement of planning controls when they know that they are in breach of them. The booklet issued by the District Planning Officers' Society is very clear evidence of that fact. Indeed, I do not believe that anyone has contradicted it in any way.
The difficulty—and this is recognised by everyone in the House—is twofold. First, we must decide what is a flagrant breach and what is a minor breach for which immediate criminal action would be inappropriate. Secondly, we must decide the more basic issue, upon which I am, perhaps, alone in my view in the House. I refer to the fact that some of us believe that we should not be adding an offence to criminal law unless it is absolutely necessary. I accept what my noble friend Lady Castle said about adders and bats. She put forward a good case. However, the fact that the extension of criminal law has gone too far in other areas is not an argument for extending it yet further. It is like the argument—which I do not accept—that because the Security Council has failed to implement Resolution 242 it has no right to seek to impose Resolutions 660 and 678. I take the view that if the Security Council arrives at the conclusion that it will enforce the United Nations Charter, however late it may be, it is worth trying to support it. If we put ourselves forward as legislators against avoidable extensions of criminal law, however badly we may have behaved in the past, I believe that it is worth trying to continue to achieve that aim.
I have been persuaded that there is a half-way house, although some people may feel that three-quarters of it is on one side or the other. I have been persuaded that my objection to an extension of the criminal law could and should be overcome provided that we limit sufficiently the occasions upon which criminalisation takes place. I have to say to the noble Baroness, Lady Gardner, that my subsections (4), (5), (6) and (7) are not extensions of the principle she seeks to obtain by her amendment, but are restrictions, because we take her point about "unlawfully initiates" and "well knowing". We accept what she says about the penalty for the offence. We accept with pleasure the provision contained in her subsection (3) that the penalty should relate to the financial benefit which may arise from the breach of planning law.
However, we say that in order to identify and isolate, consistently throughout the country—I take the point made by the noble Baroness, Lady Carnegy, on this matter—flagrant breaches, we should seek to restrict the application of criminal penalties. We should perhaps do so by putting no more than a foot in the door: by isolating conservation areas, areas of outstanding natural beauty, SSSIs, national parks and so on, and including, please note,
"Such other areas as may be specified by the Secretary of State".

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If a pro vision along those lines can be shown to work, it could be extended later, if necessary, by the Secretary of State. We seek to identify and exclude what might be called minor breaches such as:
"development within the curtilage of a single dwelling house".
The noble Baroness, Lady Gardner, believes that that may be going too far because there may be breaches by individual householders. I do not deny that. My subsection (5) (i) deals with the complaint made by government that disputes involving something like a window or a minor piece of development could become matters for the criminal law. In subsection (5) (ii) we seek to exclude breaches of conditions on the grounds that they are already dealt with by a summary breach of condition notice. Subsection (6) eliminates private prosecutions. I entirely accept the point made by the noble Baroness, Lady Gardner, that the words "or the Secretary of State" should be included. Subsection (7) is an attempt, which I am pleased to know that the noble Baroness welcomes, to ensure that there is a defence of someone not being aware, having taken reasonable steps to find out, that the development was in breach of planning consent.
I accept that none of those provisions is perfect. They are a compromise. I accept that whatever we do on the face of the Bill, we shall still need policy guidance. The Minister said in Committee that there would be policy guidance. To secure comparable treatment throughout the country, it will be necessary for the Government to help local authorities identify flagrant breaches—for example, acts done with a deliberate intention to start or to carry on with a breach —to identify cases where developers are trying merely to make money at the expense of the planning laws; to identify as a flagrant breach a lack of co-operation with a local planning authority; and to identify cases where a developer is proceeding despite evident local public distress at the breach of planning law. I do not deny that some of that will have to appear in policy guidance from the Government.
However, in so far as it is humanly possible, we have sought to make it difficult—let me put it that way —for the Government to resist making progress. We did not make progress in Committee. I wish to satisfy those realistic district and metropolitan borough planning officers who want more powers and yet do not want them to be universally applicable. I want to help them to show that such powers can and should be used responsibly. I hope that out of this discussion will come Government agreement to some combination of the two amendments. In that, I am at one with the noble Baroness, Lady Gardner.
Lord Wade of Chorlton: My Lords, the noble Lord, Lord McIntosh, started by putting forward some good arguments as to why we should not bring criminalisation into this part of the Bill. Yet he then went on to say that he was quite happy to turn someone in the country into a criminal provided that in a town such a person was not a criminal. It is ridiculous to suggest that the amendments should apply to green belts, rural areas and other such places but not everywhere. The confusion that appears to
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exist makes it clear that it would not be practical or sensible to bring these provisions into force. They would end up being harsh to those who do not deserve the harshness and would not have a proper impact in the areas where the noble Lord suggests they should have an effect.
I do not accept that all the planning officers want to see a change. The planning officers in the North West to whom I have spoken are not in favour of further criminalisation. They are more than happy with the present enforcement arrangements laid down in the Bill. I hope that the Government will resist both amendments.
Lord McIntosh of Haringey: My Lords, before the noble Lord sits down, I believe that I have been misrepresented as having set country against town. One of the categories included in my amendment is conservation areas. They apply especially to towns. I have no intention of distinguishing between country and town. My amendment would not have that effect.
Lord Wade of Chorlton: My Lords, that is the way I read it.
The Earl of Selkirk: My Lords, in subsection (4) the noble Lord lists a number of places, but what about places outside that list? They would seem to be unimportant. Let us take a quarry, for example. There are many other such places which are used for industrial purposes—for example, to product coal or quarry for hard stones. People will say that they do not matter because they are not included in the list. We should be making a sharp distinction between things that matter and things that do not matter. It would be naturally assumed that anything that is not on the list does not matter.
SSSIs are included in the list. Few people know how to behave when they are in the middle of a SSSI. I happen to have one next to my house. It is a golf course. I bet that most of the golfers do not have a clue about the rules relating to a SSSI. We must he careful, because the great body of people who live in the country know the rules and obey them carefully. They know that cattle must not be let into a cornfield or pigs into a potato patch because they will eat the crops. To try to include too much definition will arouse antagonism.
We all want to achieve the same, but to do so we must reach agreement. We must make people understand that the country in which we live is beautiful. The great body of people know that. There are occasions to the contrary, I agree. We must be careful not to push this matter too far. We might cause a great deal of unnecessary antagonism if we do so. Whatever else happens, subsection (4) must be removed. We do not want to mix up these provisions too closely with the penal law. That would be out of place. We are doing something which the great body of people fully understands.
5 p.m.
Baroness Blatch: My Lords, I was a little surprised to hear that the noble Baroness, Lady Castle, had not received a copy of the letter that has been mentioned,

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but I have just been told that it was an error on the part of my department. I unreservedly apologise to her. The letter was in response to an approach to my department made by my noble friend Lady Gardner. Copies were sent to all who spoke in the debate, but I am afraid that there was an omission and I am very sorry about it. I believe that a letter was sent to the noble Lord, Lord McIntosh.
Perhaps I may also clarify one other point about guidance made by my noble friend and others in the debate. The noble Lord, Lord McIntosh, got it wrong; policy guidance has great force for planning authorities. They must have regard to policy guidance which is the next strongest advice that a department can give after regulations. The degree to which a local authority has had regard to the guidance can become a material part of the evidence at the inquiry. However, policy guidance has no force whatever if we are dealing with criminal offences which are a different matter. Therefore policy guidance would not become relevant.
With these two amendments we resume the discussion of the merits of "criminalisation" of unlawful development. It is true and has to be said that only a minority of people deliberately defy planning control. I shall explain later in my response why we believe that the Government's carefully considered approach, based on the recommendations in the Carnwath Report, is preferable.
I recommend that people read the section in the Carnwath Report; it is a persuasive argument against this measure of criminalisation. I shall deal first with the proposals in the two amendments: one by my noble friend Lady Gardner and the other by the noble Lord, Lord McIntosh.
I am grateful to my noble friend for giving me advance notice of her revised version of one of the earlier amendments which she tabled at Committee stage. It has enabled us to study her proposal carefully and I can assure her that while she has been in foreign parts we have spent a good deal of time desperately trying to come closer to what I know, after what the noble Lord, Lord McIntosh, said, we all wish to see on the issue.
I recognise that my noble friend had sought to take account of some of the objections to her earlier amendment. Nevertheless, we still consider that there are two serious objections to the way in which the proposed amendment is drafted. First, we think that the reference to,
"A person who unlawfully initiates or carries out development"
provides an unsatisfactory basis for a criminal offence. Anyone who is to be at risk of prosecution for a criminal offence should be enabled to understand clearly where the boundary of criminality will be crossed. We do not think that the amendment passes this test.
The concept of development in planning law is a complex one. It is based on Section 55 of the Town and Country Planning Act 1990; but the statutory definition is complicated by much judicial authority and by subordinate legislation (the General
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Development Order), which provides for a wide range of permitted development. These factors make it genuinely difficult at times to know with certainty what development is lawful and what is in breach of planning control. I believe that that point was made just now by my noble friend.
Even experienced planning and legal practitioners sometimes find it difficult to say whether what has taken place is unlawful development. I take my noble friend's point that she is concerned with the flagrant or blatant offence, where there is little doubt that a breach of control has occurred. But that is not the relevant point in considering her amendment. In our judgment, what is proposed is an insufficiently precise offence for the purpose of criminal law.
Secondly, we have serious misgivings about the expression in Subsection (1) of the proposed new Section 171E,
"well knowing that such conduct is in breach of planning control".
We think this will place too onerous a burden on the prosecuting authority in any criminal proceedings. My noble friend will know that the standard of proof in criminal cases is proof beyond reasonable doubt. If we have understood her proposal correctly, the planning authority (or anyone else bringing a prosecution in the magistrates' court for the proposed offence) would have to prove, beyond reasonable doubt, that the defendant's understanding of planning law was such that he well knew his conduct was in breach of planning control. Therefore, I am not sure whether it is wise to place on planning authorities the burden of proving to magistrates that a defendant "well knew" that the development he carried out was in breach of control. If that is my noble friend's intention, the result may possibly be a high failure rate in prosecutions for an offence on these lines.
Turning now to the amendment of the noble Lord, Lord McIntosh, I recognise that he has sought to respond to some of the Government's objections to criminalisation by limiting the scope of his proposal in subsections (4) and (5) of his version of Section 171E, by providing, in subsection (6), for prosecution proceedings to be brought only by, or on behalf of, the local planning authority; and by introducing a defence against prosecution in subsection (7).
Nevertheless, I have to say that we see three strong objections to the noble Lord's amendment. First, it is too complicated to provide a satisfactory basis for a criminal offence. This is particularly true of the provisions in subsections (4) and (5) which introduce such planning concepts as,
"areas of high landscape value"
and
"development within the curtilage of a single dwellinghouse incidental to the enjoyment of the dwellinghouse as such".
While these terms mean something to planning practitioners, they will mean little or nothing to people who may be put at risk of prosecution for this offence.
Secondly, we doubt whether it would be apt to confine the offence provisions to the designated areas specified in subsection (4). The fact is that equally

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flagrant breaches of planning control occur in places where there is no protection from one of these designations. That point was made by my noble friend Lord Wade. If unlawful development were to be made a criminal offence, people living in non-designated areas might well think that they should also be protected. The pressure on the Secretary of State to specify many other areas, in accordance with the power in the proposed subsection (4), might be hard to resist.
Thirdly, designated areas inevitably involve drawing boundary lines on maps. The result is that people who are just outside those boundaries often experience great dissatisfaction. This is particularly true of the boundaries of conservation areas. Where, for example, the boundary of a conservation area is drawn along the line of a street, why should people living on the wrong side of the street be deprived of the presumed benefits of criminalisation which the people living the right side of the street would obtain? In the Government's view, these disadvantages make the noble Lord's revised version of criminalisation unacceptable in practice. My noble friend Lord Wade made the point clearly that if those areas that are not designated do not, as he suggests, enjoy benefits of criminalisation, it is creating a two-tiered approach to the issue. My response to these amendments inevitably appears negative. However, I want to conclude by emphasising again that the Government's response in the Bill to unlawful development is comprehensive and extremely positive. I remind noble Lords of its main features.
First, we are giving planning authorities better powers of investigation by means of the planning contravention notice and improved rights of entry. Secondly, we are introducing the new breach of condition notice, so that planning authorities can deal quickly and more effectively with breaches of planning conditions. Thirdly, we are making enforcement notices easier to use and more efficient in operation. Fourthly, we are providing for stop notices to prohibit residential caravan sites, which result in some of the most serious complaints about unlawful development. Fifthly, we are enabling planning authorities to seek an injunction in order to curb the activities of the most serious contravenors of planning control. These are the people with whom the District Planning Officers' Society are so concerned. Sixthly, we are increasing the maximum summary penalty for an enforcement notice or stop notice offence from £2,000 to £20,000, and providing for any financial benefit to be taken into account in imposing a penalty for one of these offences.
These powers will, in our view, enable all planning authorities who use them resolutely and effectively to maintain control over the most serious planning contraventions. We do not think that criminalisation need be added to them.
Finally, criminalisation will not of itself remedy the harmful effect of unlawful development. Remedial action will usually still be essential. That means issuing an enforcement notice which can require steps to be taken within a specified compliance period. What criminalisation could very well produce, if it were
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enacted, is two parallel enforcement systems. On one approach, the planning authority might initiate a summary prosecution. But it would also need to issue an enforcement notice in order to remedy the damage which had occurred. So, while the magistrates are hearing the prosecution's case, the Secretary of State might also be dealing with an enforcement appeal.
Even if the magistrates then fine the contravenor, a remedy for the harmful results of his contravention must await the outcome of the enforcement appeal.
Criminalisation will certainly not make for good administration and we are not persuaded that it will contribute anything worthwhile to the fundamental purpose of enforcement which is to provide a speedy and effective remedy for the harm caused by breaches of planning control. I hope that these amendments will be not be pressed.
Lord McIntosh of Haringey: My Lords, before the Minister sits down, since I have no right of reply to the debate, perhaps I may say this through her to the noble Baroness, Lady Gardner. I was so appalled by the travesty of the reply that we have just heard from the Minister to my amendment that if the noble Baroness wishes to put her amendment to the House, I shall advise my friends to support it.
Baroness Gardner of Parkes: My Lords, I have listened carefully to what my noble friend the Minister has said and to the various points made by different speakers. I feel that the comments that have been made show that a degree of confusion exists on this issue. My noble friend Lady Carnegy of Lour talked about reconciling all interests and not creating a situation where one person is set against another. That is precisely why we have proposed the amendment in this form. It would not deal with minor breaches. It would only catch a person who knew well that he was doing wrong.
The noble Lord, Lord McIntosh, referred to areas of special interest. Whether one considers those areas are enlarging or shrinking depends on which side one is on. We need to make this abuse a criminal offence to ensure maximum protection for all those people who may be adversely affected by the activities of a few outlaws. To clarify the situation for the noble Lord, Lord Wade, and in reply to the point made by my noble friend the Minister, I should say that I am not suggesting divisions whereby one side of a road has one law, and the other side of the road has another. I am suggesting that the same protection should apply to everyone. Therefore, I agree with the Minister that the proposed subsection (4) in the amendment of the noble Lord, Lord McIntosh, is not acceptable.
Some of the Minister's comments were totally at variance with those made by other Members of the House. The noble Earl, Lord Selkirk, said that the body of people fully understood what they were allowed to do. I can see that the noble Earl genuinely believes that that is the case. However, many people have no idea exactly what they can or cannot do with planning permission. The people who know full well what they can do and what they can get away with are the very cowboys that we are out to catch by this

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amendment. The proposed subsection (7) of the amendment standing in the name of the noble Lord, Lord McIntosh, covers the person who does not understand what he can and cannot do. If a person can prove that he has submitted a written application and has made efforts to find out whether planning permission was required, that would constitute a defence. Therefore that problem is covered by the noble Lord's amendment. It is important to have that right of inquiry and to be able to submit that as a defence.
I did not understand the Minister's comments when she referred to a measure which we all wish to see. I thought we all wanted to see cowboys brought to account. I understood that the Minister agreed with the principle of what we are talking about. However, then she referred to the proposed subsections (4) and (5) of the amendment standing in the name of the noble Lord, Lord McIntosh. I did not understand what the Minister's final position was, except that she did not agree with the amendment. I ask the Minister —I realise the Minister would need to ask the leave of the House to do this—to clarify her comments. Is she prepared to consider this kind of amendment in a modified form which would combine the proposed subsection (7) of the amendment of the noble Lord, Lord McIntosh, with the amendment standing in my name?
The proposed subsection (6) of the amendment of the noble Lord, Lord McIntosh, could be amended to include a reference to the Secretary of State. The noble Lord, Lord McIntosh, agreed that that would be a desirable change. The proposed subsection (7) of the noble Lord's amendment provides a clearly set out defence to cover anyone who had attempted to obtain an answer in writing. Will the Minister tell me whether she is prepared to reconsider this matter between now and the next stage of the Bill? If she can confirm that that is the case, we should give her the opportunity to reconsider the matter. The House would welcome more time to reconsider the matter.
If, however, there is no question whatsoever of reconsidering the amendment, that is a different matter. I cannot accept that the provision would not represent another efficient weapon in the armoury of a planning authority. It constitutes a deterrent and it would make people think twice about their actions.
As regards whether a person's intentions are too difficult to prove, I should say that the words "well knowing" that appear in my amendment were drafted by a Law Lord. That Law Lord discussed the matter with a Criminal Law Lord. The latter person considered the words "well knowing" to be very much in accordance with criminal law. He said the words were fully understood in criminal law cases.
I do not for a moment consider myself to be an authority on this matter. However, the people I have consulted are authorities on the matter and they believe the wording would cause no problems in a criminal court. From my limited experience as a magistrate, I believe that cases are based upon legal principles. Apparently there is a well established
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precedent for the words "well knowing". I am reluctant to divide the House on this issue as this matter is close to agreement. I hope the Minister will reconsider it. Again I ask her to comment on whether the Government are prepared to consider the matter further. If that is not the case, I shall regretfully have to divide the House and, if necessary, return with the amendment on Third Reading.
5.15 p.m.
Baroness Blatch: My Lords, with the leave of the House, I should say that when we discussed this matter in Committee, I said that if we take the system as it is at the moment, we are still talking about relatively few instances where there is serious abuse of the system. I also said at that time that we hoped that when this raft of measures was in place—I refer to many of the measures that I have mentioned in responding to these amendments—the cases of blatant abuse would become even rarer.
The noble Baroness also asked me to comment on the advice given to her by the noble and learned Lord, Lord Brightman, on the wording of her amendment. We have spent a long time considering the amendment. The point that was brought home to me during that consideration was that in most of the cases that the noble and learned Lord, Lord Brightman, referred to, the process of trying to determine bad or known intentions is a precise science. A number of people have pointed out that planning is not a precise science. Often planning is a matter of interpretation and it contains many grey areas. Indeed the Association of Metropolitan Authorities made that point when it gave evidence for the Carnwath Report. Therefore we believe that that point would cause difficulties.
However, the point that brings us all together is that we still believe that even under the new system there will always be a small group of people who will continue to abuse the system. We have tried hard to find a form of words to cover the situation. We have considered the words used by my noble friend Lady Gardner and we have looked for words ourselves. However, I am afraid that we have come up with nothing. I would be raising expectations unnecessarily if I said we could fruitfully spend even more time looking at a form of words that would meet everyone's aspirations. We see so much that is wrong with the amendment of the noble Lord, Lord McIntosh, that clearly it would not be acceptable. In response to my noble friend's amendment I should say that we believe that when all the measures are in place this matter will almost cease to be an issue.
Baroness Castle of Blackburn: My Lords, with the leave of the House I wish to say a few words as I am a signatory to the amendment. I wish to make my position clear.
Noble Lords: Order!
Viscount Astor: My Lords, the noble Baroness is out of order. I remind her that we are on Report.
Baroness Gardner of Parkes: My Lords, the comments that my noble friend has just made confused me even further. She has admitted that

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people will continue to abuse the system no matter what provisions are introduced by the Government. Therefore it appears that the position will remain the same and the abuse will be just as bad as before. The noble Baroness said that there would only be a few cases of blatant abuse. We all know there will only be a few such cases. That is the position now. If she is convinced, however, that those cases of abuse will remain, I am even more convinced that such abuse should become a criminal offence. One cannot ignore the effect that one person's actions in disregarding all planning controls may have on friends, neighbours and even visitors to an area.
The point about "well knowing" is intended to make the position clear. Someone may start a development without planning permission. If a planning official goes along and says, "You require planning permission for that development", and the developer does not apply for planning permission, he is certainly "well knowing" that planning permission is required. It would surely not be very difficult to establish that that person was continuing with what they were doing even after having been told that it was in breach of the planning law.
I had hoped that we would find a solution to the matter, and I regret that I shall have to press the amendment.
5.20 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 81; Not-Contents, 130.

Division No. 1

CONTENTS

Airedale, L.

Howie of Troon, L.

Ardwick, L.

Hunt, L.

Aylestone, L.

Hutchinson of Lullington, L.

Birk, B.

Jay, L.

Blackstonce, B.

Jeger, B.

Bonham-Carter, L.

Jenkins of Hillhead, L.

Broadbridge, L.

Jenkins of Putney, L.

Brooks of Tremorfa, L.

John-Mackie, L.

Bruce of Donington, L.

Kirkhill, L.

Carter, L.

Knollys, V.

Castle of Blackburn, B.

Lockwood, B.

Cledwyn of Penrhos, L.

Longford, E.

Clinton-Davis, L.

Lovell-Davis, L.

Cocks of Hartcliffe, L.

McIntosh of Haringey, L.

Cornwallis, L.

Mackie of Benshie, L.

David, B.

Mason of Barnsley, L.

Dean of Beswick, L.

Meston, L.

Donaldson of Kingsbridge, L.

Milner of Leeds, L.

Dormand of Easington, L.

Monk Bretton, L.

Ennals, L.

Monson, L.

Falkland, V.

Morris of Castle Morris, L.

Gallacher, L.

Nathan, L.

Galpern, L.

Nicol, B.

Gardner of Parkes, B. [Teller.]

Ogmore, L.

Gladwyn, L.

Peston, L.

Grantchester, L.

Phillips, B.

Grey, E.

Pitt of Hampstead, L.

Hanworth, V.

Prys-Davies, L.

Harris of Greenwich, L.

Raglan, L.

Hatch of Lusby, L.

Rea, L.

Hayter, L.

Rochester, L.

Henderson of Brompton, L.

Ross of Newport, L.

Hollis of Heigham, B.

Sainsbury, L.

Hooson, L,.

Serota, B.

Houghton of Sowerby, L.

Shepherd, L.

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Stedman, B.

Whaddon, L.

Stoddart of Swindon, L.

White, B.

Strabolgi, L.

Wigoder, L.

Tordoff, L. [Teller.]

Winstanley, L.

Turner of Camden, B.

Winterbottom, L.

Underhill, L.

NOT-CONTENTS

Acton, L.

Long, V.

Alexander of Tunis, E.

Lothian, M.

Allenby of Megiddo, V.

Lucas of Chilworth, L.

Allerton, L.

Lyell, L.

Ampthill, L.

Lytton, E.

Arran, E.

McAlpine of West Green, L.

Astor, V.

McColl of Dulwich, L.

Auckland, L.

Mackay of Clashfern, L.

Barber, L.

Macleod of Borve, B.

Bauer, L.

Mancroft, L.

Belhaven and Stenton, L.

Manton, L.

Belstead, L.

Margadale, L.

Bessborough, E.

Merrivale, L.

Blatch, B.

Mersey, V.

Blyth, L.

Milverton, L.

Boardman, L.

Mottistone, L.

Borthwick, L.

Mountevans, L.

Brabazon of Tara, L.

Mowbray and Stourton, L.

Brougham and Vaux, L.

Munster, E.

Caithness, E.

Murton of Lindisfarne, L.

Campbell of Alloway, L.

Nelson, E.

Campbell of Croy, L.

Nelson of Stafford, L.

Carnarvon, E.

Newall, L.

Carnegy of Lour, B.

Norrie, L.

Carnock, L.

Onslow, E.

Cavendish of Furness, L.

Oppenheim-Barnes, B.

Clanwilliam, E.

Orkney, E.

Coleraine, L.

Orr-Ewing, L.

Colville of Culross, V.

Oxfuird, V.

Cottesloe, L.

Pearson of Rannoch, L.

Craigavon, V.

Pender, L.

Davidson, V. [Teller.]

Peyton of Yeovil, L.

Denham, L. [Teller.]

Plummer of St. Marylebone, L

Dilhorne, V.

Quinton, L.

Eden of Winton, L.

Radnor, E.

Elles, B.

Reay, L.

Elliot of Harwood, B.

Renton, L.

Elphinstone, L.

Renwick, L.

Elton, L.

Rippon of Hexham, L.

Faithfull, B.

Rodney, L.

Fanshawe of Richmond, L.

Saint Albans, D.

Fortescue, E.

Salisbury, M.

Fraser of Carmyllie, L.

Saltoun of Abernethy, Ly.

Fraser of Kilmorack, L.

Selkirk, E.

Gibson-Watt, L.

Skelmersdale, L.

Gisborough, L.

Somerset, D.

Gray of Contin, L.

Stanley of Alderley, L.

Greenway, L.

Stodart of Leaston, L.

Grimston of Westbury, L.

Strange, B.

Haddington, E.

Strathcarron, L.

Harmar-Nicholls, L.

Strathclyde, L.

Harmsworth, L.

Strathmore and Kinghome, E.

Haslam, L.

Sudeley, L.

Henley, L.

Swinfen, L.

Hives, L.

Teviot, L.

Holderness, L.

Thomas of Gwydir, L.

Hood, V.

Trefgarne, L.

Hooper, B.

Trumpington, B.

Hylton-Foster, B.

Waddington, L.

Ingrow, L.

Wade of Chorlton, L.

Jellicoe, E.

Wigram, L.

Jenkin of Roding, L.

Wise, L.

Johnston of Rockport, L.

Wyatt of Weeford, L.

Lauderdale, E.

Wynford, L.

Lawrence, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.28 p.m.
[Amendment No. 8 not moved.]
Clause 27 [Planning contravention notices]:
Baroness Blatch Baroness Blatch moved Amendment No. 9:
Page 33, line 45, leave out paragraphs (a) and (b) and insert ("that he had a reasonable excuse for failing to comply with the requirement.").
The noble Baroness said: My Lords, Amendment No. 9 was spoken to with Amendment No. 6. I beg to move.
On Question, amendment agreed to.
Clause 2[Enforcement of conditions]:
Lord Meston Lord Meston moved Amendment No. 10:
Page 4, line 16, after ("operations") insert ("or caused or permitted the operations to be carried out").
The noble Lord said: My Lords, Amendment No. 10 is concerned with the new Section 187A introduced by Clause 2 of the Bill. That new section provides for the service of a notice if conditions to which planning permission is subject are not complied with. The notice is to be served on someone described as the "person responsible". There does not appear to be a right of appeal against the service of the notice. Furthermore an offence is created if the notice itself is not complied with. It is therefore likely that the words of the new section will be strictly construed by the courts. It is important therefore that the notice is or can be served on the person who is truly responsible for what is going on or for what is not going on.
As drafted, Section 187A describes the person responsible as:
"any person … who is carrying out or has carried out the operations".
That would certainly include the contractor doing the work which is giving offence, but it might well stop there and go no further. Presumably it ought to include—clearly it seemed to include—the owner or developer who in fact is responsible. Indeed, the person responsible may be someone who has already sold on and he may try to use that as an excuse.
Comparison with the provisions for service of a stop notice is of use in this context. The provisions of Section 183 of the principal Act are far wider. A stop notice can be served on any person who appears to have an interest in the land as well as anyone who appears to be engaged in any activity. If the person responsible is wrongly identified by the local planning authority, the objective of the new section will fail and problems will be created.
The purpose of this amendment is to ensure that the notice is aimed at the right target. I beg to move.
The Lord Advocate (Lord Fraser of Carmyllie): My Lords, we appreciate the intention that lies behind this amendment. If the person who is really responsible for a breach of condition against which the breach of condition notice is directed is the owner or occupier of the land who has perhaps ordered a builder, as his agent, to carry out the operations, it will seem harsh that the agent, who assumes that he is acting lawfully in carrying out the owner's or occupier's instructions, should be at risk of committing an offence. However,
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if the amendment is apt for operations being carried out on land, it should also be apt for the case where an agent is using the land in breach of a condition at the instance of the owner or occupier.
I would wish to take more time to study the purpose and effect of the noble Lord's amendment. My noble friend Lady Blatch will write to him as soon as possible about the Government's intentions. If we conclude that an amendment is necessary, arrangements will be made to table it at a later stage of the Bill. With that brief explanation and assurance, I hope that the noble Lord will not feel the necessity to press his amendment.
Lord Meston: My Lords, I am most grateful to the noble and learned Lord for the indication. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Injunctions restraining breaches of planning control]:
Viscount Astor Viscount Astor moved Amendment No. 11:
Page 5, line 24, leave out ("they think") and insert ("the court thinks").
The noble Viscount said: My Lords, this amendment addresses the concern about a drafting point in Clause 3 of the Bill which the noble Viscount, Lord Bledisloe, expressed at Committee stage. We have taken advice on this point and the amendment that we now propose is to substitute the words "the court thinks" for the words "they think" in line 24 on page 5.
I am grateful to the noble Viscount for raising the matter and hope that he and other noble Lords will find this amendment acceptable.
On Question, amendment agreed to.
Clause 4 [Time limits on enforcement action]:
Lord Meston Lord Meston moved Amendment No. 12:
Page 6, line 29, after ("that") insert ("further").
The noble Lord said: My Lords, this is a matter purely of drafting which I hope that the Government may think desirable if not essential. The new Sections 171A and 171B will provide for time limits on enforcement action. The proposed Section 171B(1) provides that:
"no enforcement action may be taken after … four years".
However, there is provision in Section 171B(4) (b) which allows the clock to be stopped and indeed put back if enforcement action is taken in the four-year period and further action is necessary in the ensuing four years.
It has been represented to me that as drafted the proposed subsection is somewhat obscure. Perhaps it is unfair to describe it as obscure but it is not easy to understand. It is important that it should be expressed with some clarity because it is concerned with time limits for lawful action. The subsection with which this amendment is concerned contains the expression "further enforcement action" and later uses the words "enforcement action". It refers also to "that action". The expression "that action" is meant, I think, to refer to the further action. In an attempt to add some clarity to a somewhat confusing provision, I beg to move this amendment.
Lord Fraser of Carmyllie: My Lords, again the noble Lord's helpful intention in moving this amendment is understood but I am bound to say that we consider that the additional word would be superfluous in interpreting the subsection. If he looks at the words "that action" in line 29, he will see that it quite clearly refers to the words "further enforcement action" in line 27. We do not think that additional words are needed for the avoidance of doubt. He may disagree somewhat but if he reconsiders the matter and looks again at the words in line 29, tying them up with line 27, perhaps he will accept that he does not need to press his amendment.
Lord Meston: My Lords, I certainly do not want to press the amendment and do not seek to add superfluous words. I am sure that the meaning is quite clear to the noble and learned Lord. It is tolerably clear to me. However, it may not be clear to those who are not lawyers and need to look at the provisions quickly in order to see what can or cannot be done. However, I do not feel strongly enough to press the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Enforcement notices]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 13:
Page 6, line 40, leave out from beginning to end of line 1 on page 7 and insert:

(" (1) 'Where it appears to the local planning authority that there has been a breach of planning control they may—

(a) issue a notice (in this Act referred to as an "enforcement notice"); or

(b) require an application for a certificate of lawful use or development to be submitted by the owner or occupier of the land, or the person who has carried cut operations on the land or used it for any purpose, as provided in section 191.

(2) If following an application made under subsection (1) (b) a local authority issues a certificate then no fee shall be payable under regulations made by virtue of section 303.

(3) If an application made under subsection (1) (b) is refused a local authority may require an application for planning permission to be submitted under the provisions of section 62.

(4) Any application made under subsection (3) shall incur a fee five times that payable for an application submitted under the provisions of section 62 under regulations made by virtue of section 303.

(5) Where an enforcement notice is issued it shall be served—").

The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 24 and 25. The amendment deals with the issue of retrospective planning permission. We discussed this matter at Committee stage and I hope that the Minister may have been persuaded by the arguments and discussion that took place. At the moment the only tool that local authorities have for bringing unauthorised activity under planning control is the enforcement notice, which is basically a quasi-punitive procedure.
With this amendment we are, if I may coin a phrase, seeking a lighter touch for those uses which are also acceptable and so far are unauthorised but which
452
would have obtained planning permission had it been sought in a proper way. At Committee stage we approached this issue by proposing, where appropriate, the grant of retrospective planning permission. At that time the Minister put forward two arguments. First, it was argued that to accept that amendment would bypass the issue of whether a breach of planning control had taken place in the first instance. Secondly, she argued that this provision would remove proper scrutiny from the system, especially where conditions might be attached and also the right of appeal.
On reflection I do not think that we are persuaded by either of those arguments. To grant retrospective planning permission presumes proper scrutiny, and the right of appeal which the Minister suggested would be withheld—a right of appeal about being granted what you were seeking to obtain in the first place—seems an improbable right. If it were an issue of conditions, the local authority would in any case not go along the tracks of retrospective planning permission but almost certainly would seek an enforcement notice. The problem outlined by the Minister would therefore not have arisen.
However, in the light of the Minister's concerns, I suggest that the Government may consider the substance of that amendment but in a different garb, offering local authorities the additional tools not only of an enforcement notice but, where they suspect a planning offence, the power to require an application for a certificate of lawful use. If that application is refused after proper scrutiny, the local authority can require planning permission in the usual way with a more substantial fee attached, as Amendment No. 25 suggests.
At present certificates of lawful use can be triggered only by the appellant. The amendment allows the local authority to bring a certificate of lawful use into play as a way of legitimising retrospectively a use on land or property. I hope that the Minister finds the amendment acceptable.
Baroness Blatch: My Lords, is the noble Baroness expecting me to respond to Amendments Nos. 13, 24 and 25?
Baroness Hollis of Heigham: My Lords, yes.
5.45 p.m.
Baroness Blatch: My Lords, Amendment No. 13 to Section 172 of the 1990 Act is intended to provide planning authorities with two alternative procedures for dealing with what appears to them to be a breach of planning control. They would be able to issue an enforcement notice or require the submission of an application for the new certificate of lawful use or development. If a certificate is refused, the planning authority would be able to require an application for planning permission to be submitted to them, which would incur five times the normal planning application fee.
While we appreciate that the noble Baroness's amendment carefully seeks to overcome our objections to her Amendment No. 24 at Committee stage, there are still serious objections to this revised

453
proposal. First, it is important that in considering whether to issue an enforcement notice or require the submission of an application the planning authority should be required to consider whether it is "expedient" to do so, having regard to the provisions of the development plan and to any other material planning considerations. This obligation has existed in the Town and Country Planning Acts and has survived the test of time since 1947. Without that obligation appellants would lose an important ground for costs to be awarded in their favour where the planning authority has acted "unreasonably".
There are more fundamental objections to the noble Baroness's amendment. A common reason for developers to proceed without seeking a specific grant of planning permission is that, rightly or wrongly, they genuinely believe that what they are doing already has planning permission, either by virtue of a specific permission granted on an earlier application, or by virtue of the "permitted development rights" in the general development order; or they think they have deemed permission, or that no development requiring permission is involved. If the developer is right, there can be no justification for the planning authority to have the power to demand the submission of an application which may be unnecessary, even if the fee is refunded for a successful application. Other costs are involved; for example, the cost of employing a professional representative to submit and support the application or the time taken to deal with it personally. These costs can be a serious burden on a small business or private individual of limited means. They would often not be recovered.
The majority of developers do not carry out unlawful development deliberately or blatantly. Those who genuinely believe that they do not need planning permission or further permission for what they are doing, many with a perfectly arguable case, should not in our view be penalised subsequently if they are later proved wrong—perhaps on a complex point of planning law—by the imposition of a higher than normal fee.
If the planning authority is reasonably sure that a breach has occurred which it considers undesirable on the land in whole or in part for planning reasons, the right course is resolute enforcement action to secure its control or cessation. If a breach has occurred which it can live with, it should not be tempted to burden the already stretched planning system with an application which is a mere formality in order to obtain a fee. For those reasons I hope that the noble Baroness will not press Amendment No. 13.
The first amendment in the name of the noble Lord, Lord McIntosh, Amendment No. 24, concerns Section 175 of the 1990 Act. Its apparent intention is to provide that, where an appeal against an enforcement notice is made on any of the three remaining grounds (e), (f) or (g) in Section 174(2), the enforcement notice will nevertheless take effect on the date specified in the notice under Section 173(6). That means that the compliance period or periods specified in the notice under Section 173(7) for taking the
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required steps will run from that specified date, despite the fact that an appeal against the notice on grounds (e), (f) or (g) may still be outstanding.
While we appreciate that the success of an appeal on all or any of the grounds (e), (f) or (g) may not necessarily result in the notice being quashed—so that it may eventually have to be complied with—there are still serious objections to this amendment. A successful appeal on grounds (f) or (g) will result in the notice being varied in its requirements or compliance period, or both, depending on the merits. If this amendment were accepted, the original, almost invariably more onerous, requirements would have been complied with, however unreasonable, within a compliance period that was also subsequently found to have been unreasonable. An appellant is entitled to assume that his appeal on any ground may succeed and to act accordingly in the meantime. He should not be expected to comply with the notice until an appeal challenging its terms is determined. A developer could well find at the end of the appeal process that he has done more, and more quickly, than could reasonably be demanded of him to remedy what may be a relatively minor breach of planning control, perhaps carried out inadvertently in the first place.
Whether or not ground (a) in Section 174(2) has been pleaded, the "deemed application" for planning permission under Section 177(5) potentially arises in every appeal. It will be considered whenever the correct application fee has been paid. The grant of permission in these circumstances would make the requirement of the notice ineffective (by virtue of Section 180 of the 1990 Act); and where the notice had already been complied with, by virtue of this amendment, a great deal of costly work may have been carried out unnecessarily. The question of possible compensation might also arise.

Finally, the first Amendment No. 24 in the name of the noble Lord, Lord McIntosh, seems to imply that grounds (e), (f) and (g) are scarcely proper grounds of appeal. I hope that that is not his intention and that he will recognise the injustice which his amendment could cause. I invite him not to pursue it.
The second of the noble Lord's amendments, Amendment No. 25 concerns Section 177(5) of the 1990 Act. It provides that the fee payable for the "deemed application" for planning permission for the development to which the enforcement notice relates shall be five times the normal planning application fee where the enforcement notice appeal is made on grounds (a), (d), (e), (f) or (g) in Section 174(2) but the same as the normal planning application fee where the enforcement appeal is on grounds (b) or (c).
We can see no justification for an automatically larger fee to be paid where grounds (a), (d), (e), (f) or (g) are pleaded because the fact is that not all enforcement appellants are deliberate or persistent contravenors of planning control. It would not be practicable to identify and penalise the few who are. For the same reason, no such penalty is imposed now, or sought, on those who seek retrospective planning permission under Section 63 of the 1990 Act without enforcement notice having been served upon them.

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My department's practical experience of processing enforcement appeals is that many inexperienced or inarticulate appellants, even where they have professional representation, get their initial grounds of appeal muddled. It is not always possible to sort out exactly which grounds are most appropriate at the early procedural stages of appeals. It is often only when evidence is produced to one of our planning inspectors at a local inquiry that the correct grounds of appeal are finally ascertained and developed in argument. There is therefore no justification for this attempt to distinguish certain appeal grounds for fees purposes and applying a penalty to them.
Finally, Amendment No. 25 may well encourage the submission of an appeal on one or both of the grounds which are not proposed in the amendment to attract the larger deemed application fee. Experienced practitioners will be able to produce plausible arguments to support such grounds in order to avoid both the higher fee and a successful application by the council for its costs as a result of "unreasonable" behaviour in pursuing an unsubstantiated ground. In any event, the deemed application has to be considered, even if grounds (0 and (g) succeed and grounds (b) to (e) do not result in the notice being quashed, provided the correct fee has been paid.
Because of the difficulties inherent in the amendment, the fact that its purpose could easily be circumvented and the possibility of unfairness to indivichals, I hope that the amendments will not be pressed.
Baroness Hollis of Heigham: My Lords, I thank the Minister for that full and detailed reply. I wish to read her comments about Amendments Nos. 24 and 25 and, alter reflection, decide whether she has the substance of the case or whether we wish to return to it. I am still not persuaded by the Minister's comments in respect of Amendment No. 13. I am sure that she is right in saying that usually developers proceed because they believe that they have planning permission or, alternatively, that they do not need it.
Let us remind ourselves of the situation under the Bill. At present if a development does not have planning permission—where it is unauthorised—the local authority can bring only an enforcement notice against it. If the developer is unsure about the status of the development he can seek a lawful use certificate which will clarify the planning status of the land. However, the local authority cannot instigate such procedures which lead to a lawful use certificate; that is a less punitive way of seeking to establish the development status of the land. Amendment No. 13 would merely allow local authorities to have that extra tool and, therefore, a lighter touch when dealing with innocent continuing usages which have not come within the planning system.
It is a matter of anxiety. A local authority such as my own —that is Norwich—receives seven or eight inquiries per week about whether an activity is unauthorised and if so whether it needs planning consent. That procedure requiring a lawful use certificate would allow it to respond to such inquiries without bringing on board the heavy guns of an
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enforcement notice. Instead, the Minister suggested that local authoritites should opt for stringent enforcement. That suggestion would be more consistent had the Minister supported the earlier amendment moved by her noble friends Lord Renton and Lord Norrie, with the support of Members on this side of the House, making enforcement a general duty of local authorities. Having not made it a general duty but now to call on local authorities to be stringent in their enforcement is a little curious.
I must accept the Minister's reply and do not believe that it is sensible to pursue the matter to a Division at this stage. However, it is unwise of the Government not to allow local authorities to have a tool which is more innocent and less onerous than the enforcement notice presently enshrined in the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 14:
Page 8, leave out lines 5 to 7 and insert ("at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part to the period for compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased.").
The noble Baroness said: My Lords, I shall speak also to Amendment No. 17. These amendments are intended to improve the operation of the provisions of subsection (7) of Section 173 of the 1990 Act and the corresponding Scottish provisions which require an enforcement notice to specify the period within which any steps are required to be taken or any activities are required to cease. It will also enable the planning authority to specify different periods for different purposes. This period is generally known as the "compliance period". Its fundamental importance to the enforcement regime is that, once the compliance period has expired and any required step has not been taken or any activity has not ceased, there is a contravention of the enforcement notice. The planning authority may then decide to prosecute for an offence (under Section 179 of the 1990 Act) or take the remedial steps (using its power in Section 178 of the Act). There is thus an important connection to be made between Section 173(7) and Sections 178 and 179; and also with Section 183 which enables a stop notice to be served in certain circumstances before the expiry of the compliance period.
On further re-examination of the provisions of Section 173(7), as now drafted in Clause 5, and the Scottish provisions in Clause 34, we have been advised that more detailed provisions are necessary so as to remove any doubt that the planning authority may specify a different compliance period, if it considers it apt to do so, for any requirement that remedial steps shall be taken or specified activities shall cease.
The revised version of Section 173(7) also makes it clear, by the introduction of the words:

"references in this part to the period for compliance with an enforcement notice"

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that where the period for compliance is mentioned elsewhere in Part VII of the 1990 Act the intention is to refer to each compliance period in cases where an enforcement notice specifies more than one period. For example, as regards an illegal residential caravan site, the use of the land might be required to cease after a six-month compliance period while the period for removing hardstandings and access roads on the site might be nine months. An offence would occur after six months if the caravan site use had not ceased and after nine months if the hardstandings and access roads had not been removed.
Finally, the use of the words:
"the activity is required to have ceased",
at the end of the amendment puts beyond doubt the intention that any activity in breach of planning control must have ceased permanently by the end of the compliance period.
Although the amendments are rather lengthy, this is a useful tidying-up of these provisions. It is necessary to make the compliance period concept function satisfactorily in every foreseeable circumstance. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 15:
Page 8, line 23, leave out ("of this Act").
The noble Baroness said: My Lords, this is a drafting amendment to leave out the words "of this Act" after the words "under section 63", in subsection (9) of the new Section 173, which is in Clause 5 at line 23 on page 8. As this new section, when enacted, will be read as part of the 1990 Act, there is no need to include the words "of this Act". I beg to move.
On Question, amendment agreed to.
Baroness Blatch: moved Amendment No. 16:
Page 8, line 26, leave out from ("may") to end of line 27 and insert ("—

(a) withdraw an enforcement notice issued by them; or

(b) waive or relax any requirement of such a notice and, in particular, may extend any period specified in accordance with section 173(7).

(1A) The powers conferred by subsection (1) may be exercised whether or not the notice has taken effect.").
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 16A, 18 and 19.
These amendments result from a re-examination of the procedure in the new Section 173A of the 1990 Act, which is inserted into the Act by Clause 5, for the local planning authority to withdraw an enforcement notice. This re-examination of Section 173A was prompted by the remarks made by the noble Lord, Lord Carmichael, when he moved Amendment No. 27B in Committee. The noble Lord's point, reported at col. 1333 of the Official Report for 17th January, concerned the withdrawal of a notice whose purpose is spent.
We have concluded that the new section, and the corresponding Scottish provisions, can be considerably simplified while at the same time they achieve the main purpose of one of the relatively minor recommendations of the Carnwath Report; that was
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to enable the planning authority to withdraw an enforcement notice when it serves no useful purpose. We have also recognised that the consultation procedure provided by subsection (5) of new Section 173 will not work in practice when the planning authority wish to waive or to relax any requirement in an enforcement notice urgently. In that event, the notice period of 21 days provided by paragraph (b) in subsection (5) of Section 173A and the corresponding Scottish provisions would make it impracticable to waive or relax a requirement as quickly as the authority might wish.
What we propose is to amend subsection (1) so that the words:
"withdraw an enforcement notice at any time before it takes effect",
are omitted and the words in paragraphs (a) and (b) of the amendments are substituted for them, together with the new subsection (1A) in the amendments. This will give the planning authority a flexible power to withdraw an enforcement notice; or to waive or to relax any requirement of the notice; or to extend the compliance period whenever the authority considers it appropriate. Following those amendments, subsection (2) of Section 173A is to be retained because it is clearly right that the planning authority should notify people who are likely to be interested in the withdrawal or relaxation of the notice.
After subsection (2), we propose to omit subsections (3), (4), (5) and (6) in their entirety as being rather burdensome and, in one respect which I have already explained, impracticable to operate in some cases. We believe that these changes will achieve the result which the Carnwath Report sought; namely, to give planning authorities the power to withdraw a notice after it has taken effect while also maintaining the notification procedure in subsection (2). I beg to move.
On Question, amendment agreed to.
6 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 16A:
Page 8, line 33, leave out from beginning to ("The") in line 9 on page 9.
On Question, amendment agreed to.
Clause 30 [Enforcement notices]:
Baroness Blatch Baroness Blatch moved Amendment No. 17:
Page 38, leave out lines 8 to 10 and insert ("at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities; and, where different periods apply to different steps or activities, references in this Part of this Act to the period for compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased.").
The noble Baroness said: My Lords, I have spoken to this amendment with Amendment No. 14. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 18:
Page 38, line 29, leave out from ("may") to end of line 30 and insert ("—

(a) withdraw an enforcement notice issued by them; or

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(b) waive or relax any requirement of such a notice and, in particular, may extend any period specified in accordance with section 84AA(7) of this Act.

(1A) The powers conferred by subsection (1) may be exercised whether or not the notice has taken effect.").
The noble Baroness said: My Lords, I have spoken to this amendment with Amendment No. 16. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 19:
Page 38, line 36, leave out from beginning to ("The") in line 15 on page 39.
On Question, amendment agreed to.
Clause 6 [Appeal against enforcement notice]:
Baroness Blatch Baroness Blatch moved Amendment No. 20:
Page 9, line 33, leave out from ("notice") to end of line 34 and insert ("in accordance with section 173(7)").
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendment No. 29. These amendments are consequential on Amendments Nos. 14 and 17. The effect of the amendments is to provide a revised text for ground (g) in Section 174(2) of the 1990 Act, which is the last of the seven grounds of appeal against an enforcement notice. As proposed in the amendment, the amended ground (g) would provide:
"that any period specified in the notice in accordance with section 173(7) falls short of what should reasonably be allowed",
with corresponding amendments to the Scottish provisions.
In dealing with Amendments Nos. 14 and 17, I explained that a different compliance period may be appropriate for each of a number of different steps required by an enforcement notice, or for the cessation of specified activities. Where the planning authority specifies more than one compliance period in an enforcement notice, it is clearly right that an appellant should be enabled to appeal, under ground (g), against each compliance period in the notice, if he thinks it falls short of what should reasonably be allowed. This result is achieved by the amendments. I beg to move.
On Question, amendment agreed to.
The Principal Deputy Chairman of Committees (Baroness Serota): My Lords, in calling this amendment I should point out to the House that if it is agreed to, I cannot call Amendments Nos. 22 to 24.
Lord Coleraine Lord Coleraine moved Amendment No. 21:
Page 9, line 44, leave out from beginning to end of line 5 on page 10.
The noble Lord said: My Lords, I shall speak also to my Amendments Nos. 26 and 28 and to government Amendments Nos. 22, 23 and 27. Clause 6 deals with appeals against enforcement notices. As printed, the Bill provides that the leave of the court is required for an appeal to the High Court from a decision by the Secretary of State upholding an enforcement notice issued by a planning authority. The Bill goes on to provide that after the decision of the Secretary of State, the enforcement notice comes into effect unless the High Court orders otherwise.
In Committee I moved an amendment which pointed to the unfairness which would result if the
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enforcement notice came into effect and was subsequently quashed. The wretched landowner might suffer considerable loss by having the lawful use of his land curtailed. My amendment provided that in such cases compensation should be paid.
In reply, the Minister expressed sympathy for the case which I was making and I withdrew my amendment for further consideration.
Amendments Nos. 21 and 26 in my name provide for the effect of an enforcement notice to he suspended if leave to appeal to the High Court is granted. Government Amendments Nos. 22, 23 and 27 have the same general effect but go further and provide that the court may order the enforcement notice to have effect in whole or in part pending the final determination.
At this stage it seems to me that in such a case compensation should be paid if the enforcement notice is eventually quashed. My Amendment No. 28 provides for that. Since then I have heard from the Minister and she tells me that her amendments have the effect which my Committee amendment—the compensation amendment—sought to achieve. I do not expect to speak further about Amendment No. 28. Before I decide what to do on Amendment No. 21, I should like to hear my noble friend's explanation of her amendments. I beg to move.
Baroness Blatch: My Lords, government Amendments Nos. 22, 23 and 27 address the anxiety expressed by my noble friend Lord Coleraine when he moved his Amendment No. 32 during Committee stage of the Bill. My noble friend was concerned with the situation where under Section 289 of the 1990 Act the effect of an enforcement notice is no longer to be suspended by the submission of a further appeal to the High Court against the decision of the Secretary of State or planning inspector at first instance on an enforcement appeal.
He pointed out that when an appeal to the court under Section 289 succeeds, so that the decision at first instance is remitted to the Secretary of State by the court, and the eventual result is that the enforcement notice is quashed, the appellant would suffer financially if his business or other activity was prevented from operating during the process of the litigation and any redetermination of the enforcement appeal decision.
My noble friend's Amendment No. 32 proposed to deal with this problem by providing for compensation to be paid for any damage or loss incurred by the appellant as a result of his having to comply with an enforcement notice which had taken effect.

We have considered my noble friend's point very carefully and officials have discussed it with representatives of the Law Society. Our conclusion is that the problem can be dealt with equally satisfactorily without providing for any compensatory payment. In any event it would be difficult, as my noble friend recognised in his Amendment No. 32 in Committee, to decide who should make any compensatory payment in these circumstances.
Instead, we propose that when an appeal to the High Court, or Court of Appeal, under Section 289 of

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the 1990 Act, is given leave to proceed, the effect of the enforcement notice will remain suspended by virtue of the appeal under Section 289. This result is achieved by these three rather complicated amendments, which I shall explain.
The first two amendments would leave out the new subsection (4) which is proposed to be included in Section 175 of the 1990 Act, as it appears in lines 1 to 5 on page 10 of the Bill. In place of the proposed new subsection (4), the existing subsection (4) of Section 175 would be amended to provide that:
"Where an appeal is brought under Section 174 the enforcement notice shall, subject to any order under Section 289(4A), be of no effect pending the final determination or withdrawal of the appeal".
The effect of these amendments is that, unless the High Court or the Court of Appeal makes any order to the contrary, under the new Section 289(4A), the enforcement notice will remain suspended by an appeal under Section 289 of the 1990 Act. Consequently, somebody who would otherwise have been prevented by an effective enforcement notice from carrying on any business or other activities will no longer be prevented.
The third of these three amendments deals with the situation in the new Section 289(4A) of the 1990 Act, where the court may order that an enforcement notice shall be of no effect, or shall have effect as may be specified in the order, pending the final determination of the appeal.
This amendment is consequential on the first two amendments. Its effect is to reverse the present provision in Section 289(4A), so that the court would be enabled to order that the enforcement notice shall "have effect, or have effect to such extent" as may be specified in the order. This leaves open the possibility that, although the enforcement notice would normally be suspended, the court might order that it should have effect if there were some exceptional reason to justify making an order. In that event, we are advised that the court would usually grant such an order only on conditions. One condition would normally require the planning authority to give an undertaking in damages to the appellant. This would deal with the situation where the appellant incurred financial loss.
I appreciate the intention of my noble friend's three amendments, about which he has courteously written to me. As I have explained, we do not think the provision for compensation, in his Amendment No. 28 is appropriate if the effect of the enforcement notice remains suspended by the further appeal to the court. It is a procedurally complicated matter. However, I hope that my noble friend will now conclude that his justifiable anxiety is met by the government amendment and that he need not press Amendment No. 21.
Lord Coleraine: My Lords, I am encouraged by what my noble friend said. Although I shall wish to seek advice and may wish to return to the matter at a later stage or have it raised in another place, my first impression is that my noble friend has satisfied me and provided a formula which will satisfy the Law Society.
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I should like to raise one further point with my noble friend. It may be possible for her to give me an answer today. The problem with the government amendments, as she made clear, is that it is not apparent, and will not be apparent on the face of the Bill, what the amendments are achieving. The clause dealing with the application to the High Court has been amended so that the court can bring the enforcement notice into effect in whole or in part. Anyone reading that clause would not immediately realise that if the planning authority obtained the permission it would normally have to give an undertaking in damages.
Planning lawyers are not always litigation lawyers. The average planning lawyer seeing the clause as it is proposed would take an unduly dismal view of what might happen if he went to court and appealed. On the other hand, the local planning authority, seeing the wording of the clause, may feel that the matter was all cut and dried; that if it went ahead and asked for the enforcement notice to be brought into effect all would be all right.
Perhaps there is some way in which that could be made quite clear so that all those who have to deal with the clause know where they stand. I have in mind the possibility of a note in the Supreme Court Practice. Alternatively and preferably, perhaps my noble friend would consider in due course further amending subsection (4) (a) by providing at the end:
"and the court may make it a condition of the making of such an order that the party obtaining the order gives an undertaking in damages to the other party".
I do not know whether or not that is possible, but I feel that in some way it should be made clear that what the Minister says will happen does happen.
Baroness Blatch: My Lords, with the leave of the House perhaps I may say that I have been asked to consider the points raised by my noble friend Lord Coleraine. He gives an interesting interpretation of the amendments and goes on to make a suggestion. I promise to give careful consideration to all that he has said. I hope that the House will accept the government amendments on this occasion, and if we feel that it is necessary to amend to make further clarification, we shall return to the matter at Third Reading.
Lord Coleraine: My Lords, I am grateful to my noble friend for her remarks. I beg leave to withdraw Amendment No. 21.
Amendment, by leave, withdrawn.
6.15 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 22:
Page 9, line 44, leave out ("For") and insert ("In").
On Question, amendment agreed to.
The Principal Deputy Chairman of Committees: My Lords, in calling Amendment No. 23 I should point out to the House that if the amendment is agreed to I cannot call Amendment No. 24.
Baroness Blatch Baroness Blatch moved Amendment No. 23:
Page 9, line 45, leave out from ("appeals)") to end of line 5 on page 10 and insert ("after "shall" there is inserted "subject to any order under section 289(4A)"").
On Question, amendment agreed to.
[Amendments Nos. 24 to 26 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 27:
Page 10, line 24, leave out ("be of no effect, or shall have such effect") and insert ("have effect, or have effect to such extent").
On Question, amendment agreed to.
[Amendment No. 28 not moved.]
Clause 31 [Appeal against enforcement notice]:
Baroness Blatch Baroness Blatch moved Amendment No. 29:
Page 39, line 43, leave out from ("notice") to end of line 44 and insert ("in accordance with section 84AA(7) of this Act").
The noble Baroness said: My Lords, Amendment No. 29 was spoken to with Amendment No. 20. I beg to move.
On Question, amendment agreed to.
Clause 8 [Offence where enforcement notice not complied with]:
[Amendment No. 30 not moved.]
Clause 33 [Offence where enforcement notice not complied with]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 31:
Page 40, line 42, leave out ("is the occupier of or has") and insert ("has control of or").
The noble and learned Lord said: My Lords, in moving Amendment No. 31 I shall speak also to Amendment No. 32. They amend Clause 33 for Scotland and parallel government amendments made at Committee stage to the corresponding clause for England and Wales, Clause 8. They are essential drafting changes.
I should like also to give notice of my intention to bring forward at Third Reading other minor and consequential amendments which will be necessary either to parallel provisions already made for England and Wales or essential drafting changes to the Scottish legislation. For example, the Law Society of Scotland has drawn my attention to two minor amendments which are necessary for the correct operation of the Land Compensation (Scotland) Act 1973. Amendments to Schedule 15 of the Bill will be made as appropriate. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No.32:
Page 40, line 45, at end insert ("or cause or permit such an activity to be carried on").
On Question, amendment agreed to.
Clause 9 [Stop notices]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No.33:
Page 13, line 2, leave out ("of this Act").
The noble and learned Lord said: My Lords, this is a drafting amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 34 not moved.]
Clause 10 [Certificate of lawful use or development]:
Baroness Blatch Baroness Blatch moved Amendment No. 35:
Page 15, line 35, leave out ("of this Act").
The noble Baroness said: My Lords, this is a drafting amendment to leave out the words, "of this Act" in the new subsection (1) of new Section 193 of the 1990 Act, which is in Clause 10 on pages 15 and 16. I beg to move.
On Question, amendment agreed to.
Clause 11 [Rights of entry for enforcement purposes]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 36:
Page 17, line 18, at end insert ("or any other land").
The noble and learned Lord said: My Lords, in moving Amendment No. 36 I shall speak also to amendments through to Amendment No. 41, and Amendments Nos. 49 to 54.
The purpose of these amendments to subsections (1) and (2) of the new Section 196A, which Clause 11 inserts into the 1990 Act, and to subsections (1) and (2) of the new Section 91A of the Scottish Act, is to implement fully Recommendation No. 1 in the Carnwath report, dealing with improved rights of entry on to land for local planning authorities. That recommendation suggested that the right of entry should be,
"for the purposes of investigating any alleged breach on that land or on immediately adjoining land".
We now believe that it is right to give effect to what lies behind the latter part of that recommendation but would not restrict it to the language used of, "immediately adjoining land". The need to enter other land where it is not being suggested that the breach is occurring, is most likely to arise when what is apparently taking place in breach of control cannot properly be investigated by going on to the land where it is considered that the breach may be occurring. For example, part of the land may be thickly wooded or buildings may conceal what is happening from an observer who goes on to the main area of land where the breach is taking place. These amendments are intended to overcome that practical difficulty.
The power of entry in Section 196A is subject at all times to the planning authority having,
"reasonable grounds for entering the land then for the purpose in question".
We are not proposing a general right of' entry to land adjoining that in which the planning authority may be interested. There must be a justification and reasonable grounds for entering the land for an enforcement purpose. Authority in writing is required and the right of entry must be exercised at a reasonable time.
I hope noble Lords will agree that this is a necessary addition to planning authorities' right to enter land, and that they will accept the amendments. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 37 to 41:

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Page 17, line 21, at end insert ("in relation to the land or any other land").
Page 17, line 23, at end insert ("in relation to the land or any other land").
Page 17, line 26, at end insert ("in relation to the land or any other land").
Page 17, line 27, leave out ("the land then").
Page 17, line 32, leave out ("in respect of the land") and insert ("in relation to the land or any other land, if there are reasonable grounds for entering for that purpose.").
On Question, amendments agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 42:
Page 17, line 35, leave out ("any building used as").
The noble Lord said: My Lords, in moving Amendment No. 42, I should like also to speak to Amendment No. 43. Those of your Lordships who were present at Committee stage will recall that there was quite a lengthy discussion about the right of entry in relation to dwellinghouses. The Bill provides, quite rightly, that there should be more restricted right of entry to dwellinghouses by planning enforcement officers than there is to non-residential premises. A problem arises, which was identified at Committee stage, when premises are both residential and non-residential, that is, to distinguish between those premises which are mainly residential—such as a dwellinghouse with a workshop attached to it, for example—where clearly the residential considerations and the 24-hours' notice ought to be applied, and those where the residential use is quite incidental such as a factory, a workshop, a store or a warehouse which happens to have a caretaker's flat attached to it. It seemed to us that in the second case, where the residential use is incidental, access to the nonresidential part of those premises ought to be on the same basis as that for any other commerical or industrial premises.
Thus we are proposing in Amendment No. 43, which is the substantive amendment, that:
"nothing in this subsection shall restrict the reasonable exercise by an authorised person of the right of access under this section to any part of a building in which such a dwellinghouse may be situated, not being part of the dwellinghouse".
If the purpose of entry by an enforcement officer is to deal with a machine or a bank of machines which is causing a substantial nuisance to neighbours, for example, and the building happens to have a residential flat attached to it, then it would be only too easy for the occupier to remove the machine within 24 hours, receive the enforcement officer with a beaming smile, and when he went away to put back the machine. That does not seem to be the right way to proceed, and it certainly does not seem to be a right way to distinguish between one commercial or industrial premises and another.
The new amendments adequately safeguard the rights of people living in their own homes and at the same time close a potential loophole for nonresidential premises. I beg to move.
Lord Fraser of Carmyllie: My Lords, these two amendments effectively resume the discussion that we
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had on Amendments Nos. 69 and 70 tabled by the noble Lord at the Committee stage of the Bill. We have considered the noble Lord's point very carefully. We accept the principle of what he proposes; namely, that the 24-hours' notice requirement should apply only to the portion of the building which is used for the purpose of a dwellinghouse. However, we conclude that this result is already achieved by the provisions of Section 196A(4) as now drafted in Clause 11.
This is a little complicated, but I hope the noble Lord will bear with me. The interpretation derives from the definition of the term "building", which is to be found in Section 336(1) of the 1990 Act. That subsection provides that
"'building' includes any structure or erection, or any part of a building, as so defined, but does not include any plant or machinery comprised in a building;".
The vital point is that, when the word "building" is used anywhere in the 1990 Act, it means also any part of a building, by virtue of the definition to which I referred.
If that definition is then applied to the new provisions of Section 196A(4) the effect is that admission to any building, or any part of a building, used as a dwellinghouse shall not be demanded as of right unless the 24-hours' advance notification has been given to the occupier of the building. In the noble Lord's example, the occupier of the part of the building which is being used as a dwellinghouse in an industrial unit will be the caretaker to whom he referred. But his fear that the right of entry would not be available without advance notice to the nonresidential part of the building is not borne out in the light of the definition to which I have referred. It would be a requirement for the planning authority to notify the occupier of that part of the building which is being used for dwellinghouse purposes if they wished to enter it. However, the advance notice requirement would not apply to the main part which is not so occupied.
I hope that the noble Lord has managed to follow that with reference to the 1990 Act. I appreciate that he may wish to consider what I have had to say. I am certainly reassured that, while we agree with what he had to say, what he proposes is unnecessary.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble and learned Lord. I thought that I had every subsection of the 1990 Act at my fingertips. I am sorry to find that I am wrong in that. Incidentally, I am bound to say to the noble Baroness, Lady Blatch, that she accused me in an earlier amendment of being obscure when I spoke of a dwellinghouse and a curtilage. If she thinks that my Amendment No. 8 was obscure in relation to the explanation which has just been given, she is being selective in her perception.
I am happy to accept the assurance of the noble and learned Lord that the point of my amendments is covered. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 43 not moved.]
Lord Meston Lord Meston moved Amendment No. 44:
Page 18, line 21, at end insert ("and state the grounds on which entry has been authorised.").
The noble Lord said: My Lords, in moving Amendment No. 44, I speak also to Amendment No. 110A which stands in my name. In so doing, I accept that for completeness I should also have put down an amendment to paragraph 9 of Schedule 2, which has a similar topic—that is to say, rights of entry. It is correct, as has been pointed out to me, that I should also have considered an amendment to the possibly overlapping rights of entry which are contained in Section 324(1) (c) of the principal Act. With those reservations, I pursue Amendment No. 44.
The amendments are concerned with powers of entry given by the Bill. At Committee stage it was said that the powers of entry are of fairly substantial width and fiat we should always look particularly carefully at any proposal to give an official power to enter private property.
As drafted, the rights of entry given by the Bill quite correctly require the official concerned to have reasonable grounds for wanting to enter the property, and require him also to have proper authorisation to do so. Each of the subsections with which I am concerned obliges the official to produce evidence of his authority before entering if required to do so. But he is not obliged to state the grounds on which his authority has been based. I suggest to your Lordships that, if requested by someone having a reasonable basis for knowing why entry is required, the official should be obliged to say why he is there. It is not onerous for the official concerned. It is perfectly fair and proper from the point of view of the person being asked to give entry. It is less likely that that person will be obstructive and therefore put himself at risk of committing a criminal offence if he knows and has the right to know. For those reasons I beg to move.
6.30 p.m.
Lord Fraser of Carmyllie: My Lords, the effect of these two amendments would be to require a person authorised to enter land under the relevant provisions to state the grounds on which such entry had been authorised or, in the case of the latter clause, Clause 19, to state the purpose of entry. It would elaborate the existing provision that such a person shall, if required, produce evidence of his authority before entering the land.
I recognise the intention behind the noble Lord's amendments. I should like to consider the matter further and return to it at a later date. There is a possibility that there are two stages to this rather than one. Any person duly authorised in writing may be an official of the planning authority and he is always duly authorised. I am not quite clear whether the noble Lord is suggesting that there should be a separate authorisation on every occasion on which there is a right of entry to any particular premises. I understand what he is driving at. If he is prepared to withdraw the amendment we shall certainly look at the point again.
Lord Meston: My Lords, I am most grateful to the noble and learned Lord for that indication. I had hoped that the answer might have been that the
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authorisation which the official is obliged to present stated on the face of it the grounds on which the authorisation had been granted. That might be a simple way round the matter except possibly in the case of illiterate people or those who cannot read the English language. In that case some other device would have to be thought of. I am simply concerned that people who are obliged to afford entry to officials have the right to know why they have been authorised to enter. It is no more and no less than that. Based on the indication given by the noble and learned Lord, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 45:
Page 18, line 31, after ("land") insert ("or property").
The noble Lord said: My Lords, as discussed at Committee stage, this clause places a statutory obligation on the local planning authority to compensate any person interested in the land if it is damaged when the right of entry is exercised. However, there is no statutory right to compensation for damage to property—for example, to livestock or machinery. At Committee stage my noble and learned friend stated that the statutory right to compensation where damage has been caused to land has been included because a claim for damage to land in common law could be defeated by the defence of an authority carrying out its statutory duty.
However, the Government state that such a defence would not be available in the case of damage to property other than land. Therefore no statutory provision for compensation need be included since a claim for damages in common law could and would be successful. However, in practice it would be burdensome for the farmer to pursue through the courts what might be a relatively small amount of money. It would involve a greater risk of delay in settlement of the case. I feel that it would be much easier to deal with a claim for damages both for land and property by applying to the relevant local authority. Damage can be caused relatively easily by those not versed in farming matters—for example, when sheep are disturbed during lambing.
This amendment involves no public expense if local planning authority officers enter the land with care. It safeguards the legitimate interests of the farmer. Moreover, the amendment makes it simpler for the local authority to deal with any claim itself rather than waste its time and that of the farmer in pursuing the matter through the courts. That was recognised in Section 112 of the Water Resources Act 1963 and the Gas Act 1965. I am more than happy to read out the relevant passages if my noble and learned friend wants me to. If that measure applies to those Acts, why not to this Bill? I await my noble and learned friend's answer with interest unless he is minded to accept my amendment. I beg to move.
The Earl of Radnor: My Lords, it seems entirely logical that property should be protected in the same way as land. One tries to imagine an authorised person entering a farm. It is quite difficult to imagine how one could damage the land unless one used a bulldozer, an

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enormous tractor or something else of that kind. However, damage to property can happen easily and perhaps accidentally. The delays in courts and the trouble of going to common law will be a quite unreasonable burden to place on someone whose property has been damaged in this way. I hope that my noble and learned friend will accept the amendment.
Lord Fraser of Carmyllie: My Lords, I do not come out of my trench with my hands entirely up. After my noble friend's reference to the Water Resources Act 1963 and the Gas Act 1965, I must concede that he has something of a point. I should like to consider the matter further in the light of what he has said. Although he has made specific reference to the problem of the farmer, I am sure that he appreciates that if any change is made it would clearly apply on a broader basis than that. I hope that my noble friend will accept from me that my noble friend Lady Blatch will be writing to him in the near future on the matter, and will not press the amendment.
Lord Stanley of Alderley: My Lords, I am very grateful to my noble and learned friend for those remarks. He will find that the relevant passage is in subsection (8). I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No.46:
Page 18, line 34, leave out ("person") and insert ("authority").
The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 47, 57 and 58. The first amendment substitutes the word "authority" for "person" in order to make it clear that it is from the planning authority that any person whose land is damaged in the exercise of the right of entry may seek a compensatory payment in respect of that damage. The second amendment adds the words:
"or, as the case may be, the Secretary of State",
at the end of subsection (3). These additional words make it clear that when it is the Secretary of State who has authorised the right of entry to land for enforcement purposes, it is from him that any compensatory payment for damage may be recovered. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No.47:
Page 18, line 34, at end insert ("or, as the case may be, the Secretary of State").
On Question, amendment agreed to.
Lord Norrie Lord Norrie moved Amendment No. 48:
After Clause 11, 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 exercise their powers, so far as may be consistent with their functions under any other legislation, so as to—
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(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; and

(b) further the conservation and efficient use of energy and natural resources.").

The noble Lord said: My Lords, in moving this amendment I shall also speak to Amendments Nos. 73, 166, 169, 177, 179 and 188. This is a most important series of amendments. Without ignoring the economic and social considerations, they would place the environment firmly at the heart of the planning system. It is strange that there are so few references to the environment in primary planning legislation. The planning system is such an important tool of environment management that I would have expected to see a clearer framework of environmental responsibilities. There is plenty of government policy guidance and some secondary legislation on planning in the environment. The legislative backing is patchy and wholly inadequate at such an important time in the development of environmental policy.
Amendment No. 48 places a clear environmental duty on local planning authorities and the Secretary of State. I have likened it to the duty of stewardship which formed such a central part of the environment White Paper. The House will recall a similar amendment tabled at Committee stage. This amendment differs in at least one very important way. It ensures that environmental considerations are furthered only in so far as they do not conflict with local authority responsibilities in other legislation. Using wording based on the Water Act 1989 ensures that economic and social responsibilities are not forgotten.
Amendment No. 73 goes even further towards recognising economic and social concerns, and it would ensure better use of planning conditions to reduce damaging environmental impacts, but only after the planning permission has been granted. This also picks up a point made by my noble friend Lord Wade at Committee stage, when he said that we could not put a ring fence around issues such as the environment, although all developments should be treated sympathetically from an environmental point of view. I just hope that this amendment might achieve the results that my noble friend seeks.
Once we have decided that development should go ahead, I am sure that there is widespread support for ensuring that it does as little harm as possible to the countryside or to wildlife. It would, for example, mean that a new housing development might be accompanied by conditions to protect an important piece of marshland or some important trees, or that a new industrial site had a slightly longer access road to it in order to avoid a valued copse. Industry is already going to great lengths to show respect for the environment, and this amendment would encourage that trend. I hope that it can receive widespread support.
I now turn to Amendments 166, 169, 177, 179 and 188. They are slightly different in nature from

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Amendment No. 73, which brought the environment in at the end of the planning process. By contrast these amendments place it at the beginning when development plan policies are being drawn up. The Government have already recognised the importance of development plan policies in the conservation of natural beauty and amenity, and these amendments take matters one step further.
They place a requirement on local authorities to examine the way energy and other natural resources are being used in their area and then draw up policies to encourage their conservation. The Government have already recognised that local authorities should have particular regard to the conservation of energy as an issue in development plans, and this was actually published in the environment White Paper. This amendment could help turn it into reality.
The planning system could have a significant impact on our use of energy and of other natural resources if we allowed it so to do. Decisions over the pattern of new housing developments, the location of new shopping facilities in high streets or on the edge of towns and the mix of industry and housing all have a major impact on the generation of traffic and the energy that we use. Similarly, new developments all have impacts on scarce water or mineral resources which should be considered before development plans are drawn up.
I suggest that the conservation of energy is at least as fundamental an issue as the management of traffic, and yet we find that traffic is already in the legislation. If we are to begin to tackle some of the important environmental problems now facing us, we shall have to use all the weapons at our disposal, and the planning system is one of the most important in our armoury. I urge support for this series of amendments. I beg to move.
Lord Wade of Chorlton: My Lords, I thank my noble friend for referring to the fact that this is something that ought to receive much more sympathy from me, and I certainly understand what he is trying to achieve with the amendment. I am a great believer that development, particularly in rural areas, should be undertaken with as much sympathy and under standing of their environment as possible. Even so, I feel that these amendments, although much better than the previous ones, could still have a bad effect. particularly at this time. The effect of these amendments would be much greater on the rural economy than in any other part of our country.
In that respect we are going to have to go through considerable changes in the rural economy in the next few y ears. It is important that we do not bring legislation in through this Bill that might prevent the economic changes that will be necessary. Those who are elected representatives in these matters now have a big responsibility. It is laid down in legislation, and they have all accepted it, that they have a wide variety of responsibilities which they need to take into account. It would not be acceptable, particularly at this stage, to impose further conditions that the planners have to consider when they try to cope with the economic changes that will take place particularly
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in the rural economy and the rural communities. Therefore, I feel that it would not be right to accept this amendment.
I know that the Government are trying at some stage in their amendments to go towards the proposals that my noble friend is making. I hope that these will be acceptable and will go some way towards asking the planning authorities, having given permission and having considered all the economic factors that have to be taken into account in a development, then to try to insist upon building in the best possible environmental facilities. At the same lime it has to be done in such a way that the development is viable.
In presenting a number of the amendments relating to the environment it is easy for some of us—we all do this—to look out of our windows and see what we would like to see without thinking about the economic impact that many developments have on those who do not have the advantage of the views that we might enjoy. In looking at this planning legislation we have to see that it provides more wealth and opportunity for many parts of our country which have not yet had those opportunities.
Although I can appreciate the views of noble Lords where there has been intense development over a short period of time, it would be wrong of us to bring forward legislation that might prevent the further development that is so necessary in some parts of the country. Therefore, I cannot support these amendments even though I have considerable sympathy for what they are trying to achieve.
6.45 p.m.
Lord McIntosh of Haringey: My Lords, my name appears on Amendments Nos. 169 and 177 in this group, and my Amendment No. 189 has also been grouped with these. I follow on with some interest but some puzzlement the noble Lord, Lord Wade. If he is saying that our planning system ought to be geared to give advantage to economic development where that is desirable and compatible with the environment, then I entirely agree with him. But if he draws the conclusion from that that this Bill and other planning legislation should be drawn relatively strictly to confine itself to land use rather than to other economic and environmental issues, then I think he is behind the times. I think that those times have gone.
The planning system that has developed over the past 45 years or so in this country started originally simply as a land-use planning system. I t was based on the concept of zoning, with the theory—at least this was the theory of the Labour Government of 1945 to 1951—that, if you controlled the use of land, that would give you the control that you needed to secure that sustainable development (and I am using words now with hindsight which Lewis Silkin would never have thought of) could take place. I think that planning law has already gone a good way beyond that.
Part 1 of unitary development plans, of structure plans and of local plans already requires local authorities and planning authorities to carry out surveys in which they consider the economic

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characteristics as well as the physical characteristics of the area. It is already a necessary part of our thinking about land-use planning that we should consider the economic effects on the people living in the area. It is a short step from that to take advantage of the environmental pressure which is on all of us, and which is recognised by the Government's White Paper and indeed by policy documents from all the major parties, and to accede to, and agree with, the points made by the noble Lord, Lord Norrie, in moving Amendment No. 48. Therefore, in a sense, the battle for considering the environment when dealing with planning legislation is already won and we do not need to return to that issue.
I welcome the fact that, in addition, Amendments Nos. 169 and 177 make specific reference to,
"the consumption and distribution of energy and natural resources".
That is a natural concomitant of considering other aspects of the environment and the economy. If we plan the development of our countryside and our cities in such a way as not to take account of energy consumption and the need for energy conservation, we shall only be doing a partial job.
Finally, I turn to Amendment No. 189 which is rightly included in this group. It covers the issues of,
"transport, recreational and social infrastructure",
with the significant addition that this is considered,
"in advance of developments or changes of use of land".
That is an extremely important additional aspect of the use of development plans. In our view, it is essential that we should not be adapting the backwards theory of enterprise zones, and of the Isle of Dogs more generally, to other parts of the country. Much development has been encouraged on the basis that if you allow increases in land value to take priority, then somehow all the other considerations —that is, the social, the physical, the transport infrastructure, and so on—will follow. However, experience of those enterprise zones and urban development corporations which have taken that view and substituted land value planning for land use planning has been, to say the least, unfortunate. What is happening now is that you have to chase after the developers in order to provide the infrastructure. The cost in public money is certainly no less than it otherwise might have been, but the cost involved as a result of disruption and bad planning is very much greater.
I urge the House not only to accept the amendments tabled in the name of the noble Lord, Lord Norrie, and others, but also, with particular force, to accept Amendment No. 189 which calls for the provision of,
"transport, recreational and social infrastructure"
and refers to the need to have those considerations in the right order so as to provide the infrastructure before irrevocable commitments are made to developments which would call into question the need for such infrastructure.
Baroness Gardner of Parkes: My Lords, I do not believe that any of us could object to the heading of the proposed new clause which refers to a "General environmental duty". I support the proposal. However, it seems to me that we are so carried away with environmental issues that we sometimes become slightly mixed up in our views. I am always most concerned when I see sites of special scientific interest and areas of green belt which really seem to me to be landfill sites because they are full of discarded rubbish or have something on them which is so awful that they are nothing but an eyesore. Yet, despite that, there is a blanket attitude which states that such sites are an environmental issue and that therefore no development can be permitted to take place on them. I am very much in favour of keeping our large environmental patches in good condition. However, I also believe that we must take a realistic view in terms of development in relation to such areas. I do hope that that point of view will be considered.
I have another concern in respect of the general duties which are under consideration. It seems to me that, in personal attitudes towards planning law, everything is all right if it is happening in your area, but nothing is all right if it is happening in mine. That is a problem which we must bear in mind. In my view the concept of a general environmental duty is an important one.
Lord Renton: My Lords, I must first apologise to my noble friend Lord Norrie for having missed his introduction to Amendment No. 48. In fact I was attending a meeting in another part of your Lordships' House as I did not expect this very important group of amendments to be dealt with quite so soon. In my opinion we are now dealing with the most important group of amendments which has been put forward at this stage, as indeed was the case in Committee.
After we debated the matter at some length in Committee, my noble friend Lady Blatch kindly suggested that some of us should meet with her and her officials for further discussion. Therefore, along with some officials from the CPRE, several of us attended a meeting with her. I am most grateful to her for the way in which she tried to get as near to us as she could on the matter. However, she was not able to go quite so far as we strongly believe the Government should.
Surely it is acknowledged—even by my noble friend Lord Wade of Chorlton—that one of the main purposes of the planning system is to ensure that consideration is given to the protection of the environment when development takes place. With every year that passes, more and more anxiety is expressed about the conservation of the environment in our beautiful but very overcrowded and rapidly developing country.
It is not as though we are asking for anything extraordinary or indeed new. I say that because, as we pointed out on previous occasions, almost exactly the same words as those proposed were used in the Electricity Act 1957. Moreover, the same words were repeated in the Countryside Act, in the water and electricity privatisation Acts, and in other measures. I

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find it difficult to understand why, when it is such a necessary piece of dovetailing, we should omit this provision from our planning legislation. I support my noble friend Lord Norrie in that I believe there should be a "General environmental duty", as referred to in the Proposed new clause.
I should like briefly to refer to some of the other amendments in this group. The noble Lord, Lord McIntosh of Haringey, was very brief in his introduction; indeed, if I could be equally as brief I should be very proud. His amendments cover a good deal of ground. I should like first to refer to Amendment No. 73 which is tabled in my name and that of my noble friend Lord Norrie and the noble Baroness, Lady Hollis of Heigham. The amendment states:
"Where a local planning authority propose to grant planning permission",
under the circumstances referred to,
"they shall ensure, so far as possible"—
that is not an absolute obligation—
"that any authorisation includes such conditions as are required to mitigate any adverse effect which the proposal may have on the natural beauty of the countryside",
and so on. I should like to draw attention to the moderation of the phraseology. It is acknowledged that there may be an "adverse effect" because of the development. The fact that that condition is acknowledged should appeal to my noble friend Lord Wade. The development takes place just the same, but with the condition that the "adverse effect" shall be mitigated. Is that not sensible, reasonable and fair to all concerned?
Perhaps I may now refer to Amendments Nos. 166 to 169 which is a most interesting group of amendments. Here we have tried—I am not sure how successfully—to go in a direction which we hope and believe my noble friend Lady Blatch will welcome.
I note that in Amendment No. 170, which we welcome, my noble friend goes in the same direction. It is fair to say that if that amendment were accepted, Amendment No. 166 would not then be necessary.
Amendments Nos. 177 to 179, which are also amendments to Schedule 3, deal with structure plans and local development plans. I welcome Amendment No. 178. All that my noble friend has omitted is the conservation of energy and natural resources which we ha% e included in our amendment. There is nothing much between us there. We are going some way in the same direction.
As for the amendments in the name of the noble Lord, Lord McIntosh, I agree, and I have nothing to add. Those are famous judicial words. However, I return to the fundamental point, which is made in Amendment No. 48. It is a cause which I hope we shall not lose. There will be grave anxiety if the Government, who are environmentally pretentious and conscious, doing their best, fail to acknowledge that, overall, the planning system must be tested by its effect upon the environment and the other matters
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mentioned in the amendment. I hope that we shall receive a more sympathetic response than we have previously.
7 p.m.
Lord Stanley of Alderley: My Lords, I am suspicious about some of the amendments, especially Amendments Nos. 48, 73, 166 and 179, for the reasons given by my noble friend Lord Wade. I also feel that there is a touch of "nimbyism" in some of the amendments, as was intimated by my noble friend Lady Gardner. I understand what my noble friend Lord Renton is saying about having regard to the environment; but I fear that some of the amendments might merely encourage extreme greenism. "Extreme greenism" (if I may call it that) is counter-productive to the environment and its preservation. I hope that my noble friend will resist the amendments.
Baroness David: My Lords, I support this series of amendments, especially the one tabled by my noble friend Lord McIntosh. The noble Lord, Lord Renton, spoke with great passion about it and I sympathise with him. The anxieties of the three noble Lords opposite who were critical of the amendments are unnecessary. As politicians, we must put our faith in the environment and tell the public that we are going to do something about it. If we do not accept something like this series of amendments, it will be a great shame and will harm us overall.
The Government have gone a considerable way towards meeting the requests made in Committee. I hope that there can be a further meeting in which the matter can be tidied up before Third Reading. I should have thought that that was within the bounds of possibility. There is a meeting of minds and it would not take much to bring them completely together.
Baroness Blatch: My Lords, all these amendments deal in one way or another with the protection of the environment and I am aware that noble Lords of all political persuasions, as the noble Baroness, Lady David, has just said, share the Government's desire to see that aim furthered. Our debate today is about the best way in which that can be done. Government Amendments Nos. 170, 178 and 187 are intended to give effect, in a slightly different form, to those put forward in Committee by the noble Baroness, Lady Nicol. They provide for specific reference to be made in primary legislation to the inclusion of measures for the conservation of the natural beauty and amenity of the land when local planning authorities formulate policies and proposals for unitary development plans, structure plans and local plans.
The amendments honour the undertaking that I gave in Committee to table amendments designed to have substantially the same effect as those proposed by the noble Baroness, Lady Nicol, and I commend them to noble Lords. I turn now to Amendments Nos. 166, 169, 177, 179 and 188. Like the Government amendments I have just described, that group of amendments deals with the content of development plans. These amendments are superficially attractive,

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but I believe that they are unnecessary, and would tend to confuse rather than clarify the legislative framework for development planning.
Two of them relate to the duty placed on planning authorities by the existing legislation to
"keep under review the matters which may be expected to affect the development of their area or the planning of its development".
That duty, as at present drafted, required authorities to have regard to matters such as the principal physical and economic characteristics of their area; the size, composition and distribution of its population; and the communications, transport system and traffic. There is power for the Secretary of State to add to that list by order.
Those matters are all clearly and directly related to land use. There is an important distinction between the physical and demographic characteristics of an area, with which those surveys are concerned, and matters relating to the consumption and distribution of energy and natural resources. The latter would go much wider.
The same difficulties arise in relation to the content of plans. We want development plans, and the survey work which precedes them, to focus clearly on the development and use of land. The effect of these amendments would be to extend the scope of the plans into issues of conservation and resource management which are not solely land use issues. We do not see structure plans as some form of environmental corporate plan.
I should stress that the Government are not opposed to the underlying thought that planning authorities should have regard to the implications of land use planning policies for the consumption of natural resources and the conservation of energy, but that is an area where responsibilities are much better spelt out by way of guidance rather than in primary legislation. Schedule 3 makes it clear that authorities will be expected to have regard to current national policies in preparing their development plans. It is therefore open to the Secretary of State to issue guidance on matters such as the relationship between land use planning and energy conservation, and require planning authorities to have regard to it.
To give one instance, we have recently launched a major research project with the Department of Transport on the relationship between land use planning, transport patterns and energy consumption. When that research project is completed in the spring of next year, we may well want to issue new policy guidance to planning authorities on the relationship between land use patterns and energy consumption.
There is little if anything between us on the underlying principle, and the objectives which planning authorities should have in mind in preparing their plans. As I have already explained, we have accepted the suggestion of the noble Baroness, Lady Nicol, that there should be a specific reference in the legislation to "the natural beauty and amenity of the land"—because that is of direct relevance to policies for land use and development. That is reflected in the
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Government amendments, but, as I said, these amendments, as drafted, go much wider and would tend to blur rather than focus authorities' responsibilities.
Amendment No. 48 has the widest scope of all the amendments in the group. It would require local planning authorities and the Secretary of State to further the conservation, enhancement and protection of a specific range of environmental considerations, so far as is consistent with other duties, before reaching their decisions on planning matters. The Government's view is that the amendment is unnecessary. Further, it is positively undesirable. It would upset the balance that the planning system has to strike between all the aspects of land use which need to be considered whenever my right honourable friend the Secretary of State or local planning authorities exercise their powers under the planning Acts.
A similar amendment was tabled at Committee stage by my noble friends Lord Norrie and Lord Renton. I explained then that the local planning authorities are already required to take into account all the issues mentioned in the amendment. When dealing with planning applications, the authorities must, by virtue of Section 70(2) of the Town and Country Planning Act 1990, have regard to the material provisions of the development plan which will include policies on environmental matters and all other material considerations. My noble friends' amendment lists a number of considerations which are frequently material to planning applications. There is already therefore a statutory duty to take them into account.
This general requirement is reinforced by a number of specific provisions. 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".
Department of the Environment Circular 27 of 1987 explains that this covers the conservation of flora, fauna and geological and physiographical features. These issues are therefore already protected.
Similarly, buildings of special architectural or historic interest, conservation areas and ancient monuments are already protected by provisions in the Planning (Listed Buildings and Conservation Areas) Act 1990 and in the Ancient Monuments and Archaeological Areas Act 1979. These are supplemented by detailed guidance in Department of the Environment Circular 8 of 1987 and the department's planning policy guidance note 16, which explain how the powers should be used and draw attention to the relevant policy considerations.
The Government are far from resistant to making the planning system greener where this may be done appropriately. Our agreement at Committee stage to the principle of the amendments proposed by the noble Baroness, Lady Nicol, is evidence of that. Our own policy guidance already gives weight to environmental considerations, and we shall continue to update it to ensure that the latest thinking on these matters is taken into account. As was said in the environment White Paper last September, we intend

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to review all existing planning policy guidance to ensure that it fully reflects the Government's commitment to protect the environment.
This amendment would go much further. It would raise the protection of the natural environment above all other issues. It would mean that a local planning authority or my right honourable friend could approve a development without fear of having the decision overturned only if it or he could show that it would positively enhance the environment. If an otherwise desirable development were likely to damage the natural world, a local planning authority would feel obliged to refuse permission for it. This is an impractical proposition. In the real world, and in planning law as it stands, all the issues must be weighed against each other. Considerable weight must be given to environmental issues. That is clear and accepted. But it would be misconceived to legislate so that conservation should always outweigh any other consideration.
These points were well supported by my noble friends Lord Wade, Lord Stanley and Lady Gardner. My noble friend Lord Renton referred to clauses similar to the one in his amendment which had been included in previous Acts, notably the Electricity Act 1989, and I believe he mentioned the Water Act of 1989.
Lord Renton: The countryside Act.
Baroness Blatch: Yes, the countryside Act.
However, there is a difference. In those cases we were seeking to regulate private concerns, which would otherwise have proposed whatever developments were appropriate in their own best commercial interests. But in this measure we are dealing not with the developer but with the decision-maker. Moreover with a decision-maker which is an elected authority, democratically accountable, with statutory duties under the planning Acts. We are not seeking to impose restraint but to ensure balance. That is a different situation.
Lord Renton: My Lords, before the noble Baroness continues, if she is inclined to rely upon what has gone before and is making a distinction from it, she should bear in mind that the same provisions exist in the Wildlife and Countryside Act 1981 and the Agriculture Act 1986. It cannot be said that those were merely imposing obligations on the private interests or on, for example, quangos. They were of general application.
7.15 p.m.
Baroness Blatch: My Lords, I referred to the recent privatisation measures, but I take the point that my noble friend makes. Again, the distinction is that those duties put on the organisations mentioned by my noble friend involve a primary duty. The Countryside Commission, for example, has a primary duty to concern itself with the environment as it affects the countryside. The same applies to the other organisations. Here we are discussing planning authorities dealing with planning applications from a whole range of people which have to take into account and balance social, economic and environmental factors. The only
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point that divides us concerns giving supremacy to environmental factors over and above any other consideration. The efforts and commitment of the Government to making sure that this world is a better place as a result of the planning measures is, I hope, beyond doubt.
I wish to inform the House of the views of the Royal Town Planning Institute. Noble Lords will know that this is not an organisation populated by ruthless developers. The institute generally takes a keen interest in promoting the protection of the environment. However, in a recent letter to my department it states:
"In the Institute's view it would be wholly inequitable to place protection of the existing and natural environment above concerns relating to the human environment. To do so would produce a planning system whose overriding purpose was to resist change. The planning system should, however, be concerned to assess the needs for development along with the case for protection and conservation in reaching decisions that best reflect society's competing and conflicting demands on the use of land.
The Institute would therefore encourage the Department not to seek to place such an overriding and narrow environmental duty on planning authorities. Rather authorities should be advised that such concerns must be considered along with the wider social and economic issues. As indicated by Baroness Blatch this approach is best promoted through planning policy guidance rather than seeking to impose an overriding environmental duty".
At Committee stage I undertook to consider this topic further in discussion with my noble friends. They met me and we had a useful talk although we agreed to disagree on the point. My officials have also canvassed the views of a number of responsible organisations. We have found one body, the Association of District Councils, whose official supported my noble friend's amendment, in addition of course to the CPRE. But I have a list of organisations—as well as the RTPI—whose representatives opposed a general environmental duty: the RICS, the CBI, the Housebuilders' Federation, the District Planning Officers' Society, the Association of Metropolitan Authorities and the Association of County Councils. These are reputable, responsible bodies with much experience of the planning system.
I understand and sympathise with the objectives of my noble friends who have tabled this amendment. If it were necessary or appropriate I should support it, but the fact remains that it is neither of those things. It would introduce a wholly undesirable imbalance into the considerations that local planning authorities and my right honourable friend the Secretary of State have to take into account, and could very well present a major obstruction to necessary and desirable development. I therefore hope that my noble friends will agree to withdraw Amendment No. 48.
Amendment No. 73 would require local planning authorities, when granting planning permission, to impose conditions mitigating the effect of a development on the environment. This amendment is open to similar objections to those which I described in relation to Amendment No. 48. It would give too much weight to one element of the planning system, albeit an important one, perhaps at the expense of others.

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The Government's general policy on the use of conditions is that they should be imposed only where they are both necessary and reasonable, as well as enforceable, precise and relevant to planning and to the development to be permitted. More specific advice on the use of conditions is given in the Department of the Environment's Circular 27 of 1987. This says:
"In some cases, it may be desirable to attach to a planning permission any conditions which are necessary to minimise the impact on wildlife or physical features; it is particularly important to take steps necessary to prevent valuable geological formations which are important for education and research from being obscured by dumping or tipping, or where they appear as coastal outcrops, if possible from the effects of damage by coastal protection schemes".
The Government have already gone some way to address the issues that concern the noble Lords. However, if we went as far as the noble Lords wished, we would put the whole system out of kilter. I hope that this amendment will not be sustained.
I now turn to Amendment No. 189. There is, I believe, little between us on the policy—the need for development plans to take fully into account the implications which they have for investment in infrastructure. I entirely agree that it is most unsatisfactory if this planning is not done, and development takes place without adequate roads, schools or whatever. The planning authority should have regard to the likely availability of resources in drawing up its proposals, and plans should take account of the policies of the various implementing agencies. Local planning authorities should ensure that, when preparing and reviewing plans, there is sufficient consultation with providers of infrastructure. This will enable the suppliers of infrastructure to take account of the likely future scale and location of new development in drawing up their investment strategies. I agree with the noble Lord that the more these issues are sorted out at the stage of preparing the local plan, the less likely it is that they will prove contentious when individual development proposals come forward.
Our disagreement with the noble Lord is really on the technicality of whether it is right and appropriate to add these rather specific words to what is otherwise a very general description of the content of a local plan. If this particular matter is to be mentioned why should we not mention others, for instance, land for industrial use, shopping centres or open space?
All of these matters are already addressed in guidance issued by the Secretary of State to authorities in drawing up their development plan policies and proposals. We consider that it would not be appropriate for the current broad definition of a local plan in new Section 36 to become a long list of matters to be included in a plan. We agree on the policy, but we consider that the point made in this amendment is a matter for the Secretary of State's guidance to local authorities on the content of their local plans. In the light of my explanation, I hope the noble Lord will withdraw the amendment.
I apologise for the length of my remarks on this group of amendments. But to sum up, I want to stress
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to your Lordships that the Government will continue to listen carefully to all proposals for the protection of the environment. Wherever possible we shall accept them, as we have done in proposing the Government amendments in the group. However, I am afraid that, although we understand and sympathise with the other amendments, we do not believe that they fit workably with the principles of English planning law. I therefore hope that noble Lords will not press them.
Baroness David: My Lords, I should have said that, in the absence of my noble friend Lady Nicol, I wish to thank the Minister for tabling Amendments Nos. 170, 178 and 187. I know that my noble friend Lady Nicol would wish me to thank the Minister for tabling those amendments.
Lord Norrie: My Lords, we have discussed this group of amendments for some 44 minutes. I am grateful to my noble friend for taking so much time and trouble in replying to the amendments. However, I am slightly disappointed in that I cannot discern any changes in the position at the moment. We shall read Hansard and perhaps my noble friend will be prepared to discuss the matter with us again before the next stage. The prime movers of the amendment may wish to return to the matter at a later stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Astor: My Lords, I beg to move that further consideration on Report be now adjourned until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Ministerial and Other Pensions and Salaries Bill
Brought from the Commons; read a first time, and to be printed.
[The Sitting was suspended from 7.23 to 8.30 p.m.]

Planning and Compensation Bill [H.L.]
Consideration of amendments on Report resumed.
Lord Moran Lord Moran moved Amendment No. 48A:
After Clause 11, insert the following new clause:
"Meaning of development: fish farming in England and Wales
. After section 55(3) (b) of the principal Act (meaning of "development" and "new development") there is inserted—
"(c) the use of any buildings or other land or the carrying out of building, engineering or other operations in, on, over, or under land for the purposes of breeding or rearing fish or shellfish is not development for the purposes of agriculture, and in this paragraph "land" includes any land covered by water and extending seawards to the baselines from which the breadth of the territorial sea is measured."").
The noble Lord said: My Lords, in moving Amendment No. 48A which deals with fish farming in England and Wales I should also like to speak to Amendment No. 58A which deals with fish farming in Scotland.
At Committee stage a number of noble Lords expressed a wish to see greater control over fish

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farming, reflecting a widespread desire by many of the bodies concerned outside this House. The response of the Government was disappointing. They have not so far been prepared to go further than to say that building or engineering works for the purposes of fish farming within national parks should cease to enjoy permitted development rights. They have not been prepared to contemplate a similar extension of control outside the national parks—although I believe that that already applies throughout Scotland—the bringing of the use of buildings or land for fish farming itself within planning control, or the extension of planning control into coastal waters.
The amendments are designed to bring the use itself in inland or coastal waters within the definition of development. I should also like to see the permitted development rights for structures and buildings withdrawn outside as well as inside national parks. I understand that that would not involve any amendment to the primary legislation; merely a revision of the general development order.
The amendments are intended to cover the main points about fish farming raised at previous stages of the Bill. They apply both to fin fish farming—for example, salmon and trout farms—and to shellfish culture. They would apply to put-and-take shell fisheries in estuaries, for example, new proposals for oyster beds, mussel rafts or racks for culturing the alien Manila clam. They would not apply to traditional fishing of naturally occurring stocks.
The amendments are intended to apply to floating structures such as rafts and cages typical of certain operations. Those are the structures over land referred to in the amendment. The land in question is taken to include land covered by water as defined in Schedule 1 of the Interpretation Act 1978. The definition of land is further qualified so as to include land covered by internal waters, namely land in marine areas out to the baselines from which the territorial sea is drawn. Those thoroughly practical lines follow the low watermark along most open coasts. Moreover, in embayments, firths, inlets and estuaries baselines are drawn from point to point between headlands. Those are the areas—our bays, lochs and estuaries—where fish farming proposals are so controversial in environmental terms.
At an earlier stage of the Bill (at col. 1366 of Hansard for 17th January) the noble Viscount, Lord Astor, expressed the Government's view that a similar amendment would alter the longstanding definition of agriculture. What is wrong with altering a longstanding definition in law? It is surely the business of this House and of the legislature as a whole to alter definitions in law if that is appropriate whether or not they are longstanding.
It is a mistake to regard the culture of captive fish or shellfish as agriculture. The Oxford Dictionary defines agriculture as the science or practice of cultivating the soil or rearing animals. It defines aquaculture as the cultivation of plants or breeding of animal, in water. That is what fish farming is.
I was surprised that the Government suggested at an earlier stage of the Bill that there was insufficient evidence of difficulties to warrant the across-the-board
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introduction of planning controls over fish farming, as the noble and learned Lord the Lord Advocate said on 29th January (at col. 649 of Hansard). All fish farms create water pollution problems and the risk of pathogens or parasites affecting wild fish populations. There are rivers and freshwater lakes where they are certainly unwelcome in environmental terms. That last point has already been partially conceded by the Government in their acceptance of the recommendation of the Agriculture Select Committee in another place that permitted development rights for fish farming in national parks should be withdrawn.
The amendments seek to withdraw that right across the board. That is a course which is fully supported in England and Wales by the Association of County Councils, the National Rivers Authority, the County Planning Officers Society and the Council for the Preservation of Rural England. The amendments simply give planning authorities the right to consider individual proposals.
In the case of Scotland, covered by Amendment No. 58A, objections to the recent large number of salmon farming ventures have included intrusion into areas valued for their landscape quality, seabed pollution with waste food and fecal material, chemical pollution, the escape of farmed fish spoiling the quality of local rod fisheries and causing genetic pollution of wild stock (a matter about which the Atlantic Salmon Trust is extremely worried because the escaped fish interbreed with wild fish) and the adverse impact on public highways.
The Convention of Scottish Local Authorities has called for full planning control over all aspects of fish farming. That call is backed by Scottish Wildlife and Countryside Link which represents all the principal voluntary wildlife conservation bodies in Scotland and by the Atlantic Salmon Trust.
It is not enough for the Government to suggest that consultation procedures have been tightened up by the Crown Estate Commissioners in respect of seabed leases for coastal fish farms. The time has surely come for the full measure of town and country planning legislation to apply both above and below the low water mark and in respect of floating structures.
There is a further point that I should like to mention, of which I have given the noble and learned Lord the Lord Advocate notice. The Atlantic Salmon Trust was surprised to see the noble and learned Lord's statement in this House on 29th January (at col. 651 of Hansard). He said that he was clarifying the position in Scotland about freshwater fish farms and planning. As the trust understand it, that is not the situation because it was sent a consultative document on the 13th December (PGB/3/6). Appendix B, page 2, paragraph 10 seems to suggest that freshwater fish farms are covered in Scotland. That is an area about which there appears to be confusion. I hope that the noble and learned Lord the Lord Advocate will be able to clear up the matter.
On the wildlife aspect, floating mussel rafts can be located in areas where they are a positive invitation to large numbers of eider duck, which is a protected species. That causes problems. Seeded oyster beds on

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or about dead low water and adjacent to sites of special scientific interest can also create ecological problems. I am told that there have been considerable problems about whether and by whom these activities are regulated. The harbour commissioners say that it has nothing to do with them. They say, "Have a word with the MAFF fishery people". MAFF and DAFS say that it is not a matter for their offices but the operation is authorised by the Sea Fisheries Committee and the Crown Estate Commissioners. The Sea Fisheries Committee says that it is ultra vires on nature conservation grounds to refuse authority for any new put-and-take clam enterprise and the Crown Estate Commissioners say that they have an overriding duty to maximise rental incomes from sea bed leases.
All that points to the overriding need to have proper planning control over the multifarious enterprises of fish farming. That is precisely what the two amendments tabled in my name and the name of the noble Baroness, Lady David, seek to do. I beg to move.
8.45 p.m.
Baroness David: My Lords, my name is on the amendment and I should like to support it wholeheartedly. The RSPB has been in favour of these amendments. The CPRE is also strongly in favour and the ACC, which gave a rather ambiguous briefing at Committee stage, has now decided that it became completely muddled about the whole issue and is totally in favour of planning controls over fish farms.
The noble Lord, Lord Moran, put the case extremely well and I agree with everything that he said. He mentioned the adverse impact on public highways. I certainly can tell the House of a personal experience that I had in Scotland. I was going along one of the single track roads in Argyll. There was an appalling smell and I could not imagine where it was coming from. We stopped, looked in the boot of the car to see whether there was some dead animal or fish there. Not at all. We went a little farther along the road and suddenly saw a quantity of dead salmon lying at the side of the road. We had been following a truck which was taking dead fish from one of the fish farms. The net that was supposed to encase them had not quite done so and some of the fish had slipped out. It was a real public health hazard.
I strongly believe that there should be planning laws which control the location of such farms. I understand now that in fact far too many of them have arrived on the scene and that they are quite a hazard. There is a danger of fish escaping and mixing with the wild salmon, so spoiling the pure breed or whatever it is called. I hope that this time the Minister will not give the rather unsatisfactory answer that we had last time and that he can tell us something rather more positive.
The Earl of Radnor: My Lords, I should like to take a completely opposite line to that taken by those who propose this amendment. I must confess my interest as, I hope, an environmentally friendly fish farmer. I came to your Lordships' House around 1970. Since then in various enactments fish have been designated
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as agricultural or farm animals and fish farms as farms —under a rating Bill in point of fact. Until now there has been a gradual and steady move towards fish farming being accepted as farming. Whatever the noble Lord, Lord Moran, says, suddenly to turn all that on its head would seem to be completely illogical.
There are many points that I should like to cover. I shall be as brief as I can. First, there is pollution. I must admit straightaway that I cannot speak too much about fish farming or salmon farms in Scotland. I can only tell the noble Baroness the story when I first started fish farming 22 years ago. On the whole fish die in large quantities when they are very small. One day I complained that there was a fraction of a bucketful of little fellows and my manager said, "Well, my Lord, if you kept 2½ million racehorses, surely you would expect to find a few dead ones every morning". That is a fact of life, which goes right through farming and looking after stock.
However, we undergo strict controls from the NRA. I am sorry that my noble friend Lord Crickhowell is not in his place because I should have been interested to hear what he said about planning and whether in fact he was as keen as the noble Lord opposite said. The NRA imposes very stringent rules, both quantitative and qualitative, which cover incoming and outgoing water. So much so that in talking of inland farms I would say that it is improbable that there could be many more inland trout farms in England. Therefore perhaps noble Lords are beating against something that does not exist.
So far as concerns the salmon farms in Scotland, I should like to tell another tale. I was up at Artaunish three or four years ago and I visited my first and in fact only cage farm. I walked on to the place, said that I was a fish farmer, that I had never seen a salmon farm and asked if I could look round. I was very impressed. It seemed to be very well run. I had come from Committee D (or some such committee) and said, "This is not very popular down in the department; nor is forestry". The manager said, "That is most unfortunate because those are the only two things that there are to do here".
The point that I am trying to make is that there are other values as well as environmental ones. After all, people are part of the environment. In point of fact the fish farming enterprise in Scotland is considered by the Highlands and Islands Development Board as one of the jewels in its crown.
I revert to the inland farms and personalise the matter by speaking of my own farm—again, I am sorry that my noble friend Lord Crickhowell is not present. Like some people I like to boast that mine is the largest farm on one site in the whole of the British Isles; but I do not think it is true. I have been under a microscope for 22 years, especially recently. I have developed and learned and I believe that I have an extremely clean farm. Every so many weeks—every fortnight I think—I am tested in the way that has been described. I can tell noble Lords that about 50 per cent. of the time I send away the river cleaner than it came in. I am talking of suspended solids, which is the

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visual sight of dirtiness. I believe that on three occasions I sent it on with more oxygen, which is remarkable.
Now that we have all begun to be told to have air-lines, oxygenation plants and so on, digital count-outs of flow can be taken every second whenever the person comes round to look at the farm. I do not think that we want to go away with the idea that Nye are filthying up the rivers of England. My stretch of the Hampshire Avon is sometimes better than it is at its source.
It is a small but successful industry. There are about 700 inland trout farms in England and Scotland. To put those farms under the constraints suggested—I anticipate a small number would be involved—will kill any further development in this area. Although a small industry, one has to consider the gross domestic product. Every little counts, especially these days. Diversification of farming and country enterprises has been pushed very hard.
There is little more to say. I have made my points. I sincerely hope that the amendment will be resisted. The second speech that I made in your Lordships' Chamber was in a Wednesday debate. The debate about fish farming was led by Lady Emmet of Amberley. In those days fish farming was everyone's favourite subject; we were cheered almost to the echo. I made the point then that not only is the fish a small animal, which therefore requires a small packing station, and buildings which are relatively unobtrusive, but also they are virtually below ground level. In order to view my fish farm I indulge in expensive aerial photography. I take a number of parties around my fish farm. I show such photographs to those people because if one walks around one cannot view the fish farm. Why does one need planning for something that one cannot see? It seems a little ridiculous. I hope my noble friend will not agree to the amendment.
Lord Airedale: My Lords, I speak in favour of the Atlantis, salmon. It must be one of God's most athletic creatures. It swims hundreds of miles through the Atlantic from its native river to the waters surrounding Iceland and back again to its native river. If one puts that creature in a cage, violently disrupting its natural way of life, one will set in train unforeseen problems. I welcome every possible measure of control on this unnatural exercise. I support the amendment.
Lord Stanley of Alderley: My Lords, before my noble friend answers, as I said at Committee, I am not sure what the noble Lord, Lord Moran, intends to achieve I cannot see that his amendment will achieve anything other than what is already achieved by the regulations now in force.
I speak now to the noble Baroness, Lady David. The amendment would not resolve the problem of the dead fish which no doubt she saw on the road to Artaunish.
Lord Fraser of Carmyllie: My Lords, I doubt whether there is a fishing hotel in Scotland where the difficult problem of the genetic strain of the Atlantic salmon being damaged by possible interbreeding with salmon which have escaped from fish farms is not
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discussed lightly. I have no expertise. I cannot say to what extent that extraordinary genetic strain which allows salmon to move from Greenland waters to the rivers of Scotland will be altered. However, whatever may be the truth of the matter, it seems a little beyond the planning issues which confront us in the Bill.
Amendment No. 48A seeks in effect to establish full planning control over inland and marine fish farming in England and Wales. The operative wording is the same as Amendment No. 58A, which concerns fish farming in Scotland. In effect it raises four issues: permitted development rights; floating structures in inland waters, such as tanks and cages; the use of land for fish farming; and marine fish farming.
In Scotland, as I believe those who have already contributed to the debate will appreciate, there are no permitted development rights for fish farming. In England and Wales the Government have already announced that they will withdraw permitted development rights for fish farming in the national parks. I appreciate that the noble Lord feels that that decision does not go far enough. However, as I indicated when the matter was last discussed—and the noble Lord seems very familiar with the issue—the Agriculture Select Committee in another place, following its detailed study of fish farming last year, recommended greater planning control in the national parks but did not recommend that it should be extended elsewhere. It noted in its report that,
"Almost all controversial fish farming developments in England and Wales have taken place in national parks".
It concluded that,
"outside national parks, no further controls are required at this stage".
I can only repeat that the Government agree with that conclusion. Like the Select Committee, we are not aware of any evidence that would justify changes to the planning regime outside national parks. However, if we are wrong on that matter, and if the Government should at some time in the future come to a different conclusion and decide that there should be an extension of such controls, I emphasise to the noble Lord that permitted development rights could be withdrawn by means of secondary legislation. Thus it is not critical that this matter be addressed at this time when we are dealing with primary legislation.
Floating structures—which are widely used in fish farming activities—would normally be exempt from planning control both in England, Wales and Scotland, being simply attached to the land by a mooring rope or chain. Floating structures which involve an engineering operation to fix them to the land are subject to planning control. It was on that matter that the Atlantic Salmon Trust considered that what I stated previously was confusing and far from clarified the position. The position is clear although it may not be satisfactory enough for those concerned with the point.
We have given further consideration to the topic. We recognise that floating fish tanks and cages can have a considerable visual impact. For that reason we are minded to introduce an amendment to the Bill at a later stage to bring them within the definition of

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development where they are not already within it. As I indicated, in some circumstances they undoubtedly will be. We envisage introducing permitted development rights in England and Wales outside national parks at the same time. Thus floating fish tanks and cages in Scotland and the national parks would be subject to full planning control.
The third issue raised by Amendment No. 48A is the use of land for fish farming. Section 55 of the Town and Country Planning Act 1990 excludes "the use of land for the purposes of agriculture" from the definition of development. Hence the use of land for keeping fish intended for human consumption does not come within the scope of development. Withdrawing permitted development rights for fish farming in national parks, and bringing floating tanks and cages there within the definition of development, would for practical purposes achieve a similar result there to that which the amendment seeks in relation to the use of land.
Amendment No. 48A also concerns marine fish farming. Noble Lords and noble Baronesses who have contributed to the debate will appreciate that when we speak of marine fish farming we are almost entirely addressing a Scottish issue. The amendment appears to follow from one put forward by the noble Lord, Lord Ross, at Committee stage. As I explained then, the Government agreed with the Agriculture Select Committee in another place in promoting an evolutionary approach to marine fish farming. I explained the improvements made in the Crown estate commissioners consultation procedures. I appreciate that that improvement is considered to be as yet insufficient. Nevertheless there have been those improvements. As I also explained there has been an advisory committee set up to advise on contentious cases.
Marine fish farming in Scotland is not an uncontrolled industry. The Scottish Department of Agriculture and Fisheries has a statutory responsibility under the Diseases of Fish Acts of 1937 and 1983. For example, navigational consents must be sought from the Department of Transport. As a commissioner of Northern Lights I am aware that they are not always so well observed by fish farms. Nevertheless, controls are in place which ought to be observed. Vocational control is exercised by the Crown Estate Commissioners with the improvements in its procedures that I have outlined.
Further controls under the planning system would place a significant new burden on local authorities which do not have the relevant expertise. That would impose a further consent procedure on the developer. As I have emphasised, we would prefer an evolutionary approach. Against that background we do not consider that anything further is required. We shall be withdrawing permitted development rights for fish farming in national parks and have in mind action on floating structures.
I appreciate that this debate is important. As was indicated by my noble friend Lord Radnor, perhaps speaking from a lonely position, there are differing views on what must be introduced to achieve the right
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balance. However, I hope that, in view of my comments, noble Lords who moved the amendments will consider that they can be withdrawn.
9 p.m.
Lord Moran: My Lords, I shall first comment on the points raised by the noble Earl, Lord Radnor. He spoke as though we were proposing to shut down fish farming. That is far from the truth. He said that the industry might be killed should my amendments be accepted. That is far from what I had in mind. Fish farming is important in many parts of the country, notably in Scotland. It plays an important part in the economy and provides employment in areas where there is little other work to be found. In tabling the amendments we suggest only that fish farming enterprises should be subjected to the scrutiny of the planning procedure. After all, there is in that procedure a presumption in favour of developments. If the amendments were accepted there would be no danger of killing off the industry.
The noble Lord, Lord Stanley, asked what the amendments sought to do. Earlier I tried to explain their purpose. It is an effort to achieve a tidy and comprehensive scheme for putting all forms of fish farming under the scrutiny of the planning mechanism. The noble Lord suggested that existing regulation was satisfactory but I gave examples of the confusion that is encountered by those concerned. I suggested that the regulation is in a muddle and that it is desirable that it should be tidied up.
I am grateful to the Minister for his comments. I regret that he is unable to accept what I believed to be a tidy and clean-cut solution to the problem. However, I am encouraged by his remarks that some of the problems might be addressed by secondary legislation and that others might be addressed by an amendment to be brought forward by the Government.
As regards the genetic point that the Minister made about wild salmon, I must point out that scientists have discovered that there is a different genetic strain in almost every river. In some cases there are two or three genetic strains in the same river but running up different tributaries. The problem that has interested many of us who are interested in Atlantic salmon has been the escape of farmed fish which interbreed with wild salmon, as has been shown by experiments and observations. That may cause a corruption of the genetic purity of those strains which have existed for millions of years and it may land us with irreversible problems.
I am grateful to the Minister for the care with which he considered the two amendments. In the light of his remarks it is desirable that we should withdraw them and I beg leave to do so.
Amendment, by leave, withdrawn.
Clause 36 [Rights of entry]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 49 to 54:
Page 46, line 33, at end insert ("or any other land").
Page 46, line 36, at end insert ("in relation to the land or any other land").

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Page 46, line 38, at end insert ("in relation to the land or any other land").
Page 46, line 41, at end insert ("in relation to the land or any other land").
Page 46, line 42, leave out ("the land then").
Page 46, line 47, leave out ("in respect of the land") and insert ("in relation to the land or any other land, if there are reasonable grounds for entering for that purpose.").
The noble Baroness said: My Lords, these amendments were spoken to with Amendment No. 56. I beg to move.
On Question, amendments agreed to.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 55:
Page 47, line 8, leave out ("justice of the peace") and insert ("Sheriff").
The noble Baroness said: My Lords, the noble Lord, Lord Carmichael, apologises to the House for his absence. On his behalf I wish to move Amendment No. 55 and speak to Amendments Nos. 56, 118, 119, 157 and 158. Their meaning is self-evident and their significance is obvious. I understand that the Government are minded to accept them and I hope that that will be sufficient to persuade your Lordships to accept them. I beg to move.
Lord Fraser of Carmyllie: My Lords, I am grateful to the noble Baroness for moving the amendments in the absence of the noble Lord, Lord Carmichael. They are intended to provide an additional safeguard for those in respect of whose land a warrant granting a right of entry is sought. We have given careful consideration to the matter, which has been discussed with the Law Society of Scotland. We have concluded that there is merit in the argument advanced in the amendments. While I do not accept them, I undertake to bring forward government amendments on Third Reading so that warrants may be obtainable in Scotland only from the sheriff and not from justices. I hope that, with that undertaking, the noble Baroness will withdraw the amendment.
Baroness Hollis of Heigham: My Lords, I am happy to do that.
Amendment, by leave, withdrawn.
[Amendment No. 56 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 57 and 58:
Page 47, line 47, leave out ("person") and insert ("authority").
Page 47, line 47, at end insert ("or, as the case may be, the Secretary of State").
On Question, amendments agreed to.
[Amendments Nos. 58A and 59 not moved.]
Clause 12 [Planning obligations]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 60:
Page 19, line 17, leave out ("or otherwise") and insert ("with the authority").
The noble Baroness said: My Lords, this amendment refers to the vexed question of planning gain—the old Section 52 or the new Section 106. As was made clear in Committee, on this side of the House we have very strong objections to this aspect of
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the clause for two broad sweeps of reasons. First, by introducing unilateral planning obligations in place of the old negotiating agreements, this clause will reduce local authorities' negotiating strength. On the one hand, developers can offer too little community gain to offset the disadvantages of, for example, noise or traffic congestion. Equally, developers can offer too much in the hope of speedily buying a planning consent. After all, planning gain is sometimes pressed on local authorities and is not always extracted by them.
The second objection is that local authorities must enforce planning undertakings to which they are not party, which they may not want and which their community may not need. For example, developers may offer open space which may not be necessary if the area is already well endowed with open space and which in any event would generate additional maintenance costs for local authorities. I do not believe that it is acceptable to say that that could be required by the Secretary of State as a lump sum deposit for future maintenance needs. Alternatively, a developer may offer additional car parking which the local authority may not want because of the traffic implications. It would prefer perhaps a subway to link a retail development through to a high street as a more suitable planning gain for the community.
At present the new Section 106s are about negotiation and trade. I suggest that local authorities —certainly not developers or the Secretary of State —are in a position to judge what is in the best interests of the local community and what it can afford. All local authority associations, including the Conservative-led Association of County Councils and the Association of District Councils, are opposed to this clause, as are the National Housing and Town Planning Council and all the voluntary organisations of which I am aware.
Although I suspect that the Minister is too courteous to do so, she may say, "Well, they would say that, wouldn't they?" However, if local authorities can be trusted with development plans without recourse to the Secretary of State and if the Minister—and I quote an earlier comment from her—wishes them to possess more stringent enforcement powers on the one hand and to exercise greater discretion on planning on the other, why should it be assumed that those same local authorities are not appropriate guardians of the public interest as regards planning agreements?
On this side, we insist that the clause tilts the balance too far in favour of the developer's interest. We hope that our amendment rectifies that imbalance. I ask noble Lords to remember that this is not about a private battle between a developer on the one hand and a local authority on the other but about a developer on the one hand—a private interest—and a local authority as trustee for its community's well being on the other.
Of course developers favour unilateral planning obligations. Perhaps I may say, "They would, wouldn't they?" However, their arguments are worth looking at more closely because in Committee the major argument of the noble Lord, Lord Sainsbury, in

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favour of unilateral planning obligations was that he thought that they may overcome delay in the planning process. I believe that this was his sole argument adduced in support of the Minister's position.
The noble Lord, Lord Sainsbury, rightly complained that only between 55 per cent. and 65 per cent. of applications are dealt with by local authorities in less than eight weeks. He complained, again rightly, of the 30 weeks plus which it takes on average for the DoE to turn round an appeal. However, I emphasise to your Lordships that those delays, regrettable though they are, are not occasioned by the failure to reach agreement under Section 106. For example, if one looks at the percentage of permissions granted in local authorities, the highest percentage is usually for offices, factories and commercial developments and the lowest, which therefore generates appeals, is for residential development, usually, though not always, because the developer is proposing housing which is too intensive for the site.
Many of the applications on which local authorities fail to determine within eight weeks are those offering planning gain. Certainly the planning gain applications tend to be those that take longer than eight weeks precisely because they are the large, complex and substantial developments which generate the planning gain and which by definition require elaborate consultation with a whole range of interested parties. That cannot properly and faithfully be carried through in the eight-week period. Your Lordships will recall that that was an issue raised in Committee when we discussed twin tracking. Delays are occurring within local authorities, primarily due to the growing pressure on their workload caused by appeals at a time when they are constrained by financial resources and cannot appoint more staff. However, I remind the House that the real delays in the planning process occur within the Department of the Environment.
In my own authority in Norwich, I was checking the figures. Last year the Department of the Environment took 23 weeks to turn around all appeals, written as well as oral. This year that period has slipped to 28 weeks. That is a far greater deterioration in the service than anything the local authority is offering to developers within our community. The national average is higher still. It is 30 weeks plus, though I understand that perhaps 20 weeks of that may be due to difficulty in finding inquiry dates.
If the Secretary of State is given a further function —that is, the determination of unilateral obligations —the workload, and therefore the delays at the DoE end, will mount. It is at the DoE end that the largest bottlenecks are already being experienced. The number of appeals is rising by 30 per cent. a year. It will rise faster still with the inducement offered to developers to side-step negotiated agreements and go for a "take it or leave it" unilateral agreement. Is that what the Minister wants?
I emphasise that provisions such as Section 52 or the new Section 106 are not the source of delays, and
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therefore that that argument is not valid. There is little evidence of abuse by recalcitrant local authorities failing to meet a developer's reasonable bargaining position. In those rare circumstances where there may be a recalcitrant local authority, the existing formulation available to the Secretary of State that he is "minded to allow" is the effective way forward, and we should build on that. We would willingly, with the local authority associations, discuss that with the Minister if she were so minded.
At Committee stage the Minister said that the clause,
"was not a developer's charter but rather a mechanism to enable a log jam to be broken".
I contest that. It is a developer's charter. It is not the cause of the local authority log jam. It will add to the DoE log jam, which is where the delays in the appeal process and the delays to developers already occur. We need an escalating process. We do not need a "take it or leave it" agreement, but a way in which, at a reasonable point in time, should planning negotiations have broken down, the unilateral agreement may come in as a last resort. It should not be a parallel alternative for developers to use and abuse the planning system.
I have been referring to Amendment No. 60. Perhaps the House will allow me to speak briefly to Amendment No. 65. It suggests that if the Government are not minded to accept our amendment —and I hope that they will reconsider their views on that—given unilateral planning obligations and therefore that local authorities are unable properly to protect the public interest (which is what Clause 12 signals), then it is important to increase the rights of other interested parties who may and should be stakeholders in the decision.
Amendment No. 65 proposes a register of planning obligations and ensures that those planning obligations run with the land. That amendment at least may soften some of the worst effects of Clause 12 as it stands unamended. I beg to move.
9.15 p.m.
Lord Ross of Newport: My Lords, the noble Baroness, Lady Hollis, has made a very good case against unilateral obligations. However, she has not finally convinced me. I realise that a vast body of opinion —the local authorities, the AMA, the ADC, the Countryside Commission and CPRE, among others—do not like the idea that in certain—I believe limited—circumstances, the Secretary of State can overrule the local planning authority.
The problem is that I have been a practitioner. I was a chartered surveyor and in 1966 was involved in the Isle of Wight with a substantial property company attempting to bring some sense into a redevelopment in the centre of Newport. The opposition from the local shopkeepers at the time was staggering. Amazing things were said and the whole project fell apart. Twenty-five years later the people of Newport are asking why it was not proceeded with that at the time; it would have solved many of our traffic problems.
More recently, when I left the other place, I returned to the island at the advanced age of over 60

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and set up a commercial department because I was so anxious to attract investment into the island from substantial developers. There were always the kind of cheapjack people who would buy a small piece of land, try to secure planning consent, then sell it off, but they are no good to anybody. There was an opportunity at that time to bring in one or two of the much larger property companies which were interested in doing something about updating the leisure facilities and some of the shopping facilities and amenities of that sort. It is impossible to describe the ridiculous opposition that was aroused. I have to say that it came from a Tory authority. It did not want the company to go into Newport; it wanted it to go into Ryde.
There is no question that the public desperately wanted a competitor supermarket. The debate revolved around the old cattle market site. Fortunately, the company, which was a subsidiary of P&O, stuck to its guns. The result has been that the football club now has a new ground, a new stand, a practice ground and £150,000 in the bank. The local church has a new church hall, and there is a Safeway supermarket with a petrol station, which has had a great effect on the price of petrol in that part of the island. Everybody thinks it is marvellous. However, that scheme did not go through because the local authority wanted it but because in the end the authority was forced to let it through. In the end it sacked the chief executive, who had done all the work, and sacked his successor too.
At one time that property company was going to pull out. I think there would have been a fallback situation if the company could have gone to the Minister and said "We can show"—and we fought an election on this particular issue, and we won. I am not trying to be party political. I have to say that the local authority, which was run by some of my own people, was not very bright or supportive either. I could tell many stories, but perhaps I should not. I have a great regard for Tesco's and Mr. McLauren, who helped me enormously in a battle I had in trying to bring down petrol prices by 20p a gallon. I guaranteed to him that it would go through the local authority, which was Liberal controlled. It went through by one vote. I was on tenterhooks over that.
There are unfortunate cases. I entirely agree that this is a last-ditch fallback position, and matters should not get to that state. The Minister is nodding her head. I totally support Amendment No. 65, and I have certain amendments coming up which are on the same lines. However, I have seen perfectly good property companies turned away. We could have had a Marks and Spencer in the Isle of Wight. They were coming, but they are not there now and they will not come, all because of stupidity. Therefore, a fallback is needed.
I am a great supporter of local government. I believe that we have to reconstruct local government. There will be a debate on that next week. If we can get local planning back to what I believe it should be—I have raised this on a number of occasions in this House—I am totally with the noble Baroness. I want to see Birmingham, Southampton, Portsmouth, important cities, taking their own decisions. I do not
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want them to have to ask the Secretary of State or central government to make up their minds for them. I want to see a complete rejuvenation of local government. This Government is responsible for the appalling state that local government is now in. Nobody in his right mind who is any good wants to serve on a local authority these days because local government has no power to do anything and it cannot spend any money. New councillors join with the best ideas and go away disillusioned after four years. I think the noble Lord, Lord Dean, might half agree with me about that. You get these Poujadist types who dictate to the planning officer what he shall say or do. Some of those officers have had a very rough time over the past four years.
I am sorry to delay the House, but I see this provision, which I have been attacked for supporting, as a necessary fallback situation. However, I want it to be clearly explained that it is purely a fallback. It must be clearly demonstrated that there is public support for what the development company has in mind and that it is really as a result of bloody-mindedness on the part of the local authority that it is not going ahead.
Local authorities cannot force development companies to go where they do not want to go. They will not go where there is no return for them. Certainly, in the constituency which I represented it was extremely difficult to get investment and, when it came from the right source, it was very important that it should be used in the right place. It is tragic, because a large number of ridiculous schemes were promoted three or four years ago, all of which have gone up the spout and the firms have gone bust. We have only rarely got the kind of development company with backing behind it which is so desperately needed. I am sure the Minister will appreciate that if such cases fall to him to decide. I believe that the measure is right and I support it, but I cannot support Amendment No. 60.
Viscount Colville of Culross: My Lords, I cannot follow the Isle of Wight saga. I have to be very careful not to rehearse matters in your Lordships' House which I have dealt with professionally. Nevertheless, there is a generality here that I can discuss. Had this amendment been moved not by the noble Baroness from Norwich —a city which is wholly blameless in this matter—but by her noble friend front the Greater London Council, she would know that since 1974 there have been powers to enter into unilateral declarations under Section 16 of the Greater London Council (General Powers) Act of that year.
My views about this amendment are very mixed. I have read the discussion paper and the debate in Committee in this House. I see that there can be situations where planning gain is put forward and rehearsed unilaterally, if necessary at appeal, so that the developer promises things which otherwise would not be obtainable. The difficulty is that one has to go back to the roots of this piece of legislation. I shall not go on for very long. Your Lordships will not remember that the whole matter started in Leicester Square with the enforceability of negative covenants which ran with the land. That was then picked up by pre-war planning legislation and it has been with us

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ever since. It was contained in Section 37 of the 1947 Act: it then became Section 52 when the legislation was consolidated. Then, in addition to the negative covenants which ran with the land—namely, "thou shalt not do this or that"—there were added provisions which enabled people to enter into positive covenants to the effect that "thou shalt do this or that; thou shalt pay money; thou shalt provide parks and open spaces" and this, that and the other.
That has been built on over the years. I ask my noble friend Lady Blatch whether the Government have considered the question of enforceability. It is done through the courts. It is comparatively easy to go to court to enforce a negative covenant because you obtain an injunction to say that whoever it is shall not do whatever it is they promise not to do. However, when it comes to positive covenants to pay money to provide facilities, then you have to go to the court and get it to provide a mandatory injunction to pay money or to do other positive acts.
That is not very easy. The courts do not take to this procedure very kindly. It is a discretionary remedy in any case. It is extremely difficult to enforce the injunction if the party concerned does not comply with the order of the court. My only solution is that we shall have to have Section 106 amended as it is in Clause 12 of the Bill. The Government should look again at the question of enforceability by the local planning authorities.
At Committee stage I noticed particularly that there was a rejection of any suggestion that there should be recourse to the court without putting down money in advance to meet the possibility of having to pay damages if the injunction were obtained. That was rejected by the Government. This provision is very unattractive for local authorities. Many of them have not got a great deal of money with which to enforce these measures. I think that this provision should go ahead. The corollary is that the Government should look at the way in which the matter is picked up after the developer has entered unilaterally into these agreements and then has failed to pursue them. There is no way in which this can be done tonight, and it is no use my noble friend going off and seeking the pigeon post. The fact of the matter is that that is where the whole thing will break down.
I do not think that there has been all that much experience in the Greater London Council area because I have looked into this. But if this is to go ahead as a major venture, I believe that the Government ought to look again at those fragile foundations in the Chancery Division upon which the whole thing is based. That said, I am afraid that I would oppose the noble Baroness, because I think that this is now irrevocable and we need to go somewhere else in order to make sure that it works better.
9.30 p.m.
Lord Coleraine: My Lords, I do not propose to follow my noble friend Lord Colville of Culross in his dissertation on the enforceability of covenants, but, as your Lordships will know, I accept that the proposals
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in this clause are a worthwhile effort to resolve a difficulty that faces developers and planners together. I do not think that it was right for the noble Baroness to spend so much time calling the Department of the Environment pot black as opposed to the planning authorities in terms of delay. I do not think that that is the real point at issue here.
It is not sufficient for the Minister to be put in a position where he says that he is minded to allow, and then it goes back to the planning authority and the same thing happens again. That is a position that arises from time to time, and it is right for the Government to try to get out of it. The clause is a worthwhile attempt to do so, although, as your Lordships will know, I am certainly not entirely happy with the way it is drafted, and the way it seems to concentrate on unilateral undertakings rather than on planning agreements. It is unduly restrictive. However, I think it is a clause worth pursuing, and I hope that if the noble Baroness pursues her amendment the House will reject it.
I have to confess that I was not listening very carefully to what the noble Baroness said about Amendment No. 65. It is one in which I am interested and for which I feel sympathy, and I hope that my noble friend will have a good answer to what was said. I am not absolutely certain whether the noble Baroness, Lady Hollis, was, in her very short speech, addressing that amendment or another one. If she was, I apologise to her.
Baroness Blatch: My Lords, Amendment No. 60, in the name of the noble Lord, Lord McIntosh, but spoken to by the noble Baroness, is effectively a wrecking amendment, for it would remove from Clause 12 one of the main reforms the Government are seeking to introduce—enabling a planning obligation to be created by an undertaking as well as by agreement with the local planning authority. The Government believe that this is a well-considered reform. It was the subject of full public consultation in 1989 and was supported by the majority of 186 respondents who commented on it, including the Association of County Councils, the RIBA, the RICS, the Local Government and Planning Bar Association, the CBI and the Housebuilders Federation.
The Government view is that creating an obligation by undertaking is an alternative to doing so by agreement, not a replacement. We made this plain in our 1989 consultation paper and will reiterate the point in policy guidance. The ability to enter a planning obligation by means of an undertaking is an additional arrow in the quiver of a developer faced with a recalcitrant local authority which might either be holding out for excessive and unreasonable gain or be so unwilling to contemplate granting permission that it will not discuss how to overcome its planning objections. Plainly, developers and authorities are likely to prefer to negotiate a reasonable agreement if they can, rather than going to the expense and delay of an appeal. But, where only an appeal can break the deadlock, an undertaking may help resolve matters.
At present, if there is a planning objection to a development proposal which only a planning

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agreement can remedy, but the local authority is unwilling to reach such an agreement, the developer is stuck. He may go to appeal and the inspector may decide that he is minded to grant permission, subject to completion of an agreement. But if the local authority remains obdurate the developer is no further forward. My noble friend Lord Coleraine made the point that going back to the authority for a second time, and perhaps a third time, simply does not move matters forward.
Enabling the developer to create an obligation by means of an undertaking clears the way through that impasse. Such an undertaking, where relevant to the proposed development, will be a material consideration at appeal and the inspector will therefore take account of it in determining the appeal. I see that my noble friend wishes to intervene. I am happy for him to do so.
Viscount Colville of Culross: My Lords, is it also a material consideration if the terms of the proposed undertaking are in part acceptable to the local planning authority but in some other respects are wholly unacceptable so that there could well be not a planning gain but in total a planning loss? Will that situation also be taken into consideration?
Baroness Blatch: My Lords, I do not see any obligation, even a unilateral one, being approved if it would result in a net loss to a local authority. Where there is partial agreement there will be a blockage. If agreement cannot be reached in whole or in part, a time comes when the applicant simply has to obtain a determination. Under the present system there is no mechanism for such a determination. That is the issue with which this part of the clause deals. Undertakings will, we expect, be couched in terms promising to do or not to do certain things once planning permission is granted. Once the grant of permission is issued, the developer will be bound to carry out the terms of his undertaking. I shall return later to that point as it was raised by my noble friend Lord Colville. But no other party, including the planning authority, can have obligations imposed on it except by agreement.
I now turn to Amendment No. 65, which is also tabled in the name of the noble Lord, Lord McIntosh. The amendment muddies the waters because it would create two types of planning obligation. The first would be entered into by agreement with the local planning authority. The second type would be entered into by "undertaking" and would include as parties anyone whose interests in the land are or might be affected by the obligation.
I believe that to have two separate regimes for planning obligations is in principle undesirable and that the additional requirement of obligations entered into by "undertaking" is unnecessary and confusing. Under new Section 106 a person can only bind his own interest in land and those of his successors in title; for example, a tenant cannot bind his landlord. There is no difference on this point between the 1990 Act and Clause 12. If the intention of the amendment is that a further person's interest is to be bound, then that
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person will already have to be a party to the planning obligation. Again, there is no difference between the new provisions and the 1990 Act.
I shall deal now with the specific points which were raised during the course of the debate. The noble Baroness, Lady Hollis, laid considerable blame on the Department of the Environment for delays in planning appeals. I should point out that all the delay is not necessarily due to the DoE. Better inquiry procedures have helped to cut delays by fixing inquiries to meet the wishes of the applicant and the planning authority. Very often the delay has much to do with ensuring that the wishes of the applicant or planning authority are met. There has been a huge increase in the number of appeals and there is improved inspector productivity. Moreover, now that the number of appeals is falling, the backlog is being reduced. Unilateral undertakings are not about reducing time on appeal, which was another point raised during the course of the debate; they are about obtaining the right planning answer when an authority is unwilling for whatever reason to enter into an agreement.
My noble friend Lord Colville raised the point about enforceability. I know that he feels strongly on the matter. There is specific provision made in the new Section 106(5) to allow the authority to enter the land to undertake the works if the developer fails to meet his obligations; and, indeed, the authority may also recover its costs in so doing.
In introducing the amendment, the noble Baroness mentioned a number of factors which she felt were important and which needed to be taken into account. I should point out that the relevance of all the factors she mentioned would have to be taken into account by the Secretary of State. They would form part of the appeal. No doubt the local authority would want the Secretary of State to know to what extent they had tried to reach agreement. It would be for the applicant to prove that he had gone as far as he could towards satisfying the local authority.
The point about the Secretary of State being merely "minded to allow" is not good enough. The noble Lord, Lord Ross, gave ample evidence to show that there comes a point in a minority of applications where the clause will be important. The issues are complicated. I have endeavoured to clarify them as best I can. I hope that the noble Baroness will be prepared to withdraw the amendment.
Baroness Hollis of Heigham: My Lords, I thank the Minister for her reply, but I am extremely unhappy about it. This is the clause about which the Opposition have most reservations. Perhaps I may pick up some of the points made by noble Lords in their helpful contributions. The noble Lord, Lord Coleraine, chastised me for—I believe his phrase was "calling the pot black"—criticising the DOE for delays. As your Lordships will appreciate, I focused on that argument because in Committee the noble Lord, Lord Sainsbury, used the argument about delay as the primary reason for favouring unilateral planning agreements. It was almost the sole argument advanced

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in Committee. Associated with it were some examples of the costs the delay caused the private sector, in particular. They were strong arguments.
In my opening remarks on the amendment, I was trying to establish that that was a false correlation because delays would not be reduced were unilateral planning obligations to be accepted by your Lordships. On the contrary, by imposing additional work upon the Secretary of State the situation might be worsened. That may not be the case. I hope for everyone's sake that it is not, but it is a reasonable fear.
Secondly, the noble Viscount, Lord Colville, helpfully pressed the Government as to how they would ensure that government-imposed unilateral planning obligations would stick. That is a point that we shall want to pursue with the local authority associations before Third Reading. It was useful to have the Minister's response to that comment.
The Minister said that the unilateral planning obligations were not so much meant to overcome delay as to offer the right planning answer when the local authority was unwilling to enter into an agreement. That is the very issue between us. The whole argument from this side of the House is that it is the local authority which has drawn up the development plan, which is being entrusted to enforce planning notices and use its discretion, which through its elected members is accountable for its planning decisions to its constituency, which has detailed knowledge of the local community and which knows what is in the best local interest. Surely therefore it is the local authority that can best interpret what is the "right planning answer". To say that it opposes what the developer is offering does not mean to say that it is wrong and the developer is right. The local authority may well be right—not always—to be recalcitrant when the developer seeks to offer too much or too little by way of planning gain. If the responsibility moves from the local authority to the Secretary of State, we move away from planning by policy to planning by appeal. That is not healthy.
The question boils down to a debate about what the unilateral planning agreements may turn out to be and whether they will replace Section 106 negotiated agreements, whether, as the Minister says, they will be an alternative or whether, as the noble Lord, Lord Ross, said, they will be a fall-back provision. There would probably be little between us if we could devise some arrangement by which they would be a fall back.
There may be rare exceptions when the provisions are necessary as a fall back. That is why a phrase such as "minded to allow" or "referral back" for a defined period of time to seek agreement might be one possibility. As the legislation stands, the agreements will not be. The Minister says that they are an alternative, virtually twintracking, but they are not. I fear they will be largely a replacement for the existing provisions under Section 106. As noble Lords will recall, the reason is that these developments will mostly not be concluded within the eight week period. Therefore, the developer will have the option of going to appeal on grounds of non-determination after the
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eight weeks, offering a take-it or leave-it unilateral planning obligation. It is precisely because of that tight timetable in which to deal with the application that problems will arise. It will encourage the developer to go for the replacement unilateral planning obligation rather than an alternative, a fallback or a negotiated obligation.
However, at this time of night I should not get far if I divided the House. If it were earlier, I would press the matter because I feel strongly that this is the single most misguided aspect of the Bill. At the end of the day it may cause the public good to be sold out, with the community interest, in the fallacious expectation that the developer and the Secretary of State between them will have a better sense of the community good and the public interest than the local authority elected to represent the public. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Lord Ross of Newport Lord Ross of Newport moved Amendment No. 61:
Page 19, line 25, at end insert:
("(d) containing such incidental and consequential provisions (including financial provisions) as appear to be necessary or expedient for the purposes of the planning application,").
The noble Lord said: My Lords, I apologise for the absence of my noble friend Lord Meston whose wife is indisposed. He asked me to move the amendments in his name on the Marshalled List. I beg to move Amendment No. 61 and at the same time to speak to Amendment No. 62.
The proposed new Section 106 omits the provision in the existing Section 106(2) in the 1990 Act which allows agreements to contain,
"such incidental and consequential provisions (including financial ones as appear … to be necessary or expedient for the purposes of the agreement".
This provision is commonly used to enable the developer at his expense to carry out work on land adjoining a development site which is owned by other people. An example would be to improve and plant trees on the verges of access roads which may belong to the local authority. I suggest under Amendment No. 61 that such a provision should be included in the proposed Section 106(1). That is what the amendment seeks to do.
Amendment No. 62 covers the situation where there is concern about the open-ended nature of the proposed Section 106 (1) (d) which will or could encourage some local authorities to seek payments which are not directly related to the development. The Minister may be aware of such possibilities. I therefore suggest that it would be worth while amending Section 106(1) (d) to emphasise that any payments should be for matters directly arising from the development, as I believe the existing guidance notes on Section 52 make clear. That is the reason for the second amendment. I beg to move.
Baroness Blatch: My Lords, Amendment No. 61 in the name of the noble Lord, Lord Meston, would restore in broad terms what is now Section 106(2) of the 1990 Act. That subsection is, I believe, much

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inferior to the new Section 106 which Clause 12 will insert. The new section is widely but clearly drawn. It specifically enables the developer to make financial contributions while allowing for obligations to be conditional. I do not think the amendment is needed. Indeed it might confuse the issue.
The noble Lord argued for his amendment that it would enable developers to carry out works on land outside their ownership or control, for example landscaping on council-owned land. I see no reason why developers should not offer to do this if they wish, but such activities cannot constitute either a planning agreement under the present law or a planning obligation under the new provisions, because the developer would lack the requisite interest in the land concerned. It would be quite inappropriate for a personal obligation such as this to run with the land which is the subject of the development proposal or to bind successors in title.
I have rather more sympathy for the noble Lord's Amendment No. 62. Many people would agree with the general principle that, where under Section 106 a developer pays a financial contribution to a local planning authority to enable works to be carried out, the size of sum payable should be determined by the cost of works undertaken by the authority as a direct consequence of the development. Indeed that reflects the longstanding policy of the Government that contributions by the developer, whether in cash or kind, should be reasonable in scale as well as in kind. But I do see snags with making this a general, statutory rule. The provisions as they stand are technical and complex but allow for some flexibility. The amendment would, I believe, lead to endless arguments about precisely which elements of the works were to be attributed to the development proposal and about how their exact cost was to be determined. Details such as this are best left to the parties.
I am also concerned that the meaning of this amendment is not clear. To require money to be spent within a predetermined period begs the question how that period shall be decided. The most logical approach would be for this to be set out in the obligation itself, and again this is best left for the parties involved. I believe that both these amendments are unnecessary, and I hope the noble Lord will feel able to withdraw them.
Lord Ross of Newport: My Lords, I thank the Minister for her detailed response to those amendments. I am sure that my noble friend will carefully read that response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 62 not moved.]
Lord Coleraine Lord Coleraine moved Amendment No. 63:
Page 19, line 45, after ("(7) (d)") insert ("and subject to any condition to the contrary in the planning obligation").
The noble Lord said: My Lords, in Committee I moved an amendment to make it clear that the parties to a planning obligation may agree between them that any burden on the developer as original covenantor
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should be extinguished once he disposes of his interest in the land. In reply my noble friend the Minister said that the clause as drafted made the amendment unnecessary because subsection (2) of new Section 106 already allows obligations to be entered into with conditions.
Since that time I have taken further advice. I return to this matter because I am not entirely happy with the drafting of the clause, or with the reply given by my noble friend. It is true that new Section 106(2) (a) will provide that,
A planning obligation may be unconditional or subject to conditions".
Were it not for the following subsection (3), I would accept that the planning obligation might contain a condition that the obligation should cease when the original covenantor parts with his interest in the land. However, I am not sure that I would even go so far as that. New Section 106(3) provides that,
"A planning obligation is enforceable by the authority identified in accordance with subsection (7) (d) against the person entering into the obligation".
There appears to be a distinct conflict between the words of subsection (3) and those of subsection (2) (a). I prefer subsection (3) which provides that the planning obligation is enforceable against the original covenantor. If it were only to be enforced against the covenantor while he owns the land, that provision should appear in subsection (3). My amendment seeks to remedy that. I shall be interested to hear my noble friend's remarks as she is aware of the continuing uncertainty that exists in this regard on the part of the Law Society and myself. I beg to move.
Baroness Blatch: My Lords, Amendment No. 63, in the name of my noble friend Lord Coleraine would enable a planning obligation to provide that it should not be enforceable by the local planning authority, either against the original covenantor or any successor to him.
As I said in Committee, new Section 106, as we have drafted it, would allow a condition to be inserted in the obligation which would extinguish any burdens on the developer as original covenantor once he disposed of his interest in the land. So I see no problem with that. But this amendment goes a good deal further, for it would allow obligations to be created that the local planning authority could not enforce against anyone. We do not consider this desirable; the whole raison d'être of a planning obligation is that it is enforceable. In particular, I do not think it would be right to allow obligations to be created by unilateral undertaking that the authority could not enforce.
I hope that my noble friend will find that argument persuasive and will withdraw his amendment.
Lord Coleraine: My Lords, I shall withdraw the amendment but I do not find the argument persuasive. The suggestion that a developer would give a unilateral undertaking that could not be enforced by anyone and that the Secretary of State would grant planning permission on the basis of that undertaking is ludicrous. I do not believe that the planning authority would enter into an agreement that could not be enforced.

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I wonder whether my noble friend really understands what we are trying to achieve with this amendment. However, I shall consider what she said. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 64:
Page 20, line 18, at end insert:
("(6A) Any person who wilfully obstructs a person acting in the exercise of a power under subsection (5) (a) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.").
The noble Baroness said: My Lords, Amendment No. 64 strengthens the enforcement provisions for planning obligations in new Section 106(5) by creating an offence of wilful obstruction, punishable by a fine. The maximum of the scale is at present £400. That is consistent with the enforcement powers in Section 33 of the Local Government (Miscellaneous Provisions) Act 1982 on which new Section 106(5) and (6) is modelled. I hope that noble Lords will welcome this further buttressing of the enforcement provisions.
I should also like to speak to Amendments Nos. 66 to 69, 228, 246, 279 and 281. Amendment No. 66 is a technical drafting amendment designed to make it crystal clear that only a local planning authority may enforce a planning obligation.
Amendment No. 67 fulfils the commitment I made at Committee stage to consider amending the Bill to make specific provision for planning obligations to be modified or discharged with the consent of the parties. The provision in new Sections 106A and 106B was not intended to be exclusive but I am advised that it is far from clear that it is not. Accordingly, the amendment would allow the parties to vary a planning obligation by mutual agreement, for example to correct an error on the face of the instrument concerned or because of an unexpected turn of events that made some or all of its provisions no longer relevant.
Amendments Nos. 68 and 69 go together. They enlarge the scope of the regulations which the Secretary of State may make under new Section 106A(7) so that he may prescribe, for example, how and in what way a local planning authority's determination is to be notified to the applicant.
Amendment No. 228 is also connected with the modification and discharge provisions in Clause 12 of the Bill. This amendment reduces the scope of Section 33 of the Local Government (Miscellaneous Provisions) Act 1982. That provision has been used in the past in addition to or instead of Section 106 of the 1990 Act. The reason for this was that it was unclear whether Section 106 allowed for the creation of positive covenants which ran with the land and bound successors in title. The reforms we are making in Clause 12 should make it no longer necessary to use Section 33 in that way.
Our concern was that local planning authorities might continue to use Section 33 as an alternative to Section 106, which would enable them to bypass the modification and discharge provisions. That would
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undermine one of the main reforms which Clause 12 introduces and the amendment tackles that potential difficulty.
Amendment No. 246 is a technical amendment to paragraph 20 of Schedule 1 to the 1990 Act, updating it in the light of Clause 12 of the Bill.
Amendments Nos. 279 and 281 appear much more significant than they are. They are consequential amendments. Their length is attributable to the need to spell out separately the English and Welsh, Scottish and Northern Ireland provisions so as to avoid having different texts of the Income and Corporation Taxes Act 1988 in different parts of the country. That is also why the amendment appears in the body of the Bill and not in a schedule.
I commend to the House Amendments Nos. 64, 66 to 69, 228, 246, 279 and 281.
On Question, amendment agreed to.
[Amendment No. 65 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 66 to 69:
Page 20, line 27, after first ("the") insert ("local planning").
Page 20, line 40, at beginning insert:
("(1) A planning obligation may not be modified or discharged except—

(a) by agreement between the authority by whom the obligation is enforceable and the person or persons against whom the obligation is enforceable; or

(b) in accordance with this section and section 106B.

(1A) An agreement falling within subsection (1) (a) shall not be entered into except by an instrument executed as a deed.
(1B)").
Page 21, line 34, leave out ("and").
Page 21, line 37, at end insert ("and
(d) the notices to be given to applicants of determinations under subsection (4).").
On Question, amendments agreed to.
[Amendment No. 70 not moved.]
10 p.m.
Lord Ross of Newport Lord Ross of Newport moved Amendment No. 71:
Page 22, line 19, at end insert:
Period for representations.
106C. A local planning authority shall not enter into an obligation by agreement before the end of the period of 21 days beginning with the date that a proposed obligation was placed on the register kept under section 69; and shall take into account any representation relating to the planning obligation received in the 21 day period".").
The noble Lord said: My Lords, I shall be brief. This amendment deals with consultation on planning obligations. Its purpose is to require local authorities proposing to enter into an agreement by obligation to give consideration to any public comments made within 21 days of the details of the proposed obligation being placed on the register before entering into the agreement. This amendment is a slightly different version of the amendment that I moved at Committee stage.
Amendment No. 74 would require a local planning authority to place details of any planning application proposed to be associated with planning applications

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on the public register of planning applications. I hope very much that this rather simplified form will meet with a favourable response from the Government. I beg to move.
Viscount Colville of Culross: My Lords, I looked at this matter. We have been discussing the question of delays. These obligations are a matter of negotiation, but I am not sure at what stage the local planning authority is supposed to lay the text before the consultees. If this is a continuing process there will not be anything that it can put out to consultation until perhaps the last stage and, if there is an appeal, after it has been submitted to the Secretary of State.
I simply do not understand how this provision is supposed to work because I do not know the text upon which anybody is supposed to be consulted.
Baroness Blatch: My Lords, my noble friend Lord Colville makes an important point. However, the Government are entirely sympathetic to the noble Lord's objective. We all agree that the general public should be able to find out about obligations entered into when they are, as is usual, associated with the grant of planning permission. However, I am not convinced that these amendments are necessary or that they achieve their objective.
Planning obligations are local land charges. Every district or borough council is required by statute to keep a register of local land charges, to which any member of the general public has the right of access on the payment of the requisite fee. The register is available in every town hall and on it can be seen the entries, including planning obligations, for every
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parcel of land. This register is not the same as the land register—and must not be confused with it—which contains details of the title relating to land registered under the Law of Property Act 1925 and which I agree is less readily accessible to members of the public. I believe that Clause 12 as it stands makes satisfactory provision for the public to find out about planning obligations and that it is unnecessary also to include them on the planning register.
I also believe that the mechanism provided by these amendments would be ineffective. First, it covers only planning obligations entered into by agreement. Although we expect that the vast majority of obligations will be entered into in this way, the public should have the same rights of access to obligations created by undertaking—as indeed they will have under the clause as it stands. Secondly, the inclusion of obligations proposed to be entered into on the planning register is inappropriate. The planning register contains factual information about applications made and the way in which they are determined. It should not contain material about agreements that may never actually be entered into, as is clearly the intention of these amendments.
I hope that the noble Lord will withdraw this amendment.
Lord Ross of Newport: My Lords, this is not a debate about the land register. I am grateful for the Minister's acceptance of the fact that that is not a very satisfactory way for the public to find out what is going on. I shall study what she said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Renton Lord Renton moved Amendment No. 72:
After Clause 12, insert the following new clause:
"Right to appeal against planning decisions
. After section 78 of the principal Act there is inserted—
"Right to appeal against planning decisions.
78A.—(1) Where a local planning authority grant an application for planning permission for development under section 70 (determination of applications: general considerations) or section 316 (application of certain provisions to local authorities), as amended by section 17 of this Act, which would materially conflict with or prejudice the implementation of any of the policies or general proposals of the development plan any person who has made representations to the local planning authority and who has reason to believe that the development plan has been substantially disregarded may by notice appeal to the Secretary of State stating the grounds on which it is made.
(2) Any appeal under this section shall be made by notice served within such time and manner as may be prescribed by a development order under section 59 of the principal Act.
(3) The time prescribed for such a notice must not be more than 28 days from the date of notification of decision.
(4) Where the Secretary of State is of the opinion that the grounds of an appeal are clearly without substance he may serve a notice on the person summarily dismissing the appeal." ").
The noble Lord said: My Lords, this amendment seeks to insert a new clause after Clause 12. It would grant a right of appeal against planning decisions in very limited circumstances. On this occasion we merely say that there should be a right for third parties who have made representations to the planning authority—in other words, objectors—to appeal against a decision to grant planning permission for a development which materially conflicts with or prejudices the development plan where they believe that the plan has been substantially disregarded. Then the appeal would have to be made within 28 days of the date of the decision and would be subject to the Secretary of State's right summarily to dismiss it if he thinks that it is without substance.
At Committee stage we had a series of amendments granting rights of appeal in different circumstances. I moved one which dealt with the question of departure from the development plan. My noble and learned friend the Lord Advocate gave some good reasons for not giving a general right of appeal.
In col. 572 of the Official Report on 29th January, the Lord Advocate stated:
"From time to time there are changes of circumstances which were not envisaged when the plan was first drawn up; sometimes the plan is out of date"—
that is by the time the case is heard—
"and sometimes, although the proposed development conflicts with the plan, the harm to the plan's objectives is clearly outweighed by the benefits of the proposed development. In any of these circumstances it may be right for an authority to grant permission contrary to the plan's provisions".
However, he then added:
"The plan must not be disregarded of course, but taking the plan into account is not the same as a slavish following of it".
If noble Lords look carefully at the wording of the new clause they will see that it limits the right of appeal to those cases where there is a material conflict with the policies or general proposals of the development plan.
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Also the person making the representations and wishing to appeal must have reason to believe that the development plan has been substantially disregarded.
That is a different situation from the one which we considered at Committee stage. I remind noble Lords that in the third schedule, which is governed by Clause 22 which introduces it, the Government are putting forward much stronger provisions relating to structure plans and local development plans. If those provisions are to be effective, surely we should avoid the grant of planning permission where there is a material conflict.
At this late hour I do not wish to labour the matter. However, we feel that in order that the Government's provisions may be credible and effective, and for local people who feel strongly about the conflict that has arisen, there should be a right of appeal to the Secretary of State. I beg to move.
Lord Norrie: My Lords, I speak in support of the amendment. The Government have expressed anxiety that the amendment opens the floodgates to a wave of new appeals. I understand that concern. That is why the amendment is so tightly worded. A right of appeal would be available only to question developments which substantially conflict with the development plan. It would be available only to people who had commented on planning applications. It would be available only when they have reason to believe that the development plan has been substantially disregarded.
As a further check, the Secretary of State could dismiss frivolous appeals. He would have the power to award costs against those who pursued them. It would ensure a power to review bad decisions in favour of developments which conflict with publicly agreed plans. But it would not create unnecessary delays in the system. At present when developers have an automatic right of appeal only 4 per cent. of all applications go to appeal. Without the effective use of call-in powers to deal with major departure applications, a third party right of appeal is a vital element of a planning system which wants to command public respect. For that reason I support the amendment.
Baroness Hollis of Heigham: My Lords, we too support the amendment. We did not speak to it in Committee because we hoped that the then Amendment No. 147, moved by the noble Lords, Lord Norris and Lord Renton, would be acceptable to the Government. It would have given primary regard to the development plan. Development plans have been adopted after widespread public consultation, thereby embodying and mapping a community's forward look. We had hoped that, had the Government accepted the amendment in Committee, the probability of appeals based on grounds that the local authority was in breach of a development plan would ipso facto have been less likely. Local authorities would have had to given primary regard to it. Equally, had the amendment been accepted, so would the belief that local authorities were acting as community trustees.

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As a result of the Government refusing to accept that amendment, Members on this side of the House wish to be conjoined with Amendment No. 72. At present third parties have a right to appeal against the refusal of planning permission. However, they do not have a right to appeal against the granting of planning permission. The amendment is limited and tightly drafted. It will apply only to cases which significantly challenge the development plan. In 1986 the fifth report of the Environment Committee of the House of Commons repeated that the basic purpose of planning was not to resolve disputes between private proprietary rights of individuals, because that is a matter of common law and adversarial principles, but to resolve private rights and the wider community good, of which the local authority is trustee.
The presumption is that the wider public good is embodied in the development plan. Granting a planning permission significantly contrary to that development plan must at least raise questions about where the community good lies. It is a question that should be scrutinised on appeal. If the local authority will not do so, third parties must. For that reason we support the amendment.
Viscount Colville of Culross: My Lords, I hope that if the noble Baroness's party ever comes to power she will pursue this issue because it will be a bonanza for those who practise at the planning Bar and in the various professions. I do not understand what she is supporting. My noble friends Lord Renton and Lord Norrie will not thank me for my comments. Who will determine whether there has been a substantial disregard? It is true that in subsection (4) the Secretary of State can dismiss a matter that is plainly vexatious but the benefit of the doubt will have to be given. The practice will be that, instead of having the system of material departures which are determined by the local planning authority—and I had thought that the noble Baroness would support the local planning authority in being able to detect what is a material departure —or by judicial review if the authority is wrong, we shall have an open-ended system. Anyone will be able to say, "No, there has been a substantial disregard and we shall appeal to the Secretary of State unless it is vexatious". I welcome the provision and should like to see it in legislation. However, I do not believe that my noble friend will support it.
Lord Renton: My Lords, perhaps my noble friend Lord Colville would care to be reminded that in Committee the noble and learned Lord, Lord Roskill, said:
"judicial review is not an adequate remedy in these circumstances. It will only succeed where planning permission is unlawful or where it has been granted perversely".— [Official Report, 29/1/91; col. 568]
To that extent I am afraid that my noble friend must acknowledge that his argument cannot be sustained.
10.15 p.m.
Lord Fraser of Carmyllie: My Lords, as my noble friend Lord Colville appreciates, the Government are not persuaded that this type of right of appeal to a third party should be given.
However, my noble friend Lord Renton is quite
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right to highlight that the Government have stressed repeatedly the importance of development plans. As my noble friend rightly points out, Schedule 3 is very important in that regard. If the plan is up-to-date, clear and relevant, it will be a very important element in local authorities' development control decisions. However, the Government do not wish local planning authorities to follow plans blindly, without taking account of all the other material considerations.
Important though it is, the development plan can never be a set of immutable rules. I have said before but it bears repetition that there are often changes of circumstances not envisaged when the plan was prepared. The plan may be out of date. Most importantly, although a proposed development may conflict with the plan, the benefits of the proposed development may clearly outweigh the harm it would do to the plan's objectives. In each of these cases an authority may properly grant permission apparently contrary to the plan's provisions.
I was going to avoid the use of the word "bonanza". However, the new clause would increase the number of decisions taken by the Secretary of State rather than by elected local authorities. The Government believe that as many planning decisions as possible should be taken locally. The Secretary of State and his planning inspectors are at present responsible for the grant of just 4 per cent. of permissions. The Government do not wish to see their role extended in the way which is now proposed.
Perhaps I may deal briefly with the practical effect of this clause. About one in five planning applications is refused; fewer than one in three of those goes to appeal. Appeals are currently running at around 30,000 per year. The Planning Inspectorate has succeeded in greatly increasing the numbers of appeals decided in recent years in response to the even larger increase in the number of appeals submitted. However, if this amendment were approved there would be a completely new opportunity to appeal against the four applications in five which result in a grant of permission. If only one tenth of these went to appeal, the number of appeals being received by the Planning Inspectorate would double overnight. If this new clause became law the appeals system would be swamped or operate to the significant benefit of those practising in that legal field.
I do not propose to leave the matter there because I appreciate that my noble friends and the noble Baroness, in supporting this amendment, have looked at the matter and, in the way in which they have approached it, have sought to minimise its effect.
The original amendment tabled in Committee included some restrictions; the present amendment has strengthened these. The new right of appeal is confined to those applications where the development plan has been overturned. However, I fear that many potential third party appellants will do all they can to see some implied contradiction between the plan and a permission to which they object. I appreciate also that the Secretary of State is to be allowed summarily to dismiss an appeal which is "clearly without substance". However, it seems to me that in trying to

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arrive at such a judgment without hearing any of the parties or in any way considering the matter, the Secretary of State is likely to reach a decision that the appeal should at least be heard. If that happens, then we must expect a very significant increase in the number of appeals.
I appreciate that this is an issue which caused considerable strength of opinion. However, perhaps I may repeat that the Environment Select Committee in another place concluded in 1986 that it would not be appropriate for third parties to have the right of appeal against the grant of planning permission. We agree with that conclusion, which follows from the need for local choice, certainty and efficiency in the planning system. Although there has been the further restriction of what has been proposed in comparison to that which we considered at Committee stage, I regret to say to my noble friend that I cannot accept the amendment.
Lord Renton: My Lords, perhaps I may first express my gratitude to the noble Baroness, Lady Hollis, and also to my noble friend Lord Norrie for their support. I express my gratitude also for the intervention by my noble friend Lord Colville of Culross—with whose remarks I greatly disagree. I shall deal with his arguments first. He asks who will decide these matters. Obviously they will be decided by the Secretary of State on the hearing of an appeal. Like any person hearing an appeal he must decide the main issues.
My noble friend says that the amendment would create a legislative bonanza. Surely he will accept that every time we grant a new right to the citizen it potentially gives work to our profession. However, that is not a good reason for refusing a right if that right should be given. It is part of the job of our profession to help people to assert their rights. If I may say so, I do not believe that because it would give work to the profession it is therefore something which should not be done. That would be a novel idea and totally out of keeping with the traditions of our profession.
Perhaps I may say with great respect—and we all have great respect for him—that the arguments put forward by my noble and learned friend the Lord Advocate would have been very forceful in regard to the amendment moved in Committee. But he went into the fear of detail. We have avoided detail. We particularly confined the right of appeal on this occasion to material conflict with policies or general proposals of the development plan. To say that that will lead to the department being swamped with appeals is not only statistically imaginary but statistically improbable. There will be generalities and, as has been rightly said, the local authorities will be anxious not to conflict with their development plans. Therefore the number of appeals will be very small, simply because great care will be taken. But in those cases where there has been a departure from and material conflict with the general proposals of the development plan, the matter should not be allowed to rest. There should be a right of appeal.
I find the answer given disappointing. However, at
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this late hour I shall not ask the House to divide. The Government should seriously consider the matter further. If the answer we have been given was given on departmental advice, then the Ministers should challenge that advice. That is what they are there for. We may return to the matter. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 73 and 74 not moved.]
Clause 13 [Notice etc. of applications for planning permission]:
Lord Norrie Lord Norrie moved Amendment No. 75:
Page 23, line 23, at end insert:
("(1A) A development order shall make provision requiring a local planning authority to serve on anyone with a notifiable interest in neighbouring land a copy of any application for planning permission and a notice stating where and when they make representations.").
The noble Lord said: My Lords, Amendment No. 75 is identical to an amendment tabled at Committee stage. At that time I was disappointed by the Government's reply. People living on or having an interest in land affected by a planning application next door should be made aware of that application. That is a basic requirement of the planning system.
Provisions already exist in Scotland for developers to notify neighbours. Perhaps my noble friend can tell me why Scotland is different from England and Wales. It cannot be because of population density. Strathclyde is as densely populated as the South East; and mid-Wales is as sparsely populated as much of the Highlands. If neighbourhood notification is good enough for the Scots, why is it not good enough for us? Perhaps the noble and learned Lord, Lord Fraser, would like to answer that.
I cannot accept that the problem is one of definition. The terms "interested parties" and "neighbouring land" are already defined in Scottish legislation; and it cannot be beyond the ingenuity of our parliamentary draftsmen to do the same for the rest of us.
Problems with neighbourhood notification underlie much of the public's dissatisfaction with the planning system. The local ombudsmen who receive the brunt of complaints support the aims of the amendment. I understand that about 75 per cent. of local authorities already undertake some notification of planning applications on a voluntary basis, and I am greatly encouraged by that. But what are the Government going to do about the other 25 per cent.? A basic standard of publicity should be available to everybody. I hope that my noble friend will be able to indicate in her reply what the Government's expectations are of local authorities, and how she is going to deal with the 25 per cent. of authorities who do not see fit to involve their public in planning applications.
We need a set of minimum standards to be established, as proposed in the amendment. Otherwise, the public will miss an opportunity to comment on planning applications even as they are submitted. I beg to move.
Lord Glenarthur: My Lords, having listened to my noble friend Lord Norrie, I have to say to my noble friend on the Front Bench that I very much agree with everything the noble Lord has said. It is not for me to promote the fact that many aspects of Scottish legislation appear to be rather superior to some aspects of English legislation. It seems to be quite extraordinary to disallow comments from those who might have an interest and live on neighbouring land. Living as I do in Scotland, I can vouch for the fact that to be able to comment is a huge advantage.
It is not clear from what has been said why my noble and learned friend the Lord Advocate and my noble friend Lady Blatch should feel that what my noble friend has suggested is anything other than admirable common sense. I very much hope that they will accept the amendment.
Lord Renton: My Lords, I should like to support the amendment. In fact, my name is on it. What surprises me is that it is not already part of the law. If the planning system is to work fairly, it is a necessary protection for all neighbouring landowners when there is a proposed development that they should be given the opportunity of objecting. To make quite sure that they know about the application, they should be notified if they have a notifiable interest. It is common sense; it is fairness. It is very surprising that this is not already part of the law.
Lord Stodart of Leaston: My Lords, it is very depressing to find on many occasions Members of the Government if not admitting at least implying that sometimes the law of Scotland is superior to England. Perhaps I should not say this, but there are not very many items in which the Scots can or would wish to claim to be totally superior to the English—at least, not perhaps after Saturday at Twickenham—but on many occasions in my political life in both Houses I have seen situations in which it was generally admitted that the Scottish legal system was superior to the English one.
Yet because it was inconvenient it was desirable that the Scots should pull down the flag and fall in with the English system. It is a great pity that on this particular occasion, if, as has been said, we have an admirable system in Scotland, there should be resistance because the provision does not suit those South of the Border.
10.30 p.m.
Lord Howie of Troon: My Lords, I shall speak briefly merely to create a balance and to show that the Scots on this side of the House join with the Scots on the Government Benches in hoping that England shall have this benefit just as we have had.
Viscount Astor: My Lords, I must reiterate the view that I expressed at Committee stage. The amendment tabled by my noble friends Lord Renton and Lord Norrie would impose a considerable additional statutory burden on local planning authorities. The effect of their amendment would be rather different from the law in Scotland. The amendment would require the local authority to notify, whereas in
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Scotland the applicant is required to notify those with a notifiable interest in neighbouring land. That is an important difference.
It has been alleged that the absence of a statutory duty to notify neighbours in England and Wales causes numerous complaints to the local ombudsman. The figures I have do not bear that out. In 1989–90, 628,000 planning applications were submitted to local authorities in England. In the same period the local ombudsman received 758 complaints relating to neighbour notification and consultation. That is equivalent to about 0·126 per cent. of all applications. Only some 15 per cent. of those complaints were in fact investigated by the local ombudsman.
My department has issued guidance to local authorities about publicity for planning applications in Circular 22/88. That circular advises that it is not necessary for all planning applications to be advertised. It went on to say that the purpose of advertisement is to invite comment on the effect of proposed development on the interests and amenity of the general public, but the interests of individual property owners are taken into account only in so far as they are relevant to land use planning considerations.
The Government firmly believe that Circular 22/88 remains appropriate and relevant. Nevertheless I am ready and willing to consider what further guidance the department might issue, particularly in the light of the views which have been expressed by the noble Lords. I hope that they are listening to that. Such guidance might, for example, be stronger in urging the desirability of publicising development proposals to the minority of authorities which do not notify neighbours as a matter of course. However, the Government remain of the view that authorities should not be required to adopt a system against their will. I hope that my noble friends will agree to withdraw the amendment.
Lord Norrie: My Lords, I am very grateful to my noble friend on the Front Bench, who has made a very good point about the applicant who is required to serve the notice. As I understand it, my noble friend is going to look further into this matter. At this late hour I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 76:
Page 23, line 23, at end insert:
("(1A) Notice under subsection (1) of this section shall be given to any person (other than the applicant) who at the beginning of the period of twenty-one days ending with the date of the application was—

(a) the owner of; or

(b) the tenant of any agricultural holding any part of which was comprised in,

the land to which the application relates.
(1B) Where a notice of an application for planning permission has been given under subsection
(1A) above, the local planning authority—

(a) in determining the application, shall take into account any representations relating to it which are made to them before the end of such period as may be prescribed, by any person who satisfies them that he is an owner

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of any land to which the agricultural holding any part of which is comprised in that land; and

(b) shall give notice of their decision to every person who has made representations which they were required to take into account in accordance with paragraph (a).").

The noble Lord said: My Lords, I shall not repeat the points I made in Committee on why your Lordships should accept this amendment. I shall just point out the difference between my case and that of the Government which was raised at Committee and in discussions since then. First, the Government have accepted a similar amendment and conceded it as regards Scotland concerning Clause 37 of the Bill. Why is Scotland to be treated differently from England and Wales? Secondly, my noble friend Lord Astor said on 29th January at col. 578 of Hansard, that my amendment would make it complicated for applicants. That is not so. Applicants never study the Act; they merely study the guidance notes which will be the same whether the amendment is on the statute book or in the proposed regulation in the general development order. That last, of course, is subject to the Minister's whim. I have to repeat that the provision to notify all owners to which this clause refers is essential to farm tenants who could lose their livelihood and home. Such a provision should not be governed by regulation, and this was accepted by Parliament in the Town and Country Planning Act 1990, and this Bill should not overrule Parliament's wish.
There is no difference whatever between what this amendment sets out to achieve and what my noble friend on the Front Bench spelt out in Committee. But—and it is a but—my amendment would spell it out on the face of the Bill in line with the long-standing provision in Section 66 of the Town and Country Planning Act 1990 (in fact, it goes right back to 1947), whereas I only have my noble friend's assurance which is to be found in Hansard of 29th January. Much more important than that, any future Minister could change these provisions by regulation for, as my noble friend Lord Astor said at column 578, my amendment would:
"safeguard against any potential future change by whim."
Yet my noble friend opposed it. Pray why? All I want in these amendments is a safeguard against a future Minister waking up one morning and changing rules by regulation that Parliament had decided otherwise—by in fact behaving like Henry VIII, or perhaps, in my family's case, Henry VII. I beg to move.
Lord Renton: My Lords, I am happy not only to support my noble friend but to assure him that, from the point of view of legislative technicality, he is not behaving like Henry VIII. Our accusation against that late, lamented monarch does not arise in the circumstances that I think my noble friend has in mind, but in circumstances where a Minister, or the Crown, is given power to amend an Act of Parliament, and that does not arise here.
I wonder whether my noble friend would be so good—and I would gladly give way if he is able to
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—as to remind us (because I must confess that I have not worked this back through the principal Act) who has the obligation to give the notice under this new Section 65, which also arises under my noble friend's amendment. I assume that it is the local authority that has to give the notice. If that is his recollection, I should be grateful if he could indicate it.
Lord Stanley of Alderley: My Lords, I shall do so in summing up.
Lord Monk Bretton: My Lords, I should like to say just a few words in support of the amendment of my noble friend Lord Stanley of Alderley. One aspect of this that is important is that it is the Government's intention - and governments have been pretty successful about this in recent years, I am glad to say - to make efforts to speed up the planning process.
Of course, the tenant farmer is often a small business man and he is not in a position to have a highly professional watching brief kept on his interests. If he is not notified in the way suggested by the amendment, he may miss out and fare pretty badly as a result. There is no doubting the fact that, with the increasing speed at which the process will take place, the issue will become more significant in the future than it has been in the past. That I why I believe that the amendment is of considerable importance.
Viscount Astor: My Lords, although we differ about the appropriate legislative means for achieving such notification, I can assure noble Lords that the Government agree completely with my noble friend Lord Stanley that such notification is important and that we must continue to provide for it.
I acknowledged in Committee that a requirement in primary legislation represents the maximum safeguard against any potential future change. I was making a point which has universal application and which, if it were followed to its logical conclusion, would fundamentally alter the balance between primary and secondary legislation.
I accept that many applicants for planning permission rely on a combination of guidance notes, booklets and ad hoc advice rather than direct reference to the legislation. Nevertheless, I believe that there is sufficient uncertainty and confusion, even in local planning authorities, about the procedures for notification and publicity of planning applications to justify the proposals embodied in Clause 13.
I can assure noble Lords that Clause 13 is not a Trojan Horse concealing any government intention to ride roughshod over the interests of owners or tenants or to damage their position when a planning application is made. The Government continue to believe that secondary legislation (which is subject to parliamentary scrutiny) is appropriate. The relevant secondary legislation is the Town and Country Planning (General Development) Order. It is subject to the negative resolution procedure which provides for the order to be laid before both Houses for 40 days. At any time during that period, a Prayer may be laid against the order which would oblige the Government to find time for it to be debated.

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We feel that the latter is the appropriate place for all notification, consultation and publicity requirements to be prescribed. I acknowledge the fact that Clause 13 differs from the parallel provision tabled by my noble and learned friend the Lord Advocate which includes a specific reference to notifying owners and agricultural tenants. There are technical reasons flowing, from the historical basis of the Scottish legislation for this difference in approach. In view of the persuasive case put forward by my noble friend Lord Stanley, the Government are prepared to consider the matter. In the light of that undertaking, I hope that he will not pursue the amendments.
Perhaps I may now answer the question raised by my noble friend Lord Renton about who gives notice to the owners and the agricultural tenant at present. Under the 1990 Act, the applicant is required to notify owners and the agricultural tenants.
Lord Renton: I am much obliged.
Lord Stanley of Alderley: My Lords, I must say that I am most disappointed in my noble friend because I too knew the answer to that question. Nevertheless, I thank him for it. It is, indeed, the responsibility of the applicant and is covered by Section 66 of the 1990 Act. I am afraid that I cut my brief down to size due to the lateness of the hour. All I can say at this stage is that this is an important point. It is not something which should be implemented by regulation. We are talking about tenants, houses and homes, which are not a matter for secondary legislation. I believe that it has been or, the statute book since 1947—my noble friend will correct me if I am wrong—and we should not, therefore, throw it out with the bath water.
So far as concerns the negative resolution procedure, I wonder whether my noble friend is really suggesting that we turn down such orders in the future. I do not think that my noble kinsman the Chief Whip would be very pleased if we were to do so. Nevertheless, I am most grateful for my noble friend's concession that he will look again at the matter. In my view, it requires either a change in the Scottish legislation - which I am sure my noble and learned friend would like - or the implementation of the proposal in the amendment. In any event, both pieces of legislation must be in line with one another. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.45 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 77:
Page 23, line 48, leave out ("3") and insert ("5").
The noble Lord said: My Lords, the amendment was spoken to with Amendment No. 4. I beg to move.
On Question, amendment agreed to.
[Amendment No. 78 not moved.]
Lord Dean of Beswick Lord Dean of Beswick moved Amendment No. 79:
Page 24, line 8, leave out ("may") and insert ("shall").
The noble Lord said: My Lords, I shall speak also to Amendment No. 80. We seem to be saying that the law on this issue in Scotland is rather better than the
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law in England. Amendment No. 79 relates to publicity for planning applications. The CPRE supports the amendment, which provides that local planning authorities must notify neighbours of planning applications. I understand that a similar amendment was moved in Committee by the noble Lords, Lord Norrie and Lord Renton. There is currently no statutory duty upon local authorities in England and Wales to notify neighbours, whereas in Scotland developers are required to do so as part of the planning application. The term "notifiable interest in neighbouring land" is already defined in Scottish legislation.
The lack of a statutory duty in England and Wales has resulted in a series of ad hoc discretionary arrangements for notifying the public of planning applications. In some local authorities, the publicity is excellent while in others it is non-existent. The opportunities to become involved in the planning system vary greatly depending upon where people live. The fact that 75 per cent. of local authorities undertake some form of notification means that 25 per cent. of people are without the most basic requirement necessary to ensure that form of public participation in the planning process.
The local government ombudsman is on record as supporting the CPRE's view in a letter dated 21st November 1990, which states:
"We have always favoured the implementation of proper neighbourhood consultation, and accordingly we sympathise with the efforts to make it a legal obligation to notify neighbours of development proposals".
The Government rejected the amendment in Committee on the grounds that it would place a considerable administrative burden on local planning authorities when existing arrangements work well and provide a fair and appropriate balance. No satisfactory explanation was given as to why the Government took a different view about Scotland. The CPRE agrees with the view of the local government ombudsman that the Government's assessment is false. Without compulsory notification, the public will find themselves excluded from the planning process in respect of applications that might affect them directly as soon as they are submitted.
On Amendment No. 80, the CPRE also supports an amendment which would lay down a minimum statutory period of 28 days for public consultation on the planning application. That would formalise a code of practice, agreed in 1980 through the National Development Forum with the DoE, the local authority associations and a wide range of conservation bodies, which required that 28 days' should be allowed for consultation. I beg to move.
Baroness Blatch: My Lords, was the noble Lord speaking to Amendment No. 75?
Lord Dean of Beswick: My Lords, no. I was speaking to Amendments Nos. 79 and 80.
Baroness Hollis of Heigham: My Lords, Amendment No. 75 was moved by the noble Lord, Lord Norrie.
Baroness Blatch: My Lords, a great deal of what the noble Lord said seemed to apply to Amendment No. 75. However, we can give an answer.
Viscount Astor: My Lords, the effect of Amendments Nos. 79 and 80 would be to continue to provide in primary legislation for a specified period during which representations can be received by a local planning authority about a planning application. Those representations must then be taken into account in determining that application. A period of 21 days is at present prescribed in the 1990 Act in respect of representations received in relation to "bad neighbour" development, or from owners or agricultural tenants in relation to any development proposal. Clause 13 paves the way for such requirements to be prescribed in subordinate legislation. This will allow the provisions to be presented more clearly. It will achieve greater flexibility to reflect different requirements and circumstances. The Government therefore oppose these amendments, which seek to retain a more rigid regime in primary legislation.
The Government also oppose the proposed extension by one week of the period for submitting representations. I recognise that local authorities are not always ready to determine planning applications only three weeks after receiving them, and that in practice authorities will take account of representations received after that initial period. Nevertheless, I consider that 21 days imposes a reasonable, yet necessary, discipline for third parties proposing to comment on a planning application. I believe it appropriately reconciles the need to enable interested parties to make known their views with the need for prompt decisions. Accordingly, I hope that the noble Lord will agree not to pursue these amendments.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that explanation. He will not be surprised if I am not enthusiastic about his comments. However, he said that what we wished could be achieved by regulations. Members of your Lordships' House and the people involved will have to watch the situation under the regulations carefully. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 80 not moved.]
Clause 14 [Power of local planning authority to decline to determine applications]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 81:
Page 24, line 37, at end insert:
("(1A) A local planning authority may decline to determine an application for planning permission for development of any land (referred to in this subsection as "the second application") if and so long as a similar application is the subject of an appeal in accordance with section 78 which remains to be determined under section 79 and, in the event of such appeal being dismissed by the Secretary of State, for the purposes of subsection (1) (a) the second application shall be deemed to have been received on the day following the date of such dismissal.").
The noble Baroness said: My Lords, I wish to move Amendment No. 81 and speak to Amendment No. 82. Your Lordships will see that Amendment No. 81 is broadly similar to the twin-tracking Amendment No. 102 at Committee stage where we sought to end the practice under which developers submitted two applications and appealed on one after eight weeks on the grounds of non-determination.
At Committee stage, the Minister and noble Lords opposite were kind enough to share our anxiety and recognise the problem that to permit appeals after eight weeks for substantial and complex developments requiring elaborate consultation was somewhat unreasonable. That amendment sought to ensure that appeals followed rather than paralleled an application with all the pressure on the planning system that it generated.
However, on reflection the Minister still felt that eight weeks was sufficient before the appeal procedure began. I shall not repeat the earlier discussion about the relative pressures on local authorities compared with those on the DoE and the time that the DoE may take to determine its application. Nonetheless, that problem remains.
Amendment No. 81, coming at Report stage, steps back a little and addresses the problem from the other side. Where an application has gone to appeal, the local authority is freed from the responsibility of determining a second and subsequent application. It still produces a single track, even if the move to appeal has been unduly and unreasonably speedy in our eyes, rather than the twin tracks and double workload that were the source of concern both then and now.
I recommend the amendment to your Lordships on three grounds. First, unlike the amendment moved at Committee stage, it should meet the Minister's anxiety that local authorities will not be allowed a leisurely approach in determining planning inquiries and applications—something that I understand and to a degree share. Secondly, this amendment will meet the local authorities' concern about overload on the system which creates the very delays which generated the problem of twin-tracking in the first place. Thirdly, I suggest that this amendment should be acceptable to the developers' interest because there is no infringement of their right to appeal, or delay on appeal. I hope that, with those additional grounds, this amendment, unlike the one tabled in Committee, may find favour with the Minister.
I wish also to speak to Amendment No. 82, which is a more modest amendment. At the moment if a second application is made within 28 days, only one-quarter of the fees have to be paid. There is therefore a positive financial encouragement for repetitive applications and twin-tracking. This amendment would allow local authorities to charge full fees up to a maximum of double the initial fee. That would at least allow fees to be somewhat more commensurate with the workload generated.
This is a probing amendment, but not solely because of the lateness of the hour. The normal way of dealing with fees is by regulation. I hope that the Minister will indicate the Government's views on this matter. I beg to move.
Baroness Blatch: My Lords Amendment No. 81 would outlaw twin-tracking, a tactical device used by applicants with the aim of extracting swifter decisions from local planning authorities. Two applications are submitted simultaneously. After eight weeks the developer lodges an appeal against non-determination of one, while leaving the other in the local planning authority's jurisdiction.
In Committee I explained the Government's view of twin-tracking. We accept that it has undesirable side-effects. It can confuse and frustrate residents and councillors. It can cause problems for local authorities' planning departments, which must prepare for an appeal while continuing to consider an identical application. It also results in appeals being submitted and then withdrawn, which wastes some of the planning inspectorate's resources. However, this difficulty should be reduced by Clause 15 of the Bill, which allows my right honourable friend to dismiss appeals delayed unduly by the appellant.
But twin-tracking does have its advantages. It is important that applicants should continue to have the remedy of an appeal against non-determination to ensure that their proposal can be decided within a reasonable time. Twin-tracking is useful, in that it allows some choice to remain at the local level, and further negotiation even after the submission of an appeal It also provides some discipline on local authorities to consider applications speedily. On balance, we would like to see the use of this practice decline, but it would be wrong to achieve that by undermining important freedoms.
The planning system already significantly limits the individual's freedom to develop his property. We should not take lightly the step of further restraining that freedom. Twin-tracking is not an abuse of the planning system; it is a legitimate approach, although one with some unfortunate side-effects.
Twin-tracking is a symptom of the endemic delay in the planning system. As I said in Committee, the Government would like to see use of the practice decline. But that is best done not by outlawing the symptom but by removing the cause. If local authorities determined applications more speedily, twin-tracking would not be a problem. I am glad to see that the speed of determination of applications is now beginning to improve, but much more could be done. The Government will continue to press local planning authorities to improve their performance; we look forward in particular to the results of a study of development control which we understand the Audit Commission is proposing to undertake.
For the reasons I have described, the Government do not agree that twin-tracking should be outlawed. We therefore oppose Amendment No. 81. But we recognise that the practice does place extra demands on local planning authorities' resources. For this reason I am attracted by the argument of the noble Baroness that it is anomalous to give a 75 per cent. discount on the fee for duplicate planning applications. However, I should like to give careful consideration to the level at which the fees should be set. On 14th December 1990 my department announced that it would consult on the possibility of
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simplifying the fee structure. I can assure the noble Baroness that her anxieties will be taken fully on board in that exercise. I think that would be the appropriate context in which to consider this issue further, rather than on the face of the statute. I therefore do not wish to accept Amendment No. 82 of the noble Baroness. But I hope she will agree to withdraw it in the light of the assurance I have given that the points which she made will be taken into account.
11 p.m.
Baroness Hollis of Heigham: My Lords, I am very grateful for the Minister's reply regarding Amendment No. 82. Like her, I should be delighted if we could move away from the present loss-leader approach to twin-tracking fees. Therefore, if the Minister could respond by means of regulations, we should be delighted. On those grounds, we shall withdraw the amendment.
In the case of Amendment No. 81, I had an uneasy feeling that the Minister was speaking to the amendment as drafted for Committee stage rather than this amendment, since she suggested that we were seeking to outlaw the principle of twin-tracking. The Minister herself put the case against twin-tracking very well. Like noble Lords on this side of the House, she would like to see it diminish. However, she suggested the amendment would outlaw twin-tracking.
The amendment does not undermine the freedom of the developer to appeal. The developer's right to appeal is fully protected and his position is not prejudiced. However, the amendment frees the local authority from continuing to determine an application when another application for appeal is already with the Secretary of State. That is a rather different position from the amendment which was moved at Committee stage, and I felt that the Minister was speaking to that earlier amendment.
The Minister said that the problem of twin-tracking might be addressed by Clause 15 under which the Secretary of State can dismiss appeals where there is undue delay. That is not the problem. It is not a question of appeals being unduly delayed; the problem of twin-tracking is generated where appeals are too speedy.
Given the late hour, I shall withdraw the amendment tonight, but I ask the Minister to be kind enough to reflect on the difference between the amendment tabled at Committee stage and the amendment tabled at Report stage. This amendment does not undermine the developer's rights but it limits the twin-tracking burden on the local authority. I hope that the Minister will feel able to come back to us and meet with us on the issue at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 82 not moved.]
Lord Renton Lord Renton moved Amendment No. 83:
After Clause 14, insert the following new clause:
("Unresolved objections to development orders
. After section 74(1) of the principal Act there is inserted—
"(1A) Any development order made under this section shall specify that a local planning authority shall not grant planning permission for an application to which there is an unresolved objection from the Nature Conservancy Council, the Countryside Commission, the Countryside Council for Wales, the National Rivers Authority, English Heritage, or the County Council for the area in which the land to which the application relates is situated, unless they have notified the Secretary of State of the application for planning permission, along with a statement of the issues involved, and either—

(a) a period of twenty-eight days has expired, beginning with the date of the notification, without the Secretary of State having directed the reference of the application to him or given notice that he requires extra time to consider whether to require reference of the application to him; or

(b) the Secretary of State has notified the authority that he does not intend to require the reference of the application to him".").

The noble Lord said: My Lords, Amendment No. 83 is similar to an amendment that I moved at Committee stage. The discussion on that occasion resulted in a most interesting and encouraging statement from my noble friend Lady Blatch about what the Government intended to do to ensure that the advice given to the Secretary of State by the various quangos was dealt with by him when necessary if there was a conflict between the quangos and a planning application. It is a question of when the Secretary of State should call the matter in.
In view of what transpired in Committee, your Lordships may be surprised that my noble friend Lord Norrie and I should move another amendment on similar lines at this stage. We do so in the light of what my noble friend said and in order to help the Secretary of State to resolve the conflicts I have mentioned and to ensure that he is given the chance to resolve them.
The amendment is worded quite differently from the amendment that was moved at Committee stage. The new amendment does not fetter the discretion of the Secretary of State in any way. It simply requires a pending planning application to be referred to him, not necessarily for his final decision but merely to enable him to decide whether he should call it in. In other words, he is given the opportunity of calling it in. We feel that it is an opportunity that should not be missed.
The effect would be to ensure that he was made aware of the controversial nature of any planning applications where his advisory quangos were concerned and when choosing whether or not to call them in. It would have the beneficial result that major objections on national conservation grounds could not go unnoticed.
I should point out that this amendment is supported by the National Rivers Authority, the Nature Conservancy Council and English Heritage. I am not in a position to say whether it is supported by the other bodies mentioned. But so far as concerns county councils, perhaps I may just say that the amendment returns to county councils some of the
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powers that were lost to them in 1980. They were powers to implement the policies of their own structure plans. One would have thought that it was a good thing that they should be given such powers. We feel that it is right that where there is an unresolved objection made by a county council the Secretary of State should be notified of it and given the chance to call it in just as he should be given the chance to call in unresolved objections made by the statutory bodies which have to advise him on conservation matters.
This amendment is put forward in the light of what my noble friend Lady Blatch said very fully at Committee stage which gave us such encouragement. We are merely trying to be helpful. I beg to move.
Lord Norrie: My Lords, I speak in support of Amendment No. 83. My noble friend Lord Renton has just reminded us that a number of members of the Committee and the Government expressed concern about the way in which the earlier amendment might fetter the discretion of the Secretary of State. They felt that it should be his decision whether applications should be called in. This amendment meets that criticism. It simply requires a copy of the offending planning application and a summary of the key issues to be put before the Secretary of State. He would then have 28 days in which to decide whether to call it in.
I hope that noble Lords will see that positive steps have been taken to change this amendment. The Secretary of State now has total discretion. What is more, there is no need for minor applications to bother him unless the quangos believe that they raise important matters of national interest.
The benefits of this amendment are obvious. It ensures that the Secretary of State is at least aware of the facts surrounding controversial applications before they are allowed to proceed and that he is given a formal opportunity to consider them with a view to recalling them. The result will be better protection for the countryside, a reduction in the rate of loss of SSSIs, less damage to our AON Bs and structure plans which could not so easily be overridden by rogue decisions at district level. I support this amendment.
Lord Ross of Newport: My Lords, I shall speak to Amendment No. 86 which is linked with Amendment No. 83. I very much support the amendment moved by the noble Lord, Lord Renton. Mine is a slightly more limited variation and only covers objections from the Nature Conservancy Council. It deals specifically with the problems relating to SSSIs.
The amendment would set up a procedure which should be followed when a local planning authority intends to grant planning permission for an application which affects an SSSI and where there is an outstanding objection from the Nature Conservancy Council. Specified details must then be sent to the Secretary of State, who has 28 days—and can extend the period if he so desires by notice—in which to consider whether he will call in the application for determination by him. Otherwise the local planning authority can go ahead and grant permission.

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The current practice is for consideration to be given to call-in only where the Secretary of State is made aware of a planning application before the grant of permission is made by a local authority. Even then, as we well know, some weighty representations have to be made; and in good time.
The amendment has three advantages over the current position. First, it sounds an unmistakable note of caution to the applicant. However, careful forethought may be needed to avoid conflict involving intervention by the Secretary of State. It focuses the attention of the local authorities more firmly on SSSIs and their conservation worthiness. It provides a system of positive vetting whereby steps cannot be taken innocently or injudiciously by a local planning authority which can in circumstances lead to action against the Government in an international forum or litigation in the European Court of Justice.
A case at present arises at Cardiff where European legislation may have some effect. Surplus material excavated from a road construction project is being dumped on an SSSI. It is alleged that that dumping exceeds the area for which consent was granted. Both the NCC and the RSPB have objected to the extension of tipping over the previously approved line. The RSPB has taken initial steps to register with the European Commission a complaint alleging infringement of both the European Community wild birds and environmental assessment directives. We understand that the applicant has announced his intention to apply for further consents over larger areas of the SSSI. I am aware that the subject was debated to some extent in another place last evening.
I am always nervous to mention any issue relating to Scotland. However, I am told that the amendment seeks to capture the essence of subordinate legislation already in place in Scotland, and resorted to for explicit guidance purposes. Such legislation is better in Scotland than in England and Wales. That often happens to be the case. Why can not we have the same position in England and Wales? I beg to move.
Baroness Blatch: My Lords, we greatly value the advice and expert knowledge of conservation and heritage bodies. We recognise also the vital role that county councils play in the planning system. Even so I believe that, if agreed, the amendment would still place those bodies in a privileged position which other bodies which also give authorities expert advice would rightly resent.
Secondly, the conservation and heritage bodies have a specific role to play in the planning system and particular interests to foster. But a decision to hold up a planning application in this way should be taken in a rather broader context. The delay and cost involved in doing this caused to the developer, the planning authority and the Secretary of State do need to be justified in the public interest.
Thirdly, requiring the Secretary of State to scrutinise a large number of additional applications will of necessity mean him interfering with local authority jurisdiction to some extent. This is something which I believe we should not do unless it
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is absolutely necessary, and nothing that noble Lords have said today has convinced me to change my mind. I hope that this amendment will he withdrawn.
Amendment No. 86 resembles Amendment No. 83, but is specifically directed at areas of special scientific interest. It seeks to prevent a local planning authority, for a period of 28 days, from granting planning permission for a development which affects a site of special scientific interest and is the subject of an unresolved objection from the Nature Conservancy Council. During this period the Secretary of State would have the opportunity to consider whether to call in the application for his own determination, in the light of particulars provided by the local planning authority.
Amendment No. 83 would put on a statutory basis the existing arrangements for the Nature Conservancy Council to request call-in. DoE Circular 27/87 (Welsh Office Circular 52/87) states that, if a local planning authority
"is minded to grant permission for development against NCC advice, it is important for the NCC to be informed so that it may consider whether to ask the relevant Secretary of State to call in the application".
We have no evidence that these arrangements are working badly—and nothing that has been said in the course of the debate has provided any evidence.
The Government are firmly committed to the conservation of the natural heritage and are preparing a draft planning policy guidance note on nature conservation and planning for public consultation.
SSSIs are a key part of the nature conservation framework. The Government wish to ensure that their value is taken fully into account in the operation of the town and country planning system. We intend to issue a consultation paper next month on development control in SSSIs, proposing additional safeguards. As I informed noble Lords at the Committee stage, we are considering making more explicit the criteria relating to the call-in of planning applications affecting SSSIs.
The Government take the protection of SSSIs very seriously. We shall shortly be bringing forward proposals for public consultation. In view of this, and the existing arrangements in DoE Circular 27/87 for the Nature Conservancy Council to request call-in, I invite the noble Lord to withdraw the amendment.
Lord Renton: My Lords, on this occasion my noble friend has succeeded in convincing me and I am grateful. Although we tried to hook the Government by putting forward this amendment, my noble friend has pointed out that on grounds of delay and cost it is not necessary and might cause delay and cost. For those reasons I beg leave to withdraw it.
Amendment, by leave, withdrawn.
11.15 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 84:
After Clause 14, insert the following new clause:
("Notice of appeal
. After section 78(4) of the principal Act there is inserted—
"(4A) Notice of any appeal made under this section shall be served on any person named in a certificate

529
issued for the purposes of sections 66 or 67, or to any person who has made representations to the authority on the application for planning permission." ").
The noble Baroness said: My Lords, I too hope to convince the Minister. I wish to speak also to Amendment No. 85 and suspect that they have been listed in the wrong order on the Marshalled List. They are a modest pair of amendments which we can all support. Amendment No. 85 proposes that local authorities be required to notify interested parties and those who have commented on planning applications of the outcome of their decision. Amendment No. 84 applies the same principle to appeals. They are about openness, public accountability, courtesy and also a few other virtues. I hope that in that context the Minister will find them acceptable. I beg to move.
Lord Fraser of Carmyllie: My Lords, the effect of Amendment No. 85, which should come before Amendment No. 84, would be to increase the number of people who must be notified of the outcome of planning applications. At present the 1990 Act requires local planning authorities to give notice of a decision to any owners or agricultural tenant who made representations about the application which were required to be taken into account in reaching that decision. Additional notification is at the discretion of the local planning authority.
Noble Lords will know that the Government are committed to streamline the procedures and requirements for publicising planning applications. Accordingly, Clause 13 makes provision for a development order to require a local planning authority to give any person whose representations have been taken into account such notice as may be prescribed of its decision. In undertaking this simplification the Government do not intend to make any substantial change to the present notification requirements.
The amendment would require that planning decisions be notified to any owner or tenant who, despite having been notified of the application by right, nevertheless elected not to make representations. It appears to us to be a wasteful use of resources to notify people who have not expressed any interest, even when invited to do so.
It would be equally poor value for money to notify all third parties who had made representations. In many cases where a planning application has generated significant local controversy the decision of the local planning authority will be well publicised in the local press. In some cases individual notification of all those who made representations would represent a considerable burden on local planning authorities which might even be faced with the task of contacting individually every signatory to a petition as well as those who expressed support for the application.
Amendment No. 84 seeks to introduce parallel notification requirements where a planning appeal is made to the Secretary of State. I am happy to assure the noble Baroness that such requirements are already effectively in place. Under the regulations which govern the procedure for appeals determined by
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written representations the local planning authority must notify all of those referred to in the amendment that an appeal has been submitted.
A similar procedure is followed for cases heard at public inquiry. The Planning Inspectorate writes to the local planning authority and asks it to inform all those interested in the case that an inquiry is to be held. Although this arrangement is voluntary, we have received no evidence to suggest that it is inadequate. With that explanation, I hope that the noble Baroness will appreciate that Amendment No. 84 is unnecessary.
Baroness Hollis of Heigham: My Lords, I thank the noble and learned Lord for that very helpful reply. I was not aware of the situation which he described as regards Amendment No. 84. However, given that assurance and description, I am happy to withdraw the amendment.
I am slightly less persuaded by his response to Amendment No. 85 because, even if a potentially interested party has not responded, nevertheless, it may be affected by a decision. Therefore, I believe that we should be on the side of openness of information and spreading that information to affected parties.
I thought that in his reply the noble and learned Lord was making rather too much of the work involved for the local authority. In consideration of who should be notified, this amendment seeks to bring the weaker local authorities up to the best practice of the better authorities. It may be that the same objective can be met by planning guidance. However, I hope that the Minister will accept that this issue is about openness and consultation, because that is how planning decisions are legitimised. In the context of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 85 not moved.]
Lord Ross of Newport Lord Ross of Newport had given notice of his intention to move Amendment No. 86:
After Clause 14, insert the following new clause:
("Determination of applications affecting SSSIs
. After section 76 of the principal Act there is inserted—
"Determination of applications affecting SSSIs.
76A—.(1) Where a local planning authority propose to grant planning permission for a development which affects an area of special scientific interest in respect of which the Nature Conservancy Council has objected to the grant of such permission or recommended conditions which the authority do not propose to attach to the planning permission, and has not withdrawn that objection or recommendation, they shall submit to the Secretary of State the following particulars

(a) a copy of the application for planning permission and of such plans and supporting documents relevant to it and taken into account by the authority;

(b) details of any representations made to the authority about the proposed development together with the comments of the authority on them; and

(c) the reasons of the authority for proposing to grant planning permission.

(2) Subject to subsection (3), a local planning authority shall not grant planning permission for a development to which this section applies before the

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expiry of a period of 28 days beginning with the date notified to them by the Secretary of State as the date of receipt by him of the particulars specified in subsection (1).
(3) The Secretary of State may, at any time during the period specified in subsection (2), notify the local planning authority that a longer or shorter period shall be substituted for that period.
(4) If on the expiry of the period referred to in subsection (2) of (as the case may be) notified under subsection (3) the local planning authority have not received from the Secretary of State a direction under section 77 (reference of applications to Secretary of State) the authority may proceed to determine the application.
(5) In this section—
"area of special scientific interest" means an area in relation to which a notification given, or having effect as if given under section 28 of the Wildlife and Countryside Act 1981 (areas of special scientific interest) for the time being has effect."").
The noble Lord said: My Lords, I welcomed the Minister's comments about the need to protect SSSIs in relation to the forthcoming discussion document. However, I was rather surprised that she is unaware that the situation is causing anxiety to the NCC. I believe that it is.
[Amendment No. 86 not moved.]
Lord Dean of Beswick Lord Dean of Beswick moved Amendment No. 87:
After Clause 15, insert the following new clause:
"Time limit for appearance
. In section 79(2) of the principal Act there shall be inserted at the end ", provided that such an appearance shall not take place for at least 14 days after the date on which the appearance is notified to the person requesting it".").
The noble Lord said: My Lords, the purpose of this amendment is to provide a minimum period between the date on which a public inquiry or hearing is called and the date on which it takes place. The inquiry procedure rules set out guidelines for the conduct of public inquiries. They include clear advice on how to avoid delays and inefficiency, including efforts to ensure that there is not an enormous delay between the lodging of an appeal and the date on which an inquiry is held.
While that is clearly sensible, there is no equivalent rule which provides a minimum period before which an inquiry is held. The National Housing and Town Planning Council considers that that is necessary because, if the time period is too short, the parties will not have time to prepare for it. That is a particular problem for third parties which have no opportunity to affect the date on which the inquiry is held although the developer and local authority must agree to it if possible.
Sometimes it is possible for an inquiry to take place at unexpectedly short notice. That can happen if, for example, another appeal is withdrawn and an inspector becomes available at short notice. That can cause problems. I have details of an inquiry called at extremely short notice. The inspector reported that some local people had had only 36 hours' notice of the inquiry. The site notice referring to an inquiry was put up on the Friday referring to the public inquiry for the following Wednesday. That surely is not sufficient
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time. A number of residents complained to the local authority that they were unable to attend the inquiry at such short notice. In any event there was little time for third parties to assemble their cases.
The inspector proceeded with the inquiry but agreed to accept subsequent written representations. While that made the best of a bad job, it prevented those unable to attend the inquiry from either cross-examining others or being cross-examined themselves. The purposes of the inquiry were to some extent lost, and the final decision was no doubt delayed to take account of any written representation received during the subsequent four weeks. It would have been better to postpone the inquiry. Justice may or may not have been done, but it was not seen to have been done, which is an important aspect of planning procedures.
The amendment proposes that primary legislation should contain the provision that a two-week minimum period be set aside after the calling of an inquiry until the inquiry takes place. There is a question of whether this is suitable for primary legislation or whether it would be better placed in the inquiry procedure rules. While the National Housing and Town Planning Council would settle for the rules, it believes that primary legislation would he more reliable.
Precedent is to be found in Section 66(6) of the principal Act which ensures that persons affected by planning applications have a guaranteed 21-day period following their notification of the application within which the local planning authority is barred from reaching a decision. That gives people time to assemble their comments and submit them to the authority. If that is sensible for planning applications, which it is, is it not sensible also for comparable limitations to be introduced for planning appeals? I beg to move.
Lord Fraser of Carmyllie: My Lords, I have listened to what the noble Lord has had to say but I do not see the need for the amendment. I do not entirely understand what the difficulty is. As I understand the position, under the inquiry procedure rules for planning appeals the Secretary of State is required to give at least 28 days' notice of an inquiry to those entitled to appear at it. Moreover, a number of procedures have to be undertaken before that notice can be given. An inquiry cannot normally commence until several months after the initial request to be heard.
Informal hearings are governed by a code of practice rather than statutory rules, but that similarly provides that at least 28 days' notice of arrangements will be given. In the circumstances the amendment is wholly unnecessary. I did not understand how the specific example given by the noble Lord could come about. However, I shall examine the matter to see what arose in that connection and either I or my noble friend Lady Blatch will write to him.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that reply. I am sure that the National Housing and Town Planning Council will have

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concrete evidence of the situation that it came across. I shall attempt to obtain more details and write to the Minister. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey: moved Amendment No. 88:
After Clause 16, insert the following new clause:
("Control over agricultural and forestry buildings and roads
. After section 59(3) of the principal Act (development orders) there is inserted—
"(4) No development order may grant permission for the erection of a building or the formation of a private way for purposes of agriculture or forestry." ").
The noble Lord said: My Lords, I see one farmer on the opposite Benches and one farmer on my own Benches, and therefore I dare to rise to move Amendment No. 88. I am sure that the noble Lord, Lord Stanley, is far too tired to resist the overwhelming case which exists for the amendment.
The planning control of farm buildings is an anomaly which has been part of our planning legislation for almost 50 years, and is none the better for that. On the face of it there is no reason why agricultural buildings should have any other exemption from planning control than, for example, industrial or commercial buildings.
The rapid conversion of an agricultural building into something which is not agricultural after permission has been obtained has been a feature of our countryside ever since planning controls were set up, or even before that. It is not as if this was a matter on which the Government had not agreed in principle that something had to be done. The trouble is that the Government have not agreed that enough should be done to deal with the very real problem.
It is a problem that intrusive buildings are erected in the countryside without due regard for the appearance of the countryside. It is a problem that buildings erected for agricultural purposes turn out in the end to be residential accommodation. It is a problem that barns can be built in an intrusive way, or cowsheds can turn out to have dormer windows, or that small agricultural plots can turn out to carry huge sheds. It has always been a problem on the fringe that stables, which are really a commercial use rather than an agricultural use, achieve exemption which other commercial activities do not.
The Government's acceptance that something is wrong does not go very far. They have agreed to extend the threshold size below which permitted development rights are not available from 0.4 hectares to 5 hectares, but my understanding is that only 0.6 per cent. of farm holdings in England are in units of less than 5 hectares, so this is going to be a minimal exemption. They have also agreed to extend to the whole country the notification arrangements that apply in national parks.
That may sound satisfactory, but in practice a survey which has been carried out by CPRE of the national parks has revealed that the notification arrangements are quite unsatisfactory, and seven out
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of the nine national parks authorities have expressed the view that they would prefer to see full planning control rather than the notification arrangements which exist at present in the national parks.
It is not even as if the notification arrangements save time. In over 50 per cent. of all notifications there were negotiations which took just as long as planning controls and did not have the same force of law or the same effect. For that reason, a very large number of bodies concerned with the countryside - the Countryside Commission, the Association of District Councils, the District Planning Officers Society, the National Housing and Town Planning Council, and the Ramblers' Association - all agree that full planning control should be applied to agricultural buildings. I hope that the House will agree. I beg to move.
11.30 p.m.
Lord Gibson-Watt: My Lords, I rise to oppose this amendment, largely on the forestry side. The Government are faced with a mare's nest if they try to tackle planning control over forestry buildings and forestry roads. What is a forestry building? Is it the sort of shelter which is put up for foresters to do their work in, something quite small and temporary? What is a forestry road? Is it where an owner takes out a bulldozer and makes a ride for the extraction of his trees?
This matter is far more complicated than the mover of the amendment, the noble Lord, Lord McIntosh, makes out. I know there has been controversy in this sphere, but I very much hope that the Government will not agree to the amendment.
Lord Stanley of Alderley: My Lords, I should be disappointing the noble Lord, Lord McIntosh, if I did not rise to his bait. He is exaggerating about the double-glazed cowhouses that he has seen. I have not seen one. When he next does so, perhaps he will take me to see it. In all seriousness, many agricultural buildings are very beautiful. If my memory serves me right, His Royal Highness spends a great deal of his time in trying to preserve our barns, and good luck to him. We shall see similar events in the future. On a personal note, I am not particularly happy that the planning controls will make them any better. Neither my male nor my female ancestors would have been able to produce Longleat or Sheffield Park if they had the planning controls that we have today. I hope that my noble friend will resist this amendment.
Baroness Blatch: My Lords, we have shown that we are prepared to introduce new, closely-targeted controls where this is necessary to deal with specific problems. Most recently, we have proposed a system of prior notification which would enable local planning authorities to control the siting, design and external appearance of farm and forestry buildings erected under the general development order. We have invited views on including farm and forestry roads in such a system. And we have proposed raising substantially the minimum area of agricultural land attracting permitted development rights under the

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general development order, from 0·4 hectares to five hectares, with special provision for genuine units below the new threshold.
The proposed notification system would build on arrangements currently operating in the national parks. It would represent a major change offering significant amenity benefits. At present local authorities outside national park areas are not consulted about permitted development, so they do not normally have an opportunity to give even informal views and advice. If our proposals were adopted, they would have the right to require details of siting, design and external appearance for their prior approval. We have had some 400 responses to the consultation exercise which closed last month. We are considering them very carefully. It is too early to say what our final conclusions will be.
I want to return now to a point which the noble Lord, Lord McIntosh, raised when he introduced the parallel amendment at Committee stage. He said he was particularly concerned about the abuse of the permitted development rights for agricultural buildings to construct buildings that were not farm buildings but were in effect residential. To qualify for permitted development rights under the general development order a building must be
"designed for the purposes of agriculture",
and must be
"reasonably necessary for the purposes of agriculture"
within the agricultural unit concerned. These are significant safeguards. Under a notification system the local planning authority would, for the first time outside national parks, have to be notified of all new farm building proposals for which a planning application was not made. This would substantially aid enforcement. The enforcement provisions in the Bill would also assist.
Our proposals to introduce prior notification and raise the minimum area of agricultural land qualifying for permitted development rights would be a significant extension of planning controls over agricultural and forestry development. We are not in favour of a complete withdrawal of permitted development rights, which would place major new burdens on the agriculture and forestry industries at a time when aggregate income for agriculture is at its lowest since 1945. But as I have said, we shall be considering the responses very carefully before we take final decisions in the light of the consultation. I hope that the amendment will not be pressed.
The noble Lord, Lord McIntosh, quoted the CPRE as having evidence to say that the notification system in national parks was not working. I have to tell him that we have just received a very detailed report of a research project which does not support that claim. The report has not yet been published, but it will be very soon. Then the noble Lord will see the CPRE evidence invalidated. He will be quite surprised at the evidence that we have to offer. I hope that this amendment will be withdrawn.
Lord McIntosh of Haringey: My Lords, the Minister will hardly expect me to roll over and wave
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my paws in the air at evidence which she is unable to produce. She will hardly expect me to anticipate evidence that I have not seen and which she had not yet been able to analyse. I am able to produce my evidence. The CPRE has carried out a survey of the national parks' authorities. Only two of them, Snowdonia and the Yorkshire Dales, believe that the notification process is adequate to the purpose. I do not think that the House will allow me to give chapter and verse of the answers received from the authorities representing the Broads, Dartmoor, Exmoor, North Yorkshire Moors and Northumberland. Those are the answers that I have in front of me. They all believe that the notification process is inadequate. If they are the ones who have been having to implement it, it is difficult to see on what basis the Minister feels confident in extending it to the rest of the country and claiming that it is a successful experiment which will meet the needs of the case.
I am bound to say that all the Minister has done in response to my amendment is to say that she has not got an answer yet. If she has not got an answer yet, then all that means is that the Government are going to be faced with this amendment continuously until they have an adequate answer, or at least an answer that they can attempt to put to Parliament. With that threat, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ross of Newport Lord Ross of Newport moved Amendment No. 89:
After Clause 16, insert the following new clause:
("Development permitted under interim development orders
After section 105 of the principal Act there is inserted—
Development permitted under interim development orders.
105A.—(1) Where any development is authorised by virtue of a permission granted on an application made under an interim development order between 21 July 1943 and before 1 July 1948 and that permission is still valid the person entitled to the benefit of that permission shall, within one year of the date of entry into force of this provision, send a copy of the permission to the local planning authority or authorities in whose area or areas that permission will have effect.
(2) Within fourteen months from the date of entry into force of this provision every local planning authority shall establish a register of permissions in their area granted under interim development orders and that are still valid.
(3) Provision may be made by regulations or a development order for prescribing the information about the permissions that is to be entered on the register.
(4) It shall be the duty of a local planning authority to secure that the register established under subsection (2) above is open to public inspection free of charge at all reasonable hours and to afford members of the public reasonable facilities for obtaining from the authority, on payment of reasonable charges, copies of entries in the register.
(5) Any person who is entitled to the benefit of a permission of which he has sent a copy to the authority may notify the authority within three months of the date of establishing the register that his permission has been omitted from it and on receiving such notification it shall be the duty of the authority to enter that permission in the register.
(6) Within two years of the date of entry into force of this provision any permission granted on application under an interim development order between July 21

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1943 and July 1 1948 that is not entered on the register established under subsection (2) above shall cease to have effect.
(7) Where a permission has ceased to have effect by virtue of subsection (6) above no compensation under the provisions of this Act shall be payable to the person entitled to the benefit of it.
(8) Entries on the register established under subsection (2) above shall also be entered on the register established under section 69 of the principal Act.").
The noble Lord said: My Lords, I beg to move Amendment No. 89 which appears in my name on the Marshalled List. It deals with the interim development orders and particularly with gravel extraction. This matter was raised in Committee by the noble Lord, Lord Moran, the noble Baroness, Lady David, and by myself, and there may well have been others. I am sorry, I have not fully checked up. In response to what was said then I, and no doubt other Members of this House, received substantial information from the British Aggregate Construction Materials Industries. I must say that one had to take note of what it sent to us.
Obviously one cannot just produce amendments in this House which create problems for the construction industry and some of its assets. But it came up with a suggestion that I hope the Government might feel is sensible. Perhaps I have been a bit too generous in what we tabled. I asked our legal adviser to table a suitable amendment to cover what was suggested in the information from the aggregate people, and I hope that he has made a good job of it.
The fact is that we do not know how many IDOs still exist. Both the Department of the Environment and the county councils have attempted to carry out surveys to identify how many remain valid with potential for either continuation of quarrying or reopening of workings. Neither, I am told, has managed to complete a full survey because the counties have incomplete records of them as a result, in particular, of the 1974 reorganisation of local government.
Because there is so much doubt about the scale of IDOs still extant and the consequences of taking action could be so serious for the quarrying industry, BACMI—that is the shortened term for the organisation—believes it would be wrong to amend the legislation until the scale of the problem has been fully identified or until the Department of the Environment review of the workings of the 1981 Act has been completed.
In the short term BACMI supports the proposal made to it by the County Planning Officers Society that provision should be made in this legislation for a system of compulsory registration of IDOs rather on the lines of the commons registration system. That actually seems to have gone rather wrong, but never mind, I will leave that alone. The provision could take the form of a requirement to register all IDOs and their extent within two years, after which any unregistered IDOs would be lost. This would have the advantage of allowing a full assessment of the scale of the problem before decisions were taken on what needs to be done.
I felt that that was not an unfair approach, and therefore that is what the amendment which I now move attempts to do. I would hope that, in view of the fact that it is the aggregates organisation itself which is prepared to accept this and the planning officers themselves who suggested it, the Government will take it on board.
Lord McIntosh of Haringey: My Lords, Amendments Nos. 98 and 99 tabled in my name and that of my noble friend Lady David have been grouped with the amendment just moved by the noble Lord, Lord Ross of Newport. These are very serious matters and I believe that a full answer is required to the arguments put forward by the British Aggregate Construction Materials Industries. However, in view of the agreement which we have reached about the close of Business this evening, I do not believe that those arguments can be properly explained in 30 seconds flat. I propose, therefore, to ungroup my amendments from the amendment now before us so that it can be dealt with more speedily.
Baroness Blatch: My Lords, my noble and learned friend the Lord Advocate said in Committee that the Government were considering whether action should be taken to deal with IDO permissions in advance of the findings of our more general review of the existing powers available to mineral planning authorities for revoking or modifying minerals permissions generally and that we hoped to announce our conclusions before the Bill has completed its passage. It is not a simple matter. Minerals are an important national resource and the country needs to maintain a steady supply. However, as we made clear in the environment White Paper, it is necessary to strike a careful balance between the interests of amenity and the need to exploit the resource. Mineral operators must take account of best environmental practice and aim to be good neighbours. We are aware that increasingly the industry accepts its responsibility to work sites in an environmentally sensitive manner and to restore land once working has ceased. Nevertheless, the Government believe that it is inequitable that the extent and terms of permissions which have been in existence for close to 50 years are not recorded and that householders and others may have been disadvantaged by this lack of knowledge.
We shall therefore bring forward amendments during the passage of the Bill to provide that, unless the holder of an IDO permission applies to the appropriate mineral planning authority within six months from Royal Assent for the permission to be registered, the permission will cease to have effect. We shall of course consult on the detail of what we have in mind, including the appropriate time period for registration.
However, we recognise that registration in itself will not deal with the problems of the lack of conditions attached to such permissions. Residential and other development may have been built on or near IDO permission areas; similarly, parts of IDO sites may have been designated as sites of special scientific interest or of other environmental importance—without knowledge of the fact that the permission

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existed or the terms of the conditions attached to it. The Government are, therefore, considering whether to require that applications for registration of IDO permissions are accompanied by schemes of operating, restoration and, where appropriate, aftercare conditions for the approval of the mineral planning authority.
The Government take the view that it would be sensible to use the opportunity of registration to apply conditions and believe that responsible operators would share that view. Applicants would be able to appeal to the Secretary of State against refusal or the imposition of unreasonable conditions by the authority. We shall be issuing a short consultation paper on our proposals in the next few days and will consider the response before taking a firm decision. The question of the impact of the proposals on the compensation rights of operators will be covered in the consultation exercise. In view of that explanation, I hope, that the noble Lord will feel able to withdraw the amendment.
Lord Ross of Newport: My Lords, I can hardly moan about that because I actually suggested a period
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of one year and the Government have proposed six months. It is a step in the right direction. I welcome what has been said, but I shall obviously want to study it. Judging by the glares which I am receiving from Members on the Opposition Front Bench, it is possible that I have been slightly over-generous in my response. It would seem that the Government are on the right side of the Opposition for once. I am grateful for the Minister's reply. I believe that we are all delighted by the fact that the Government are taking notice of what is a most difficult situation; indeed, some landowners are in an appalling situation. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Astor: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at eleven minutes before midnight.