Planning and Compensation Bill

HL Deb 17 January 1991 vol 524 cc1331-82

House again in Committee on Clause 5.

Baroness David moved Amendment No. 25: Page 6, line 46, leave out ("on the owner and").

The noble Baroness said: In moving this amendment I shall speak also to Amendments Nos. 26 and 27. They are very modest amendments but quite important when speaking about enforcement. If they were accepted I believe that they would be a positive help. Amendment No. 25 seeks to remove a difficulty frequently encountered in enforcement; namely, that the courts have tended to take a very strict view of the service requirements of an enforcement notice. Even minor errors on the face of a notice have stopped enforcement action. One of the difficulties most frequently encountered is a specification which is properly described as "owner, occupier or interested person". That difficulty is most commonly experienced in leasehold areas such as Greater Manchester where the recipient of a request for information is often confused as to who is the legal owner.

For example, it is quite common for a long leaseholder to describe the freehold owner of the reversion as the owner. It would be helpful therefore if this clause made it clear that it was unnecessary for the owner etc. to be identified in the notice so long as the requirements as to service were satisfied. The notice should not be invalidated by a misdescription of this kind. There is a problem here. It is similar to the situation of the drivers of vehicles when they are stopped. There needs to be a little flexibility and responsibility. These are helpful amendments. They suggest a solution to this little problem. I hope that the amendments are acceptable to the Government. I beg to move.

Baroness Blatch

It may be helpful if I remind the Committee about the present approach to service of a copy of an enforcement notice on an owner of the land specified in the notice and of the provisions for appeal to the Secretary of State against a notice.

It is a fundamental and long-standing requirement that a copy of an enforcement notice be served on the owner and the occupier of the land. The owner and occupier, assuming that they are not the same person, will almost always be the people with the main interest in the land. Section 174 of the 1990 Act enables, A person having an interest in the land to which an enforcement notice relates", to appeal against it to the Secretary of State. So that the owners of the land may be alerted to the possible need to appeal against a notice, we think it would be surprising if the planning authority were not required to serve a copy of the notice on the owner without any qualification about the practicability of service. However, this ground of appeal is subject to the discretionary provisions in Section 176(5) of the 1990 Act (which are not being amended by the Bill) enabling the Secretary of State to disregard the failure to serve a required person with a copy of an enforcement notice if neither the appellant nor that person has been substantially prejudiced by the failure. So defective service may not prove fatal to an enforcement notice.

We naturally recognise that planning authorities sometimes have difficulty in establishing the identity and whereabouts of the owner of a parcel of land. This is especially so in cases where the owner is living abroad and appears not to have left the management of the land in an agent's hands. But Section 329 of the Act already provides various ways in which a notice or document may be served on a required person. For example, it may be left at the person's, usual or last known place of abode or it may be sent by recorded delivery to that address. In the last resort, if the owner's name cannot be ascertained, Section 329(2) of the 1990 Act provides for the notice to be served by affixing it conspicuously to some object on the land. In our view, these provisions achieve a reasonable balance between the need to inform owners that an enforcement notice has been issued and the need to avoid imposing too onerous a service obligation on the planning authority. We would be reluctant to alter this balance without convincing evidence that it is seriously hampering planning authorities in taking enforcement action.

On Amendment No. 26, we appreciate why the noble Baroness would like to include a statutory provision on the lines of the proposed subsection (2A) in Section 173 of the 1990 Act so that a notice could not be invalid because of a failure to serve a copy of it on the owner of the land when all the other service requirements have been satisfied. But we think this would go too far in the direction of relaxing the present requirement. I have already mentioned that it is a ground of appeal to the Secretary of State that a notice was not correctly served. And I understand that when an appeal is made on this ground it is quite usual for the Secretary of State or a planning inspector not to quash an enforcement notice because it is found that the failure to serve a copy on a required person has not substantially prejudiced that person. Again, these provisions achieve a careful balance between opposing interests and we would be reluctant to alter it, especially as the Carnwath Report has not recommended any change in this respect. With that explanation I hope that the noble Baroness will not press the amendment.

Baroness David

I thank the Minister for that lengthy reply, read at great speed. There is certainly no doubt that it will have to be read to be understood properly. As usual, the matter is infinitely more complicated than one imagined. I shall discuss the issue with my noble friend and decide whether it is worth returning at a later stage with another proposal. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments- Nos. 26 and 27 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 27A: Page 7, line 31, leave out ("removing or alleviating any") and insert ("restoring or minimising any loss or").

The noble Lord said: In moving this amendment I hope that it will be convenient to the Committee to consider also Amendment No. 27C. Amendment No. 27A appears to be just a drafting amendment but it is one which may be of considerable help in interpreting the Act when it is passed. The amendment seeks to remove the words "removing or alleviating any" and to insert the words, "restoring or minimising any loss or". I am advised by the Law Society of Scotland, whose representatives spend a great deal of time in the courts, that the wording suggested would be easier to interpret than the words "removing or alleviating any". Those words are not easy to understand. The amendment is not changing the sense of the subject at all but: merely making it easier to understand and providing a more straightforward definition. I beg to move.

Baroness Blatch

The noble Lord did not press very hard for the change in Amendments Nos. 27A and 27C. We think the proposed reference to "restoring or minimising any loss" is no real improvement on the existing words which were introduced in 1981. The expression "removing or alleviating any injury to amenity" is now well known and we see no justification for the proposed change. I hope that the noble Lord will not press the amendment.

Lord Carmichael of Kelvingrove

I am disappointed by that answer. The amendment was suggested by the Law Society. I am sure that it did not put the amendment forward lightly. It must have found certair ambiguities when trying to define "removing or alleviating". I did not press the matter hard because I thought the case was obvious. I wonder whether the noble Baroness or the noble and learned Lord the Lord Advocate knows whether there has been discussion of the matter before the courts. The amendment is not important enough to press but it seems to my layman's mind a reasonable amendment. Until the Lord Advocate has time to reconsider it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 27B: Page 8, line 36, leave out ("may") and insert ("shall").

The noble Lord said: This is a "may" and "shall" amendment. It seeks to render it mandatory on a planning authority to withdraw a notice which serves no useful purpose. There is no reason why an enforcement notice which serves no useful purpose should be withdrawn only at the discretion of the planning authority. It is surely in the interests of clarity for all concerned that planning authorities should be obliged to withdraw notices that no longer serve the purpose they were intended to. It would be a help to those involved in the planning procedure if the matter were made compulsory. I beg to move.

Baroness Blatch

Amendments Nos. 27B and 27D pose yet again the arguments about rigidity versus flexibility. We would prefer to leave the planning authority with discretion about whether to withdraw an enforcement notice if it no longer serves any useful purpose. That power can be exercised only after the prior notification process specified in subsection (5). The discretion will enable the planning authority to make its decision in the light of representations to it.

Lord McIntosh of Haringey

Can the Minister give us an example of a case where a local planning authority will wish to retain a notice when it serves no useful purpose?

Baroness Blatch

I do not wish to spend my time giving examples. All I am saying is that if there is any occasion when a planning authority can usefully use discretion, it is better to have discretion. Where it is appropriate the planning authority will exercise its power accordingly.

Lord Carmichael of Kelvingrove

I am sorry that the noble Baroness is again unable to help us. I cannot understand why there should be discretion. There is either a case or there is not a case for a notice. If there is no case for a notice, it should be withdrawn. If the time has passed for the notice to be valid, it should be withdrawn.

This seems to be the old story of the words being in the Bill and of everyone being afraid of the possible repercussions if they are changed. If notices are no longer valid, why should not the person involved be told that a notice has been withdrawn? I hope that the noble Baroness will feel aggrieved about the matter and will take it back to her department. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 30 [Enforcement notices]:

[Amendments Nos. 27C and 27D not moved.]

Clause 30 agreed to.

Clause 6 [Appeal against enforcement notice]:

8.15 p.m.

Lord McIntosh of Haringey moved Amendment No. 28: Page 9, line 8, after ("For") insert ("section 174(1) (persons entitled to appeal), and").

The noble Lord said: In moving this amendment I should like to speak also to Amendments Nos. 30 and 34. I understand that the amendment has been grouped with Amendment No. 31 A in the name of the noble Lord, Lord Coleraine.

With these amendments we are concerned with the range of people who are entitled to appeal against an enforcement notice. In England at any rate the principal Act gives a right of appeal to a person having an interest in the land to which the notice relates—in other words, a relevant occupier. The amendments suggest that that is an inadequate definition for a number of reasons. We suggest that the alternative ought to be persons, whose interests are materially affected by the notice". It is important that those who have an interest in the land should have a right to appeal, but under the legislation if people do not have an interest in the land but have a material interest that ought to give them the right to appeal.

For example, there are those who could be prosecuted for failing to comply with a notice. That group of people can go further than those who have an interest in the land. There are those who can be prosecuted when an appeal is withdrawn. There again, they do not have an interest in the land but they could be materially affected and ought to have a right to appeal. Where the interest in the land is with the husband or with one spouse, there could be the other spouse's interest. That would be covered by the phrase "materially affected" but is not covered by the phrase "interest in the land". There is also a whole group of people who occupy land by virtue of an unwritten licence—it is sometimes called a bare licence. They could certainly be affected by the decision on an enforcement notice. They ought to have the right to appeal.

When we are seeking to tidy up the legislation we should make the enforcement procedures as comprehensible as possible. At the same time we ought to see to it that they are fair. The present provision, with the wider implications which it brings of interest in land, is not adequately reflected by the old definition of an interest in the land. I suggest that the wording I have proposed is superior and I hope that the Government will feel sympathetic to it. I beg to move.

Lord Coleraine

What worries me about the noble Lord's amendment is that it will widen the net to a large extent. The people with the interests to which he is referring cannot be defined. Anyone might claim to have an interest in an enforcement notice. I am interested in the bare licensee—the occupier—to whom the noble Lord referred. The rights of an occupier without a licence in writing have over the years tended to be diminished. The occupier is quite often a caravan occupier. In the past the law was more favourable in this regard than it is now. The Law Society has records of a council member who represented someone who occupied land in this way for 19 years without any licence in writing. In that case it was able to persuade the court to hear him. I daresay that the issue of interest in land came up. It is a difficult concept.

People who have to deal with enforcement notices are not able to deal satisfactorily with the definition of interest in land, which is extremely complicated. We feel that the best way out of this difficulty is to restore the law to what it was at one time in the past and allow an occupier to have the right, notwithstanding that his licence to occupy is not in writing.

Baroness Blatch

Amendment Nos. 28, 30 and 34 tabled in the name of the noble Lord, Lord McIntosh of Haringey, would vary the provisions of the present subsection (1) of Section 174 of the 1990 Act and provisions of the Scottish Act which confer the right of appeal to the Secretary of State against an enforcement notice on, a person having an interest in the land", to which the notice relates or "a relevant occupier", whether or not a copy of the notice has been served on him. A "relevant occupier" is defined as a person who on the date on which the enforcement notice is issued occupies the related land by virtue of a licence in writing and continues so to occupy the land when the appeal is brought. The amendments would confer the right of appeal on a person on whom a notice is served or any other persons whose interests are "materially affected" by the notice, thus extending the right of appeal, as my noble friend Lord Coleraine said, beyond the scope of the present provisions in Section 174(1).

Because the effect of an enforcement notice will be suspended by submitting a valid appeal to the Secretary of State against the notice, it is important that the scope of the right of appeal is carefully defined so as to include anyone who has an interest in the land which he should be able to safeguard by submitting an appeal. We think that the present provisions of Section 174(1) achieve this aim. In particular they have included, since they were last amended in 1984, a person who occupies the land by virtue of a written licence; in other words, someone who is lawfully on the land.

The effect of Amendments Nos. 30 and 34 would be to confer the appeal right on, any other persons whose interests are materially affected by a notice". The expression appears to include people who have no interest in the land; for example, squatters or trespassers. We do not think that this would be acceptable. The lawful owner or occupier of land should not be put at risk that someone who has no right to occupy the land is enabled to appeal against an enforcement notice.

Amendment No. 31A tabled in the name of my noble friend Lord Coleraine would remove the reference to occupation of the land by virtue of a licence in writing. We think that that would result in the same problems of extending the right of appeal unwarrantably which I have already mentioned. Although I understand that the Law Society has suggested this amendment, I regret that we cannot accept it. Again, it would mean that someone who has no right to be on the land could have the right of appeal. I hope that these amendments will not be pressed.

Lord Coleraine

My noble friend has drawn the distinction between someone who has the right to occupy the land by virtue of a licence in writing and a squatter. However, there is the intermediate stage where someone is occupying the land in question with permission but without any licence in writing. Such a person may not be able to obtain a licence. For example, a person may be trying to obtain a squatter's title, which is not the same as occupying the land as a squatter. In such circumstances the person will not want to go to the owner and disclose the fact that he needs a licence in writing.

There is a category of occupier where the person is a licensee who has permission but who does not have the relevant licence. Such a person should be protected in the way suggested by the amendment. However, I have heard what my noble friend has said. I shall take her thoughts away with me and consider them with the aid of my advisers.

Lord McIntosh of Haringey

I should make clear at once that I do not intend to press these amendments. However, I am quite dissatisfied with the Minister's reply. When she says that my wording could give rights of appeal to squatters, she has a case and it is possible that the "materially affected" wording which I use in the amendments is inadequate. Nevertheless, I gave four specific examples where someone who does not have an interest in the land and who is not a relevant occupier according to the terms of the legislation still has an interest which ought to be protected by a right to appeal.

Perhaps I may repeat those four cases and invite the Minister to respond to them to see whether we receive a more satisfactory answer than we have received thus far. I shall repeat them slowly so that the Minister can obtain advice upon them if necessary. The first example is the case of those who can be prosecuted for failing to comply with an enforcement notice. Surely such people should have a right to appeal. What proposals do the Government have to protect them?

The second case concerns those who would be exposed to prosecution when an appeal by a person qualified to do so is withdrawn at a stage when the period for compliance with the notice has expired. Those people are affected and could be exposed to prosecution even though they do not have an interest in the land.

Thirdly, there is the case where there is a wife's interest which is not an interest in the land but an interest through her husband's interest in the land; or, indeed, it could be a husband's interest through his wife's interest in the land. There again, there could be a material interest which ought to be protected but which does not appear to be protected under the existing wording. Without going into issues such as the position of squatters, I believe that the latter interest ought to be protected. The fourth case is that suggested by the noble Lord, Lord Coleraine. I refer to the interest of those with an unwritten licence. In my view the Committee is entitled to specific answers to those four points of which notice was given at least 10 minutes ago.

Baroness Blatch

I think that that was a rather fast 10 minutes; in fact, I do not think that such notice was given 10 minutes ago. However, many interesting points have been raised about specific categories. I believe that some of them would extend the scope wider than the Government would wish but, as with other amendments which we have discussed today, I shall read carefully what the noble Lord said and consider his remarks between now and the Report stage. Perhaps we could meet during that time to discuss these issues.

Lord McIntosh of Haringey

I am grateful to the Minister. I believe that we could make progress in the matter and that it would be in the interests of better legislation if we did so. I add the issue of criminalisation to the list of those matters which will undoubtedly grow and which I shall want to discuss with Ministers before the Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 had been withdrawn from the Marshalled List.]

[Amendment No. 30 not moved.]

Baroness Nicol moved Amendment No. 31: Page 9, line 12, after ("(a)") insert ("where a planning application has been submitted for the development within 28 days of the enforcement notice being served").

The noble Baroness said: Appeals against enforcement notices are frequently used as a means of delay because an appeal immediately suspends enforcement action. The Council for the Protection of Rural England, which supports this amendment, points out that 80 per cent. of enforcement notices are appealed against compared with 32 per cent. in respect of planning applications. Of that 80 per cent., 40 per cent. are ultimately withdrawn. There is obviously a great waste of the time of the local authority and of the Department of the Environment. That fact was confirmed by the Chief Planning Inspector in her report for 1986–87—what a comfort it is to be able to say "her" report rather than "his" report.

In 1987–88 the Department of the Environment estimated that the cost of enforcement appeal work was £2.3 million. The effect of the amendment would be to ensure that more decisions are made on the basis of a planning application rather than an enforcement appeal. That must be in the interests of the planning system in the long run; it should also reduce the appeal workload. I beg to move.

Baroness Blatch

We believe that this proposal would be difficult to operate satisfactorily in practice. The present right of appeal on planning grounds against an enforcement notice has operated satisfactorily since its introduction in 1960. An enforcement notice appeal also includes what is called a "deemed planning application", to which the noble Baroness referred, so that if planning permission is to be granted in the appeal decision it is granted on the basis of a planning application submitted to the Secretary of State instead of being submitted to the planning authority. A fee is payable to the Secretary of State for this application on the same basis as a planning application fee would be payable to the local authority for the development involved in the appeal. These provisions are logical and usually operate satisfactorily.

If an appellant who wishes to submit an appeal on ground (a) also had to submit a planning application to the local authority within the proposed 28-day time limit, it would be most confusing for everyone concerned with the appeal. Presumably the planning authority would be processing this application at the same time as my department was processing the appeal. The planning authority's decision might be given during the appeal process or it might not. In either event, the appellant would have to deal with both sets of proceedings simultaneously and would presumably want the appeal to be delayed if there was any chance that the planning authority would grant permission for the development. Any such delay is most unsatisfactory in any enforcement appeal. It is much better in practice for the question of a grant of planning permission to be dealt with as part and parcel of the enforcement appeal process, as at present. There is no disadvantage to the planning authority in the present procedure: it is always asked for its counter-representations to any appeal on ground (a) so that its views on whether permission ought to be granted for the development in the notice are taken into account in the appeal decision.

We are remedying that unsatisfactory situation by the provisions which are included in Clause 6(3). Subsection (3) inserts a new subsection (5A) in Section 177 of the 1990 Act. That new subsection (5A) effectively provides that, where an appeal is made on ground (a) and no "deemed planning application" fee is paid by the appellant within a specified period, the appeal on ground (a) and the deemed application are to lapse at the end of that period. We intend that period to be 28 days, coincidentally the same period of time as in the amendment. We believe that that remedy, which was recommended in the Carnwath Report, is a more effective and satisfactory means of dealing with that minor difficulty than the amendment would be. I hope the noble Baroness will not pursue the amendments.

8.30 p.m.

Baroness Nicol

I find it difficult to understand why the Minister believes that the present situation is in any way satisfactory. However, I should like to consider what she said about new subsection (5A). I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31A not moved.]

Lord Coleraine moved Amendment No. 32: Page 10, line 26, at end insert: ("(4C) Where in accordance with subsection (4A) above an order is made that an enforcement notice shall have effect, then if on final determination of the proceedings the enforcement notice is quashed, compensation may be awarded to the appellant for any damage or loss that has been incurred as a result of the said order." ").

The noble Lord said: This is an important amendment, but I am glad to be able to deal with it shortly at this stage. Under Section 289 of the 1990 Act, either the planning authority or the appellant may appeal on a point of law to the High Court in an enforcement notice appeal against the Secretary of State's decision. The Government's proposal is that where there is such an appeal to the High Court the court should have power to order the enforcement notice to be of no effect, to have effect, or to have partial effect pending a final determination of the proceedings and any subsequent re-hearing and determination by the Secretary of State.

The amendment proposes that should the High Court make an order that an enforcement notice should take effect, and should the appeal succeed and the enforcement notice be shown to be a nullity, then the appellant who will have been wrongly deprived of the use of his land, and possibly of his livelihood, during what may be a long period, should be compensated for the loss suffered during that period of deprivation. It is a simple matter of fairness. I beg to move.

Baroness Blatch

As some of your Lordships will have noticed, this is a complex situation which needs further examination because it also involves the proposed order-making powers of the High Court and the Court of Appeal. It requires consultation with my noble and learned friend the Lord Chancellor, and so at this stage I am unable to accept Amendment No. 32. I can consult my noble and learned friend the Lord Chancellor and perhaps even my noble friend between now and Report stage and report back.

Lord Coleraine

I should feel much happier were my noble friend able to indicate some general sympathy with what I propose in the amendment. Since I tabled the amendment I have become aware that it is, in a sense, defective in that the present procedures are not that the High Court may order the enforcement notice to take effect, but that, owing to a preceding amendment to the Bill, which will no doubt be passed, the onus is now on the appellant to apply to the High Court for the enforcement notice to be not enforced.

I can understand the reason for that, but it creates a certain hiatus between the date upon which the enforcement notice comes into force under the Government's proposals, and—

Baroness Blatch

I wonder whether I may intervene. I may be able to help my noble friend. I have a long explanation in response to the amendment. We have sympathy with the principle being pursued by the amendment. I propose to give my noble friend the full text of what would have been my response to discuss with his advisers. That may save time this evening. There would then be an opportunity to understand the technical difficulties and why we should like to meet the principle that is of concern to my noble friend.

Lord Coleraine

I am grateful to my noble friend for her offer. I should say just one thing about the position created by the Bill, which is that the provisions of Clause 6(2) are that the enforcement notice is to be of no effect until the appeal is withdrawn or: the expiry of the period within which a further appeal may be brought against the decision of the Secretary of State". I am sure that when my noble friend considers the general tenor of the amendment, she will take account of the fact that as things stand at the moment, as I read the Bill, the appellant will be criminalised between the date upon which the enforcement notice comes into effect under the new clause and the date when the appellant can appeal to the High Court, which will be later, and the date upon which that appeal is heard by the High Court, which will be considerably later. I am sure that my noble friend will take that point into account when she considers the whole picture. In view of her kind offer which I gratefully accept, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 33 had been withdrawn from the Marshaled List.]

Clause 6 agreed to.

Clause 31 [Appeal against enforcement notice]:

[Amendment No. 34 not moved.]

Clause 31 agreed to.

Clauses 7 and 32 agreed to.

Clause 8 [Offence where enforcement notice not complied with]:

Lord McIntosh of Haringey moved Amendment No. 35: Page 11, line 7, leave out second ("the").

The noble Lord said: I am absolutely determined to amend the Bill. If I am not allowed to have the amendment, I promise the Government that at some time which will not be specified my noble friend Lord Wilson of Rievaulx will appear on these Benches late in the evening and the Government will be defeated. If the Government will not accept the amendment, that threat will take effect from midnight Greenwich meantime, and at any time thereafter. I beg to move.

Lord Fraser of Carmyllie

In the face of that appalling threat, I give the noble Lord the clearest and most unequivocal of undertakings that the correction will be made when the Bill is next printed.

Lord McIntosh of Haringey

I shall speak to "storm in' Norman" and call off the strike.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 36: Page 11, line 15, leave out from ("offence") to end of line 19.

The noble and learned Lord said: This is a considerable grouping of amendments. Perhaps I can begin with Amendments Nos. 38 and 43 which add the words: for east period of 24 hours during which the breach continues", respectively subsections (2) (b) and (5) (b) of the new Section 179 for which Clause 8 provides. The amendments are similar to Amendment No. 10 which the noble Lord tabled to Clause 1 which provided for the contravention notice offence to apply to each period of 24 hours for which the failure continues.

We accept that the provisions of subsections (2) and (5) of Section 179 as they appear in the Bill are not entirely satisfactory. We consider that the Government's amendments to Clauses 8 and 33—that is Amendments Nos. 36, 42, 47 and 48—will result in fully effective offence provisions, ensuring that any offence under Section 179 may be charged by reference to any day or subsequent period of time. Where the offence continues, a person may be convicted of a second or subsequent offence by reference to any period of time following the preceding conviction.

Similarly, we think that this approach is preferable to the approach suggested in Amendment No. 37 by the noble Lord, Lord Coleraine. I hope that the Committee will accept that the Government's approach will provide for an effective further offence following a first offence.

Government Amendments Nos. 39, 40 and 41 are to aspects of the enforcement notice offence provisions in the new Section 179. Amendment No. 39 is to subsection (3) which provides a defence for an owner of land who is prosecuted for the offence of being in breach of the requirements of an enforcement notice.

As now drafted, this defence requires the person prosecuted, to show that he did everything in his power to secure compliance with the notice". We have concluded, on further consideration of this defence, that the words "everything in his power" impose too onerous a burden on the prosecuted person. The amendment therefore proposes to omit the words, "in his power" and to insert the words, he could be expected to do". Amendment No. 47A which the noble Lord, Lord Carmichael, has tabled, helpfully makes a parallel provision for the Scottish Clause 33. I am sure that he will be pleased to know that we welcome and accept the amendment.

Amendment No. 40 is to subsection (4) of the new Section 179 which provides for an offence where someone, who is the occupier of or has an interest in the enforcement notice land carries on any activity which is required by notice to cease. This amendment is to omit the words, is the occupier of or has and to insert has control of or". As now drafted, the reference in subsection (4) to the occupier of the enforcement notice land is not sufficiently wide in its scope to cater for the situation where someone who is responsible for the management of land—for example, a land agent who does not himself occupy the land—is nevertheless in control of any activity taking place on the land. The words to be inserted are intended to comprise occupiers of land, as distinct from owners, and anyone else who, as a matter of fact, has control over the land.

Amendment No. 41 is also to subsection (4) of the new Section 179 of the 1990 Act. As now drafted, subsection (4) requires that the person concerned, must not carry on any activity which is required by the [enforcement] notice to cease". This wording is not sufficiently wide in its scope to cater for the situation where a person does not carry on the activity himself but causes or permits his agent to do so. It would clearly be unsatisfactory if, in such circumstances, the planning authority were unable to prosecute that person. This amendment therefore adds the words, or cause or permit such an activity to be carried on at the end of subsection (4) so that the scope of the offence under this subsection is much more satisfactory. As the noble Lord, Lord Carmichael, may also have picked up, although he has not put down an amendment, the comparable amendment has not been made to Clause 33. However, I indicate to him that a parallel amendment will be made to Clause 33 at Report.

Amendments Nos. 44, 45 and 46 bear on the amount of the penalty. The first amendment would enable the court to decide that a higher penalty should be imposed for any subsequent offence. We appreciate that the amendments are intended to provide for the penalty to be imposed on a person convicted of an enforcement notice offence to be calculated in such a way that a person convicted loses any financial benefit which has accrued or appears likely to accrue to him as a result of the offence. While I understand what is proposed, nevertheless I consider it would be wrong to fetter the court's discretion to impose whatever financial penalty seems appropriate in a particular case.

I appreciate that the Carnwath Report recommended as part of Recommendation No. 13(i) that provision should be made for the prosecution's estimates of any financial benefit to be binding on the court unless disproved. Nevertheless, we do not think that in imposing an appropriate penalty on a convicted person the court should be bound by these provisions. Notwithstanding that, it clearly has wide powers to impose a greater penalty in the event of a second or further conviction. I beg to move.

8.45 p.m.

Lord McIntosh of Haringey

In my intervention on this group, I wish to speak only to Amendments Nos. 44, 45 and 46. As will be evident, Amendments Nos. 38 and 43 will fall when the Government's amendments are carried. We are in favour of the government amendments which clear matters up concerning persistent, continuing offences, in just the same way as the earlier amendments did. We are grateful for that.

I am not happy with the replies of the noble and learned Lord the Lord Advocate on my Amendments Nos. 44, 45 and 46. The replies were to a speech that I had not yet made, but that is the way in which the groupings work. The noble and learned Lord rests his case on the need to leave the courts free to impose such penalties as they think fit. The difficulty has been that in the past penalties for infringements of planning law have commonly been too low. They have made planning law a laughing stock and made it possible and justifiable for people to continue to breach planning laws and get away with it financially, even though they may be convicted.

Amendment No. 44 provides that the courts should impose greater penalties on continuing offences. I should have thought that the Government's amendments already tended in that direction and that the Government would have welcomed this clear indication in primary legislation that continuing offences were worse than an initial offence. They ought to be penalised accordingly.

On the important issue of making the punishment fit the financial benefit of the crime, rather than using the vague words, "have regard to" we should say "include in the amount of the penalty the financial benefit which would accrue". Again, this may be a restriction on the flexibility of the courts but I should have thought it was an entirely desirable restriction working only in the direction of improved enforcement. The Government, in line with their thinking, ought to have welcomed it.

Finally, Amendment No. 46 refers to the way in which the calculation should be made of the financial benefit due which has to be calculated. Here again, surely the onus must be on the applicant, the person who is being fined for non-compliance, to disprove other estimates of his financial benefit, otherwise he will simply put up absurd estimates. A great deal of court and public time and therefore public expense will be wasted on trying to disprove his assertions. It must be for him—or perhaps I should say "it", but I assume that these non-compliers are largely men so I think that we can abandon anti-sexism so far as to say that the bulk of breaches of planning law will be incurred by men. It is for the offender to disprove the case made by independent and objective authority. I hope that the Government will reconsider these three amendments.

Lord Fraser of Carmyllie

May I reply briefly to the noble Lord? If he looks at Amendment No. 46, I think he will appreciate the burden which it might impose upon somebody to bring these proceedings. Someone who understands perfectly well that what is being done in breach of the planning law nevertheless may have little or no idea of what might be the value of the hotel built or the amount of profit which it might be making but that would effectively have to be considered. It is a much better idea to leave the matter in relation to the provision that we have in the Bill, that where there is an amount of a fine to be determined the court shall have regard to the financial benefit which has accrued or appears likely to accrue. It seems likely that that allows far greater flexibility than the provision which the noble Lord proposes would allow.

Lord McIntosh of Haringey

Before we leave this matter, I should remind the noble and learned Lord the Lord Advocate that these are recommendations made by the Carnwath Report. If this is part of the package, may we be given specific reasons why we are departing from the package?

On Question, amendment agreed to.

[Amendment No. 37 not moved.]

The Deputy Chairman of Committees (Lord Ampthill)

I cannot call Amendment No. 38 as it has been pre-empted.

[Amendment No. 38 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 39: Page 11, line 22, leave out ("in his power") and insert ("he could be expected to do").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 40 to 42: Page 11, line 24, leave out ("is the occupier of or has") and insert ("has control of or"). Page 11, line 27, at end insert ("or cause or permit such an activity to be carried on"). Page 11, line 31, leave out from ("offence") to end of line 34 and insert: ("(5A) An offence under subsection (2) or (5) may be charged by reference to any day or longer period of time and a persor may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence.").

On Question, amendments agreed to.

[Amendments Nos. 43 to 46 not moved.]

Clause 8, as amended, agreed to.

Clause 33 [Offence where enforcement notice not complied with]:

Lord Fraser of Carmyllie moved Amendment No. 47: Page 39, line 34, leave out from ("offence") to end of line 38.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 47A: Page 39, line 41, leave out ("in his power") and insert ("he could be expected to do").

The noble Lord said: I beg to move.

Lord McIntosh of Haringey

It is not a matter of material concern, but Amendment No. 43 was ruled out by Amendment No. 42; Amendments Nos. 44, 45 and 46 were not. I think that I should be given the chance not to move them.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 48: Page 40 line 4, leave out from ("offence") to end of line 7 and insert: ("(5A) An offence under subsection (2) or (5) of this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence. ').

On Question, amendment agreed to.

Clause 33, as amended, agreed to.

Clause 9 [Stop notices]:

Lord Coleraine moved Amendment No. 49: Page 12, line 25, leave out ("four years") and insert ("twelve months").

The noble Lord said: In this amendment I see that I am knocking against the Carnwath package, but on a previous occasion I was asking the Government why they wine departing from it. Clause 9 deals with stop notices and subsection (5), which is to form part of Section 183 of the principal Act, provides that, A stop notice shall not prohibit the carrying out of any activity if the activity has been carried out … for a period of more than four years ending with the service of the notice".

I know that the finding of the Carnwath Report was based on the difficulty that some local authorities may have in discovering whether a change of use has taken place. But the view was put by the Law Society in reply to the consultation paper, and I still think that there is some force in it, that if a local authority feels that the unlawful use activity is important enough to have a stop notice imposed upon it, it should be able to impose a stop notice within a year and not wait for the full four years to expire before serving the stop notice. I beg to move.

Lord Fraser of Carmyllie

The period of four years to which the noble Lord objects was a recommendation in the Carnwath Report. In view of the way in which I have quietly set aside an earlier recommendation of the Carnwath Report, that may not be the most compelling of reasons. Nevertheless we think this one is justified as a means of enabling a stop notice to prohibit an activity which is causing serious environmental harm. What is considered especially useful is the case where the use of land intensifies suddenly, perhaps after a considerable period in which it was not harmful.

The period of one year, which the noble Lord prefers, has been shown by the experience of the present provisions which are restricted to one year to be too short in some cases. It is for that reason that the period of time has been lengthened to four years. In these circumstances I consider against the background of the existing provision that what is proposed in the Bill is appropriate.

Lord Coleraine

It seems to me that probably there are cases where four years would be appropriate and there are certainly cases where, as my learned and noble friend has said, the use intensifies and it is only after a year or two that it becomes unacceptable. I shall take this amendment away and consider with my advisers whether there is some way in which we can provide one period for one case and a different period for another. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 50: Page 12, leave out lines 36 to 40.

The noble Lord said: In moving Amendment No. 50, I should like to speak also to Amendment No. 53. As the noble Lord, Lord Coleraine, has said, we are now on the issue of stop notices, which are the most powerful instruments available to local authorities. They are there to deal with particularly severe cases where enforcement is necessary. They are provided with no grounds for appeal and the fines for breaching a stop notice can be unlimited. There can be no doubt that we and the Government treat stop notices with the utmost seriousness.

So it is very difficult to understand why in this clause, and in new subsection (3)(a) the Government should provide that the date of implementation of a stop notice must be not earlier than three days after the date when the notice is served. After all, in three days a determined miscreant can do a good deal of damage.

When I referred earlier to the suggestion of my noble friend Lady Hollis that we should look at particular kinds of offence which are irreversible, three days is quite long enough to do irreversible damage which no implementation of a stop notice could ever put right and for which no fine, however unlimited, would be appropriate. It does not have to be enforced in every case; there is no reason why a local authority should make every stop notice enforceable immediately. But we ought to have the possibility that a stop notice which is used only in the last resort can take effect immediately in order, for example, that a building shall not be demolished, trees shall not be cut down or irreparable damage shall not be done to a building or to land by development which can never be undone.

I cannot believe that the Government, having provided for stop notices in this way, having provided that stop notices shall not have the right of appeal, having provided that there shall be unlimited fines, can be serious about stop notices unless they at least make it possible in extreme circumstances for them to have immediate effect. I do not believe that the public would understand what a stop notice means if it says not "stop", but "stop in three days from now".

That cannot be in accordance with a common understanding of what proper enforcement of planning law should constitute. I beg to move.

9 p.m.

Lord Fraser of Carmyllie

On Amendment No. 50, we share the noble Lord's wish to enable the planning authority to bring a stop notice into effect before the three—day waiting period for which the present Section 184(3) of the 1990 Act provides. Where we differ from him is in preferring not to go as far as his amendment proposes by giving the planning authority complete discretion in bringing any stop notice into force on whatever date it wishes.

As the noble Lord appreciates, a stop notice is draconian in its effect and there is no appeal against it to the Secretary of State. If a person contravenes, or causes or permits a contravention of, a stop notice, there is an immediate offence, under Section 187 of the 1990 Act, for which we propose, later in Clause 9, to increase the maximum summary penalty to £20,000. Because of the severity of these provisions, we think there must be safeguards to ensure that a stop notice is only brought into force earlier than three days after it is served on someone when there are special circumstances to justify an earlier date.

The noble Lord stopped short of referring to special reasons. However, we allow for special reasons for specifying an earlier date. The noble Lord laid stress on the test of irreversibility. That seems to me to be just such a special circumstance where it might be appropriate for a local authority to impose a stop notice earlier than the three-day period.

The Government's amendment to section 184(3) of the 1990 Act closely follows Recommendation No. 10(III) in the Carnwath Report, where Mr. Carnwath was clearly concerned that the planning authority should have discretion to bring a stop notice into force immediately, but subject to what he called "special reasons justifying it".

With that explanation, I hope the noble Lord will accept that a safeguard on these lines is essential for any recipient of a stop notice. I hope he will appreciate that what concerns him is provided for, but the provision in the Bill is not so draconian as what he would achieve by his amendment.

Amendment No. 53 is similar to previous amendments that the noble Lord tabled in Clauses 1, 2 and 8 to apply the offence provisions of those clauses to each period of 24 hours for which a failure or contravention continues. As with the previous government amendments to the offence provisions in Clauses 1, 2 and 8, we think that government Amendments Nos. 51 and 54 will result in fully effective provisions applying in the case where a second, or subsequent, stop notice offence occurs, so that the recipient can be prosecuted and convicted by reference to any period of time following the preceding conviction.

Lord McIntosh of Haringey

I am grateful for that reply. I recognise that the paragraph which we propose to remove provides for special reasons. However, if one provides for special reasons, one always raises the argument about what constitutes a special reason. If there is no appeal, there could be some difficulty if a local planning authority is conscientious about not using stop notices except in the most extreme circumstances; it may find that all those extreme circumstances give rise to special reasons. What occasions have no special reasons? One could find people applying for judicial review on the grounds that a given local authority has always cited special reasons when applying for stop notices. It is difficult to judge whether a stop notice is being used as a last resort and whether a degree of flexibility is being maintained. I appreciate the arguments that the noble and learned Lord the Lord Advocate has advanced. This is not a matter on which I wish to seek the opinion of the Committee. The noble and learned Lord is quite right to say that the provisions of Amendment No. 53 are already dealt with by government amendments on similar lines. I should have pointed that out myself. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

Before calling Amendment No. 51, I should remind the noble Lord, Lord McIntosh, that I shall be unable to call Amendment No. 53, standing in his name, if Amendment No. 51 is agreed to.

Lord Fraser of Carmyllie moved Amendment No. 51 Page 13, line 13, leave out from ("offence") to ("References") in line 17 and insert: ("(1A) An offence under this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this section by reference to any period of time following the preceding conviction for such an offence. (1B)").

The noble and learned Lord said: In replying to the previous amendments, I have already made some reference to Amendments Nos. 51 and 54. The drafting of these amendments closely follows the approach which the Committee has already considered in corresponding amendments to the offence provisions in Clauses 1, 2, 8, 27, 28 and 33 of the Bill. In each case, the new subsection removes any doubt that the planning authority, when it lays an information in the court for a stop notice offence, may charge that the offence occurred on a particular day, or during any longer period of time during which the person prosecuted has allegedly contravened the prohibition in a stop notice. The new subsection also provides that, following conviction of a first offence, a person may be convicted of a second offence, or subsequent offences, by reference to any period of time following the preceding conviction for such an offence. I beg to move.

On Question, amendment agreed to.

[Amendment No. 52 had been withdrawn from the Marshalled List.]

[Amendment No. 53 not moved.]

Clause 9, as amended, agreed to.

Clause 34 [Stop notices]:

Lord Fraser of Carmyllie moved Amendment No. 54: Page 41, line 17, leave out from ("offence") to end of line 20 and insert: ("() An offence under this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this section by reference to any period of time following the preceding conviction for such an offence.").

On Question, amendment agreed to.

Clause 34, as amended, agreed to.

Clause 10 [Certificate of lawful use or development]:

[Amendment No. 54A not moved.]

Baroness Blatch moved Amendment No. 55: Page 14, line 8, after ("contravention") insert ("of").

The noble Baroness said: In moving Amendment No. 55, I wish to speak also to Amendments Nos. 64, 66, 67 and 67A to 67F. Amendment No. 64 stands in my name. Amendment No. 67 stands in the name of my noble and learned friend the Lord Advocate, while Amendments Nos. 67A to 67F stand in the name of the noble Lord, Lord Carmichael of Kelvingrove.

Amendments Nos. 55, 64 and 67 correct textual errors in the published Bill. Amendment No. 55, in Clause 10, on page 14 at line 8, is to insert the word "of" after "contravention" in that line. No amendment is needed in the corresponding Scottish provision, in Clause 35, which has been printed correctly.

Amendments Nos. 64 and 67 are in Clause 10, on page 15 at line 3; and in Clause 35, on page 43 at line 20. They correct a mistaken reference, in each case, to the provisions of Section 35(2)(a) of the Environmental Protection Act 1990. The correct reference is to Section 36(2)(a).

Amendment No. 66 in the name of the noble Lord, Lord Ross, would insert a new subsection, after subsection (3), in new Section 193 of the 1990 Act, which specifies supplementary provisions applicable to the new procedure for applying to the local planning authority for a certificate of lawfulness of existing or proposed use or development, in new Sections 191 and 192.

The purpose of this amendment is to apply the provisions, in Sections 78 and 79 of the 1990 Act, for an appeal to the Secretary of State against a planning authority's decision on a planning application, to the planning authority's determination on the new application for a certificate. We think there is no need for this amendment because provision is made elsewhere in the Bill for the present "established use" certificate appeal procedures (which are in Sections 195 and 196 of the 1990 Act) to be applied, with suitable modifications, to decisions on applications for the new certificate of lawful use or development. This is achieved by the provisions of paragraphs 19 and 20 of Schedule 6 to the Bill. (on page 99, at lines 9 to 26 inclusive). We accept the noble Lord's premise that a right of appeal to my right honourable friend the Secretary of State is necessary, and it has been duly provided. With that assurance, I hope the noble Lord will withdraw his amendment.

Amendments Nos. 67A, 67C, 67D and 67E in the name of the noble Lord, Lord Carmichael, to Clause 35 seek to remove any doubt about who may make the regulations which will be necessary to operate the new certification procedure and to provide that any regulations made be subject to parliamentary scrutiny. However, the existing Section 273 of the 1972 Act in Scotland, which is concerned with regulations and orders made under that Act, quite clearly provides that it is the Secretary of State who may make regulations, and the proposed insertions aimed at clarifying this are not necessary.

As to Amendment No. 67B, while the noble Lord, Lord Carmichael, may feel that Clause 35 as drafted gives planning authorities too free a hand in such matters, I would assure him that the provision is in similar terms to that which it replaces—paragraph 1 of Schedule 12 to the 1972 Act—and that there is no evidence to suggest after all this time that the existing arrangements give rise to problems of the kind envisaged by the Law Society of Scotland.

As to the suggestion in Amendment No. 67F of an extra subsection requiring regulations to be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, I can again assure the noble Lord that Section 273 of the 1972 Act provides in subsection (2) for this safeguard, and therefore that this addition is not necessary. I hope that the noble Lord is reassured by my explanation and that he will not press these amendments.

Lord Carmichael of Kelvingrove

Whether I am reassured or not, I am impressed by the reasons given. It appears as though the question of the Secretary of State making regulations is covered well enough. The planning authorities have been in existence for some time under the previous Acts and there has been little friction. As the noble Baroness said, this is something about which the Law Society was concerned. I can hardly believe that it was concerned about something unless it had some experience of it.

While I am willing to withdraw the amendments on this occasion, I am sure that the noble Baroness will realise that I shall need to consult with some members of the Law Society about the full statement she made in her speech. I speak about Amendments Nos. 67A, 67B, and 67C to 67F. Parliamentary procedure is always a hoary old question. We wanted powers in order that the Secretary of State's decisions or proposals could be challenged in the House. However, the matter is too big to go into without having advice from others. In the meantime, I thank the noble Baroness for her explanation at this point.

The Deputy Chairman of Committees

The noble Lord rose rather briskly and I had not said that the noble Baroness had moved at page 14, line 8, after ("contravention") insert ("of").

Lord Ross of Newport

I am grateful to the noble Baroness because she has supplied us with a great deal of information. I cannot say that I understand it all. I am sure that she spent the whole of Christmas studying this Bill. It is extremely complicated. It amends the Town and Country Planning Act 1990, which itself was a measure that brought all the previous Acts together. Therefore, I found it complicated.

The noble Baroness sent us a brief on, I think, 6th January. This is where we are changing established use certificates to certificates of lawful use. I think there are going to be people who have an established use certificate who will have, I think, six months or a year to apply for the alternative. It says on the brief, and I think I picked it up in what the noble Baroness said, that in any case someone who wished to appeal from a local planning authority when in fact they were not given the certificate of lawful use could appeal under a different section. They could appeal against it on the amending ground (d) at Section 174(2) of the 1990 Act.

I am not going to complicate matters, but I think the noble Baroness covered the ground about which I was worried. It seemed to me wrong that a right of appeal possibly from a change from this particular form of certificate to another form of certificate might leave some people high and dry, which would not be right. However, I am reassured—and I shall read carefully what the noble Baroness said—that if necessary there can be a right of appeal to the Secretary of State. That still holds, and therefore I accept totally what the noble Baroness reported to the Committee.

On Question, amendment agreed to.

[Amendment No. 55A not moved.]

Baroness Hollis of Heigham moved Amendment No. 56: Page 14, line 24, after ("lawfulness") insert ("either").

The noble Baroness said: In moving this amendment I should like to speak also to Amendments Nos. 57, 58, 60 and 62. These amendments are clustered together. Obviously, the point of Clause 10 is that it retrospectively validates an activity, and we think it would be useful for local authorities to have discretion as to whether they should date it from the date of application or the date of determination in those rare circumstances where there is a change in situation between those two events: for example, the passing of a general development order. This is a modest change but a useful addition to discretion. We hope that the Minister agrees to it. I beg to move.

9.15 p.m.

Baroness Blatch

The effect of these two amendments would be to give the local planning authority the discretion to base their determination on whether to grant one of the new certificates on the circumstances either at the time when the application is made or at the time of their determination. We think these amendments should not be made in subsection (4) because they will introduce too much uncertainty into the decision-making process for the new certificate. The onus of providing the authority with relevant information to justify the grant of a certificate is firmly placed upon the applicant by the present provisions of subsection (4). We think the applicant should have to do this by reference to the status of the land and the activities then taking place on it when he submits his application. If, as these two amendments propose, the planning authority could also consider the matter in relation to the circumstances of the land at the later date of its determination, it would be bound to seek further information from the applicant about any change which might have taken place in the meantime.

We think it is essential to have only one date for this purpose, in the interests of all concerned with the application, and that it should be the application date. If the circumstances on the land change in the meantime, it will be up to the applicant to decide whether he wishes to pursue his application, bearing in mind that he may obtain an outdated certificate if the original application does not reflect the current circumstances.

We think that the same objections apply to Amendment No. 60.

Amendment No. 62 would add the words indicated in the next paragraph—paragraph (d)—of subsection (5) of the new Section 191, so that the amended paragraph would provide as follows: (d) specify the date of the application for, or, as the case may be, the determination of the certificate", The amendment follows from one of the noble Lord's earlier amendments (Amendment No. 57) to subsection (4) of Section 191, where he sought to introduce a reference to the time of the planning authority's determination of an application for a certificate, as an alternative to the circumstances of the land al the time of the application.

I have explained in response to the earlier amendment why we do not think this alternative date would be satisfactory in practice. It follows that this amendment would also be unsatisfactory for the same reasons.

I hope that the noble Baroness will not press these amendments.

Baroness Hollis of Heigham

I thank the noble Baroness for that reply, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 57 and 58 not moved.]

Baroness Hollis of Heigham moved Amendment No. 59: Page 14, line 28, after ("shall") insert ("except in the circumstances specified in subsection (4A) below").

The noble Baroness said: I should like to brigade Amendments Nos. 59 and 61 together, and we hope that the Government can accept this pair. Under the old Section 52, now the new Section 106 under the 1990 Act, a local authority and a developer may mutually agree planning gain as part of development, subject to any of the provisions of Clause 12: for example, open space or the provision of a creche. But such planning gain may occasionally be vitiated by an adjacent building, or adjacent activity, of a third party which had not hitherto been brought within the planning process, possibly because it was literally invisible; it might be behind a screening wall. That activity might be time-expired and that third party might be seeking a lawful use certificate which, if it were granted, would nullify the planning gain. These two amendments will protect the local authority in that situation so that the greater public interest—that is, the planning gain—is not undermined by a lawful use certificate of an adjacent third party. Therefore, we hope that the Minister can give local authorities that additional protection. I beg to move.

Baroness Blatch

Before I respond to this amendment, perhaps I may ask whether the noble Baroness is including Amendment No. 63 in the group of amendments.

Baroness Hollis of Heigham

I am very happy to do so. That amendment would offer compensation where the established or lawful use is other than on grounds of being time-expired.

Baroness Blatch

I thank the noble Baroness for that clarification. Amendment No. 61, which goes with Amendment No. 59 tabled by the noble Lord, Lord McIntosh, an amendment to subsection (4), would insert a new subsection (4A) in Section 191 of the 1990 Act. The amendment would create an exception to the requirement for the planning authority to issue a lawful development certificate where the circumstances would otherwise justify it. The planning authority would be enabled, by virtue of this new subsection (4A) to refuse the certificate under subsection (4) where it is or would be in breach of any undertaking or other non-contractual undertaking falling within Section 106 of the 1990 Act.

We understand the reasons why the noble Lord tabled the amendment. It would clearly be unsatisfactory if the grant of a lawful development certificate could override the terms of an agreement or undertaking under Section 106 of the 1990 Act. If that were so, it would certainly be desirable to remedy the problem. But there is no suggestion in the new Section 191 that that might happen. The two procedures will operate quite separately.

If a certificate is granted for an activity which is prevented or restricted by an agreement under Section 106, the grant of that certificate will not authorise the prevented or restricted activity and the agreement will remain enforceable between the parties to it regardless of the existence of a new certificate. If the agreement under Section 106 is between the planning authority and another party who has not been concerned with the application for a certificate under Section 191, the authority may still enforce the terms of that agreement against the other party or against the successors in title to that other party.

For those reasons, we see no need to insert the proposed subsection (4A) in the new Section 191. I hope that the noble Baroness will not press the matter further.

Turning to Amendment No. 63, this amendment is directly consequential on Amendment No. 61. I have explained the reasons why we cannot accept Amendment No. 61. It follows that if the proposed new subsection (4A) is not inserted in new Section 191, new subsections (5A) and (5B), would be inappropriate.

Baroness Hollis of Heigham

I thank the Minister for that reply. The legal advice that she is offering to the House differs from the legal advice that we have received in terms of whether, for example, a Section 106 agreement between two parties can or cannot be overridden by a lawful use certificate with a third party.

If the legal advice which the Minister has had is correct, that meets our problem. However, we have received different advice. Perhaps this matter can be considered further between now and Report stage. If in any sense the advice that she has received needs to be corrected, then I am sure that we both recognise that we have a problem on our hands. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 60 to 63 not moved.]

Baroness Blatch moved Amendment No. 64: Page 15, line 3, leave out ("35") and insert ("36").

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 65: Page 15, line 40, at end insert: ("(1A) An application for a certificate under section 191 or 192 of this Act shall be accompanied by such fee as the Secretary of State may by regulations prescribe, after consultation with such persons representative of local planning authorities as appear to it to be concerned.").

The noble Lord said: This amendment seeks to discover how serious the Government are about their intention to ensure that fees for planning work should gradually rise to meet the costs of the planning service.

Within the past few weeks this Chamber has debated orders which provide for a substantial increase in fees—a 20 per cent. increase in some planning fees, I believe. In moving those orders, the Minister said that the Government looked forward to a time when the cost of the planning service would very largely be covered by fees, although that time was some way off.

It does not appear to be the case that there is adequate provision for fees for applications for certificates of lawful use and lawful development under Sections 191 or 192 of the principal Act. With this amendment we seek to find out the Government's intentions. Clearly applications for certificates of lawful use and development cost local planning authorities considerable amounts of money. If the Government are serious about covering costs with fees, surely they ought to provide for fees for those applications as well as for other types of planning applications. I beg to move.

Lord Ross of Newport

I am horrified by the proposal and totally opposed to the introduction of planning fees. It is wrong to say that people with an existing use certificate, through no fault of their own and as a result of legislation passed through this House, must now obtain a lawful use certificate and pay a fee for doing so. That is totally wrong, and I hope that the Government are not intending to impose a fee upon them.

Baroness Blatch

We accept that planning authorities should be enabled to charge a fee for the administrative cost involved in dealing with applications for the new certificates. On 8th January my department circulated a consultation paper canvassing proposals about how the new certificates would be brought into operation if Clause 10 were enacted. The consultation paper has been sent to all the associations representing local authorities, the professional and amenity bodies interested in planning control and many other bodies. We shall consider their responses most carefully. I have also sent a copy of the consultation paper to the noble Lord and other Members participating in this debate. A copy has also been placed in the Library of the House. I shall be glad to consider any comments made by Members of the Committee.

One of the proposals in the consultation paper is for a system of charges which applicants for a certificate would have to pay at the time that they made their application to the planning authority. We propose that the charges should be set at a level intended to cover the overall administrative cost of the service. We welcome comments on this proposal. We do not believe that an additional regulation-making power is needed for this purpose because there is already a suitable power in Section 303 of the 1990 Act. Section 303(1) enables the Secretary of State, by regulations, to make such provision as he thinks fit for a payment of a fee of the prescribed amount to a local planning authority in respect of an application to them under the planning Acts for any permission, consent, approval, determination or certificate. This power is currently used to prescribe planning application fees. We appreciate that the noble Lord might prefer to see a statutory obligation to consult local planning authorities' representatives included in the new Section 193 but we do not think that this is essential. My department is careful to consult not just the local authorities' associations but a wide range of other interested organisations about the new planning and enforcement proposals. There is no need for a statutory obligation in this matter. I hope that the amendment will not be pressed.

Lord Ross of Newport

I am disappointed with that response. I wonder whether the noble Lord, Lord McIntosh, wants to carry out his suggestion. He appears to be going into market forces. Let us suppose that I have had the use of some land since before 1964 and I have an existing use certificate. If the Government introduced legislation under the Bill obliging me now to obtain a lawful use certificate in order to carry on what I have been doing for the past 30 years, it cannot be right or equitable to impose a fee for that. I realise that the matter has been submitted for consultation; but that imposition would be totally wrong and the Committee should not accept it.

Baroness Blatch

I hope that Members of the Committee will respond and perhaps the noble Lord, Lord Ross, will wish to do so vigorously.

Lord McIntosh of Haringey

I understand the point made by the noble Lord, Lord Ross. I hope that he understands that I sought to obtain a clearer idea of the Government's intentions rather than to pursue an argument in favour of higher fees. I do not and never have supported the view that planning fees should cover all the costs of a planning service. However, that was the Government's view and there appeared to be a gap in their provisions about which I sought to find out more.

I am grateful to the Minister for sending me the consultation document. This is a curious way of producing legislation. Consultation documents have been issued between Second Reading and the Committee stage with such timing that the responses cannot be considered by Parliament. Instead, the Minister merely gives a holding answer by saying that although the Bill is before Parliament, the Government do not propose to take a view on the matter until they have the results of the consultation documents. Surely a consultation document should go out and the consultation period should be completed before the Bill is published. The results should be available to Parliament when it is making up its mind as to whether the Government's proposals are correct. As I said earlier, it is not a question of this Bill being brought forward in a great hurry. It has been in preparation for nearly two years. There is no good reason why that consultation should not have taken place and the results made available in time for the matter to be considered in Committee with the advantage of the full responses to the consultation.

Although we are grateful for being given copies of the consultation document, I suggest that that is not adequate for those concerned with planning laws—local authority associations, professionals and representatives of individuals affected by planning law. It is the job of Members of Parliament and noble Lords to look at amendments and legislation which have been prepared with the best available information from those expert in the field as to what are the likely effects.

The result of this curious timing presented to us is that we do not have an opportunity to consider adequately what should be the fees. I believe that that is a quite unsatisfactory response to a probing amendment and we may well have to return to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 66 not moved.]

Clause 10, as amended, agreed to.

Clause 35 [Certificate of lawful use or development]:

9.30 p.m.

Lord Fraser of Carmyllie moved Amendment No. 67: Page 43, line 20, leave out ("35") and insert ("36").

On Question, amendment agreed to.

[Amendments Nos. 67A to 67F not moved.]

Clause 35, as amended, agreed to.

Lord Fraser of Carmyllie moved Amendment No. 68: After Clause 35, insert the following new clause:

Rights of entry

(" .—(1) After section 91 of the 1972 Act there is inserted

"Rights of entry for enforcement purposes

Right to enter without warrant.

91A.—(1) Any person duly authorised in writing by a planning authority may at any reasonable hour enter any land—

1. (a) to ascertain whether there is or has been any breach of planning control on the land;
2. (b) to determine whether any of the powers conferred on a planning authority by sections 84 to 91 or 100 of this Act should be exercised;
3. (c) to determine how any such power should be exercised;
4. (d) to ascertain whether there has been compliance with any requirement imposed as a result of any such power having been exercised,

if there are reasonable grounds for entering the land then for the purpose in question.

(2) Any person duly authorised in writing by the Secretary of State may at any reasonable hour enter any la ad to determine whether an enforcement notice should be issued in respect of the land.

(3) The Secretary of State shall not so authorise any person without consulting the planning authority.

(4) Admission to any building used as a dwelling-house shall not be demanded as of right by virtue of subsection (1) or (2) of this section unless 24 hours' notice of the intended entry has been given to the occupier of the building.

Right to enter under warrant.

91B.—(1) If it is shown to the satisfaction of a justice of the peace on information on oath—

1. (a) that there are reasonable grounds for entering any land for any of the purposes mentioned in section 91A(1) or (2) of this Act; and
2. (b) that—
1. (i) admission to the land has been refused, or a refusal is reasonably apprehended; or
2. (ii) the case is one of urgency,

the justice may issue a warrant authorising any person duly authorised in writing to enter the land.

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

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

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

Rights of entry: supplementary provisions.

91C.—(1) A person authorised to enter any land in pursuance of a right of entry conferred under or by virtue of section 91A or 91B of this Act (referred to in this section as "a right of entry"—

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

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

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

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

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

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

The noble and learned Lord said: This amendment inserts a new clause for Scotland which parallels the provisions in Clause 11 for England and Wales. It replaces the existing Clause 36 of the Bill which in due course will be withdrawn. It is intended to simplify the drafting of the right of entry provisions.

The clause gives effect to recommendation No. 1 in the Carnwath Report; namely, that what is now Section 265 of the 1972 Act should be amended to allow entry on any land at all reasonable hours on production of appropriate authority for the purpose of investigating any alleged breach on that land or on immediately adjoining land for determining the nature of any remedial action or generally for the purpose of the exercise of the authority's enforcement functions.

We believe that this clause provides adequate powers to enable authorities to discharge their enforcement functions efficiently on the basis of reliable information. It also —and this is very important—provides adequate and necessary safeguards for the citizen who rightly resents bureaucratic snooping into his private life.

I shall speak also to Amendment No. 132, which makes changes to the Bill that are consequential upon the withdrawal of Clause 36 and the insertion of the new clause to which I have just made reference.

A fairly substantial number of amendments have been grouped together and perhaps I could turn to Amendments Nos. 69, 70 and 71 in the name of the noble Lord, Lord McIntosh. They make minor but significant changes which I regret we cannot accept. Nobody should have to submit to intrusion on his or his family's privacy without adequate safeguards. If we accepted Amendment No. 69, that would limit those safeguards to the situation where no other use, apart from dwelling-house use, is taking place in the building.

We take the view that the safeguards should apply equally when part of a building is being used as a dwelling house. We do not consider that in practice that will be a serious obstacle to planning authorities in gaining entry to buildings for enforcement purposes even where, for example, there is a flat in an office block which is the only dwelling in use.

While we appreciate that Amendment No. 70 appears to assume that there would be a person in the building who had been authorised by the occupier to allow an authorised officer to enter it for enforcement purposes, I am bound to say that I do not understand who is likely to be such an authorised person. In any event, I consider that it should always be to the occupier of the building that the notice of intended entry should be given and not just any authorised person.

Perhaps I may turn to Amendment No. 71. We are reluctant to omit the words suggested by the amendment at subsection 196B, paragraph 9(b) (ii), the case is one of urgency". The Carnworth Report recommended that the rights of entry provisions should be modelled on those provisions in Section 95 of the Building Act 1984. Section 95(4) of that Act includes a specific reference to the situation where the case is one of urgency. In that sense the new power is already precedented by the Act to which Mr. Carnworth referred. It will have been used by local authorities for the purposes of the 1984 Act. Accordingly it would seem apt to retain that provision.

I turn to Amendment No. 72, which I assume my noble friend Lord Stanley will be moving. That would also modify the right of entry on to land for enforcement purposes. It would require an authorised person, in the case of land which is used for agricultural purposes, to consult the Ministry of Agriculture before entering any such land to ascertain whether any order is in force under either the Animal Health Act 1981 or the Plant Health Act 1967 in respect of that land.

I entirely accept that the farming community and the NFU are rightly concerned to ensure that everything possible is done to minimise the risk of spreading communicable disease to animals or plants by anyone who is authorised to enter agricultural land for enforcement purposes. Amendment No. 72 has been carefully considered. Our conclusion is that it is not necessary. We can achieve my noble friend's laudable purpose by an alternative means.

If the present provisions of Clause 11 are enacted, we intend to issue a circular to all planning authorities giving guidance about how right of entry should be exercised when any agricultural land is involved. We shall advise authorities that before any authorised person intends to enter agricultural land they should consult the divisional officer of the Ministry of Agriculture, Fisheries and Food, or the comparable officer in Scotland, regarding whether any restrictions relating to animal or plant health are in force. Planning authorities will be advised that any such restrictions must be complied with at all times, and that any failure to observe them may result in serious damage to livestock or crops. We believe that that administrative procedure will provide the very safeguard that my noble friend rightly seeks.

His second amendment would add the words "or property" after "land" in the first line of paragraph (c) of subsection 196C. Again I sympathise with my noble friend's intentions. However, our conclusion is that this amendment too is unnecessary. The need for the provision of compensation arises because, where damage is caused in the proper exercise of a statutory power, a claim for damages in deed or tort could be defeated by the defence of the statutory authority. While damage might be caused to land which includes buildings in the proper exercise of a right of entry, we believe it improbable that damage to other property, would be so caused. Thus there is a need for a statutory provision for compensation for damage to land when a claim in common law might be defeated by a defence of statutory authority. In the case of damage to other property where a claim at common law could be expected to succeed, we believe that there is no need.

While I understand my noble friend's concern in tabling these amendments, I hope, in view of what I have indicated, that in due course he will consider that there is no need to press them.

Lord McIntosh of Haringey

In dealing with my Amendments Nos. 69, 70 and 71, the noble and learned Lord the Lord Advocate has sought to suggest that we are proposing to extend the right of entry in an unacceptable way which would be in conflict with civil liberties. He should refer to the Carnwath Report before suggesting that. He would then realise how modest and sensible our amendments are. In his report Mr. Carnwath said that local authorities should be given rights of access to, any land, at all reasonable hours on production of appropriate authority, for the purposes of investigating any alleged breach on that land or on immediately adjoining land, for determining the nature of any remedial action, or generally for the purpose of the exercise of the authority's enforcement functions". That is a very wide-ranging right of entry. I am not surprised that the Government shied away from implementing that in full and in the words used by Mr. Carnwath. We are not suggesting that the Government should. We are not suggesting that there should be a breach of civil liberties, which we believe is implied in Mr. Carnwath's suggestions.

However, there is the possibility, even for dwelling houses, of an inadequate right of entry. Our very modest Amendments Nos. 69, 70 and 71 seek to improve the provision. Amendment No. 69 introduces the word "solely" after the word "used" in line 35. The purpose of that is to deal with the cases not so much where there is a small non-residential use in a dwelling house, but largely where there is a small dwelling use in a commercial or industrial property. There may be a caretaker's flat in an industrial building with an unauthorised use. There may be a minor dwelling application to a building which is far more importantly something else.

A caretaker's flat in an industrial unit should not make it possible for the right of entry to be restricted after 24 hours. We entirely agree with and support the 24-hour restriction for genuine residential use. We do not think that it should be extended to these mixed uses. If the Government intend to resist that amendment, I hope that, in replying, they will recognise that it is incumbent on them to find a way of dealing with minor residential use in basically non-residential property.

Amendment No. 70 deals with the question of an authorised person as opposed to an occupier. That is where my example of a mixed development, say, of a residential flat or an industrial unit comes into play. One could well have the need to gain access through a security guard who would not be an occupier but an authorised person. I suggest to the Government that that another case which they will have to think about again. They will have to consider whether the provisions of Clause 11, as drafted at present, are adequate for the purpose.

I turn finally to Amendment No. 71, which deals with the requirement for showing urgency to obtain a justice of the peace warrant. In the past, through interpretation of the law, the urgency provision has been very severely restricted by reasonable grounds. The justices of the peace have been very reluctant to grant warrants on the basis of urgency when objectively, I suggest, planning authorities have good reason to know that unauthorised use is continuing and could cause irreversible damage. These are modest amendments and they do not go anything like so far as, for example, the powers of environmental health officers. I am not suggesting that they should. I suggest that the provisions in the clause as presently drafted are inadequate and that the Government should think again. I particularly put to the noble Lord the Lord Advocate the cases of the mixed uses and of the security guards.

9.45 p.m.

Lord Stanley of Alderley

I thank my noble and learned friend for his comments on my amendments. As concerns Amendment No. 72, I am as reasonably happy as any reasonable farmer at 9.45 p.m. My noble and learned friend has the right message there. I am only slightly worried about what will happen if this does not take place. However, that is a technical point.

I am not so sure about my noble and learned friend's answer to my Amendment No. 73. I am not a lawyer and I do not really understand tort. It is not a minor point. Many local planning authority officers are not agriculturally minded and are quite unaware of the damage they can cause, particularly to livestock if they are kept intensively, and indeed to young plants and seeds. I wonder whether it might be right to issue the same kind of guidance to local planning authority officers as my noble and learned friend suggested in his reply to Amendment No. 72.

Lord Fraser of Carmyllie

I understand what the noble Lord, Lord McIntosh, says about the small flat in a large building. However, his amendment would mean that someone who lived in a flat above a corner shop would similarly be deprived of the 24 hours' notice protection. I should be happy to look at the point again but I have considerable difficulty in seeing how the provision could be drafted so as not to take away the protection of the 24 hours' notice of someone who lives over the corner shop in contradistinction to someone who might occupy the caretaker's flat in what is otherwise a large building. I give no undertaking or make no promise but I shall look at the matter.

I have difficulty in understanding what an authorised person is. It would have to be someone who is authorised. I find it difficult to believe that even a security guard would be advised that he is authorised to receive notice on behalf of his employer or the occupier from the local planning authority. I do not see what "authorisation" means in this context other than a specific authorisation to receive that item of information.

Lord McIntosh of Haringey

The noble and learned Lord is compounding my fears. If a notice can be avoided simply by the occupier not being present and having a security guard or a caretaker who is not necessarily in occupation, the clause as drafted is even weaker than I thought it was. If his response is to say that it is wrong to have the person there with authority to control exit from or entrance to the building and that he cannot be served with the notice or cannot be forced to give access, the provisions in Clause 11 seem easy to get round. I am really worried by what the noble and learned Lord is now saying.

Lord Fraser of Carmyllie

I suggest that the noble Lord reads what I say and considers it carefully. The security guard would have to be given a specific authorisation. I find it difficult to believe that someone employing a caretaker or concierge would say, "By the way, if someone comes from the local authority and seeks to give you notice, you are authorised to accept it". The matter of authorisation has to be specific. The noble Lord may shake his head but one cannot conjure up an authorisation from nowhere. The obvious person to whom it should be given in relation to the dwelling house is the occupier.

I invite my noble friend Lord Stanley to consider what I had to say in relation to property. Where there is a right of entry onto land, it may be that where damage is caused there would be the opportunity to plead statutory authority. However, I do not consider that such a defence or line would be open if property rather than the land itself were damaged.

On Question, amendment agreed to.

Clause 11 [Rights of entry for enforcement purposes]:

[Amendments Nos. 69 to 73 not moved.]

Clause 11 agreed to.

Lord Moran moved Amendment No. 74: After Clause 11, insert the following new clause:

("Meaning of "development"

. After section 55(3) (b) of the principal Act (meaning of "development" and "new development") there is inserted— (c) The use of land for the purposes of breeding or rearing fish or shellfish and the use for those purposes of any building occupied together with land so used is not development for the purposes of agriculture".").

The noble Lord said: This amendment is designed to bring under planning control fish farming activities which are currently defined as "permitted developments". But in a broader sense it is a probing amendment designed to elicit from the Government their policy on the relationship of planning with fish farming which is at present in a considerable muddle. Certainly the Agriculture Select Committee in another place in its report on fish farming last year said that this relationship needed to be clarified. I believe that to be right.

Perhaps I may deal with the three different kinds of fish farms in succession and mention the problems which I believe need to be solved. First, there are the marine fish farms in our coastal waters and estuaries. The fundamental problem, as I see it, is that these are outside the jurisdiction of planning authorities. They come under the Crown Estate Commissioners. However, the commissioners have two conflicting interests. In a sense they are both gamekeepers and poachers. Members of the Committee may remember that that was the fundamental reason put forward by the Government for splitting the water authorities and the NRA. It was said that the old water authorities were in fact both gamekeepers and poachers. The same situation applies to the Crown Estate Commissioners. They have a responsibility to control the coastal waters, but they also have to maximise development and the income which they receive from licences. Therefore, they are naturally biased in favour of development. It seems to me that another authority should authorise fish farms in coastal waters.

There is another problem at present in Scotland where there are fish farms at sea. For example, a planning authority may find that the road leading to a fish farm has become damaged because of use by heavy lorries and that it needs to be repaired. However, no provision has been made for such reparation. The authority is responsible for the repair of such damage, but it has no say in the siting or licensing of the fish farm which is causing the problem.

In my view it would be most desirable that these marine fish farms should be brought under the ordinary planning law and the control of local authorities. The proposal that the control of marine fish farming should be transferred from the Crown Estate Commissioners to local planning authorities has, I am advised, the support of the Convention of Scottish Local Authorities and of the Atlantic Salmon Trust.

I should point out that fish farms of all kinds sometimes give rise to serious landscape and environmental problems. That fact was pointed out in the evidence from the NCC and the Countryside Commission for Scotland to the Agriculture Select Committee of another place. They expressed considerable anxiety over the lack of attention paid to conservation and landscape objectives in fish farm applications by the Crown Estate Commissioners.

So much for marine fish farms, I should now like to say a word about those on land. In its contribution to the White Paper the NRA said: Fish farms, too, have given rise to concerns about water quality. Many of these could be reduced if such developments were brought into the planning control framework. It would also be of considerable assistance if planning applications were made concurrent with applications for water abstraction and discharge consent, so that a full picture of the environmental consequences of such developments could be assessed simultaneously". That is solid good sense; but the issue of fish farms was not specifically addressed in the White Paper.

In its submission to the Agriculture Select Committee of another place, the NRA pointed out that there were clear advantages to fish farmers and other river users if the NRA were able to comment at the planning stage of fish farm development. It said: There is no current requirement for this nor for NRA advice to be acted upon… The requirements or otherwise for fish farm units to be the subject of planning control have been and continue to be ambiguous. The NFU, in a fact sheet on the subject, suggest most fish farming structures require planning permission although they refer to certain 'permitted development rights'. In practice, because fish farming has often been deemed 'agricultural', developments may escape planning control. These include large scale (up to 500 tonne/annum) fish cage production units. What the NRA said should be taken seriously. I hope that the Government will be able to modify matters to meet the valid points it puts forward.

The third category of course is fish farms in inland waters such as lakes. There is great uncertainty as to whether such structures constitute development and so come under the planning mechanism. I understand that the Association of County Councils has addressed itself to two of those problems: to the question of marine fish farms, where it suggests that planning controls should extend to one mile offshore for all purposes, not merely for fish farms. I believe that the noble Lord, Lord Ross, may move an amendment later in that context. The association also suggested that there should be an amendment after Clause 18 to make it clear that fish farms in inland waters constitute development. Again, I understand that the noble Lord, Lord Ross, may be moving such an amendment.

The matter needs clearing up. In view of the impact that fish farms have on the environment generally, it is important that all categories should be brought under the planning mechanism. I move the amendment jointly with the noble Baroness, Lady David, who has asked me to say that unfortunately because of the late hour she has had to leave, but that had she been here she would have spoken because she feels strongly about the issue. I beg to move.

Lord Stanley of Alderley

I do not entirely support the noble Lord, Lord Moran, on the amendment. I shall ask him three brief questions. First, I cannot see how a local planning authority will control the effluent from a fish farm any better than the NRA. Moreover, because of the controls on fish farms now, it is doubtful that any new ones will be built. Finally, the buildings for fish farms are extremely small and normally underground. Perhaps the noble Lord will deal with that when he replies.

10 p.m.

Lord Ross of Newport

I confirm that it is my intention to move two amendments later in the Bill at the request of the Association of County Councils whose brief I have here. Apparently it does not think that the amendment proposed by the noble Lord, Lord Moran, should be supported. I do not understand the reasons—no doubt it will tell me later—because the amendment seems to be totally on a par with what I have in mind.

One of my first adjournment debates in the other place raised the question of fish farming because I was very much in favour of the idea. It seemed to me natural that we should do all we could in food production to make use of an obvious source which is successful particularly in the Far East. It is now big business. In Scotland it is a major industry. But it causes problems with effluent, as we know. There are also problems with the Crown Estate Commissioners, who not only grant or give the consent but who control the situation. I know from meetings I have had with the NCC in its existing state and with people involved in environmental matters that everyone feels the problem should be faced by the Government and action taken. The noble Lord, Lord Moran, has a close relationship with the NRA, and, as he said, it causes the NRA problems.

I always hesitate to speak on anything which refers more to Scotland than anywhere else, but that is where this business is. My Scottish colleagues do not necessarily agree with all I say on the subject, but I think there is no question that in the Bill we ought to make some advance on the matter. It seems to be an opportunity to obtain some control and therefore I support the amendment.

Lord McIntosh of Haringey

I know that, as the noble Lord, Lord Moran, said, my noble friend Lady David would have wished to be here to support the amendment. She is particularly concerned with coastal fish farms, which, as the noble Lord, Lord Ross, said, through an extraordinary historical anomaly are under the control of the Crown Estate Commissioner. They are supposed to work closely with the Nature Conservancy Council in the control of fish farms and a special advisory committee has been set up to advise them. However, I am told that the Crown Estate Commissioners frequently completely ignore the advice of that committee and go against the opinions of the Nature Conservancy Council.

It can only be an historical accident; there can be no rational justification for fish farms being under the control of the Crown Estate Commissioners. If we started from scratch, we should certainly not do it that way. We should put them under the control of the relevant local authorities. As I understand it, both the Association of County Councils and the Convention of Scottish Local Authorities have indicated their willingness to take on these responsibilities. Thus I can see no difficulty in removing the anomaly or in the Government accepting the amendment and doing what ought to have been done many years ago.

Lord Moran

With the Committee's permission, perhaps I may briefly answer the two questions put to me, the first by the noble Lord, Lord Stanley of Alderley. I do not believe there is any conflict between the interests of the local authorities and the NRA. The point that the NRA made is that at the moment there is no requirement for it to be consulted at the planning stage. If it was, when it discusses discharges and effluent it could often propose a sensible solution that would not damage the rivers and would be in the interests of the fish farmer concerned. That would be a great advance.

As concerns the Association of County Councils, like the noble Lord, Lord Ross, I was mystified when I received its brief that it did not support my amendment. However, the brief continued with four admirable paragraphs with which I totally agreed. I pointed out that I agreed with every word and therefore I did not see why it should not support me. However, I should pursue that anomaly with the association.

Viscount Astor

As noble Lords know, last year the House of Commons Agriculture Select Committee made an in-depth study of fish farming in the United Kingdom. The point about the noble Lord's amendment is that it would alter the long-standing definition of "agriculture". The Select Committee recommended that in England and Wales existing permitted development rights for fish farming operations should be removed from national parks, but not elsewhere. It expressed the view that buildings associated with fish farming should be treated in the same way as buildings associated with other agricultural users.

The Government have accepted the recommendation of the Select Committee and will amend Part VI of Schedule 2 to the Town and Country Planning (General Development) Order 1980 so that operations associated with fish farming in national parks in England will require specific planning permission before they can take place. No convincing case has been made for changes in England and Wales outside national parks. There are no permitted development rights for fish farming in Scotland. The fish farming industry in England and Wales is much smaller and the Agriculture Select Committee noted that there has been little controversial development.

If I may turn to other matters that the noble Lord raised, there was the point about the NRA. It has some power over fish farms, but obviously not planning power, because fish farms are subject to the control provisions of the Water Act 1989, and it is an offence to discharge any polluting matter into inland ground estuarial or coastal waters without authorisation. The discharge of fish farm effluent into these waters must be consented to by the NRA, which has wide powers to attach appropriate conditions to consents for the purpose of protecting the quality of the receiving waters. Fish farms also obtain an abstraction licence from the NRA under the Water Resources Act 1963 for the abstraction of more than 20 cubic metres of water per day.

Going back to some of the other points that the noble Lord raised with regard to marine development and fish farms, the planning control generally ends at the low water mark. The important point about the Crown Estate Commissioners is that they are answerable to ministers, they have access to independent and expert advice and they have a fairly large department now, which I have been to see. I believe that there are over 200 people in Edinburgh now. They also have an advisory committee. The Government will keep the activities and procedures of the advisory committee under review to ensure its effectiveness. When it comes to granting licences, it consults local opinion, local landlords and other local interested bodies.

The important point is that local authorities do not have special expertise about conditions at sea. They have no expertise at all in this matter. This is very different from development on land. Existing consultation arrangements enable the Crown Estates Commissioners to take proper account of environmental considerations. I believe that I have answered most of the noble Lord's points.

Lord Ross of Newport

There is a desperate need for people on this side of the Committee to get together before Report stage, because this is a clean Bill for the Crown Estate Commissioners. They are in the same position as local authorities, giving themselves planning consent for land and then selling it for a large amount of money. I have to tell noble Lords that in the NGOs the role of the Crown Estate Commissioners, particularly in Scotland, is not at all highly regarded. People do not believe that they are doing their job at all properly, and I do not think it is right that they should be both the seller and the buyer in the same field. The positions ought to be separated.

I have also been told—I am not a fisherman, but the noble Lord, Lord Moran, is—that the Test, which has a lot of trout farms on it, now has very few wild trout. I do not know whether that is right, but the river has certainly been polluted. We must look at the situation in greater detail if we mean what we say about Her Majesty's Inspector of Pollution and the NRA. I agree that they may have some rights. However, the procedure will have to be toughened up considerably.

It would be much better to follow the planning application procedure before someone starts such a project, rather than risk ruining such a project when it is already operating. If someone wishes to set up a fish farm, it would be much better for him to follow the proper procedures rather than be penalised after he has raised the finance and invested capital in the project. I believe the present procedure goes about things in the wrong way. I am sure we shall have to return to this measure later in the Bill.

Lord Moran

I, too, think that we shall have to give more thought to this matter and probably return to it at a later stage. I was disappointed in the Minister's remarks as I think that changes are urgently required. The Minister referred to planning controls being extended only to fish farming in the national parks. The National Rivers Authority was disappointed that the Government, in their response to the report of the Agriculture Committee of another place in December, agreed with the committee that the planning controls should operate only in the national parks. I do not believe that there are many fish farms in national parks. The NRA would certainly like the controls to operate nationally. Having said that, I do not wish to press the amendment at this late hour. I hope that the Government will give more thought to the matter between now and Report, as we certainly shall. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 74A: After Clause 11, insert the following new clause:

("Agricultural and forestry buildings

.—After section 59(3) of the principal Act (development orders) there is inserted— (4) No development order may grant planning permission for the erection of a building or the formation of a private way for the purposes of agriculture or forestry." ").

The noble Lord said: I understand that Amendment No. 74A is to be discussed with Amendment No. 109. The latter amendment stands in the name of the noble Lord, Lord Ross of Newport. Amendment No. 74A places a toe, and only a toe, into the very deep water of the extension of planning controls to agriculture and forestry. I see that the noble Lord, Lord Stanley of Alderley, is still in the Committee. I am sure that he will seek to bite that toe, even if he cannot reach any larger part of my anatomy.

I wish to start by saying that I can well anticipate what the Government will say on the issue of primary legislation and general development orders. I am aware that for many years government have taken the view that the extent of the coverage of general development orders should not be a matter for primary legislation. They believe there ought to be the flexibility for government to make changes by amendments to general development orders. Even if the cause is entirely worthy—and I am not convinced that the Government will think this cause is entirely worthy—they believe it should not be included in primary legislation.

I disagree totally with that view. I believe that the issue of what should be covered by planning legislation is a matter for primary legislation, if anything is. It should be a matter for us in Parliament to consider. We should be concerned with the fact that a large part of land in this country outside urban areas is farmland or forestry land. It has been tacitly excluded from planning controls by executive action in general development orders.

I shall not venture into the territory of agricultural or forestry operations. However, I believe that there is a particular abuse which is extremely widespread. It concerns the use of a general development order to allow farm buildings to be constructed which would never be allowed to be constructed under any rational system of planning control. In many cases those buildings are not farm buildings. We have all seen post-modernist barns, cowsheds with pediments, turkey sheds with double glazing and elaborate drives with crazy paving leading up to so-called farm buildings. Such things can be seen all over the country and it is totally impossible for planning authorities to challenge the claim that such buildings are farm buildings even though it is obvious to the naked eye that if there is a farm use at all of such buildings it is only for a temporary period. It is obvious that such a ploy is a way of evading proper planning legislation.

If we could find a way other than changes in development orders of controlling this abuse of planning legislation, this avoidance of planning legislation, I assure the Committee that we would do so. However, planning officers around the country who are charged with this responsibility have discovered that there is no way of doing it. The only way of doing it is what we propose in this amendment, which is to bring farm buildings and farm roads out of the exemption provided by general development orders and into the planning procedures of this country.

After all, why should farming be so different from any other form of economic activity? In every other form of economic activity it is accepted that planning laws, except in enterprise zones, should control the development of the buildings because that develop-ment affects other people. Farms affect other people just as much as anything else. Farms are not, or ought not to be, aside from the rest of the world. We are all concerned with our rural landscape. We are all concerned with the way in which our countryside is used and the way in which our countryside has buildings on it.

The way in which the farming community has abused the freedom from planning control of farm buildings ought not to be accepted. This is the proper Bill in which the matter should be put right, and the only way to do it is to prohibit the general development order from this quite unreasonable, unwarranted and outdated exemption. I beg to move.

10.15 p.m.

Lord Stanley of Alderley

I suppose that I have got to reply to that passionate inveigling against me by the noble Lord, Lord McIntosh. I know that it is 10.15 in the evening but it really was, if I may say so, a flight of imagination as to what farmers do or do not do. Having said that, and having replied to the way in which he put the amendment, my rational answer to his amendment is that, as I understand it, the Government are proposing a system of prior notification, and I really do not see that there is any need for the further control that the noble Lord's amendment suggests. As he is only putting his toe in the water on this, I too shall only just put my little toe in at this stage, but I do not like it much.

Lord Ross of Newport

May I say to the noble Lord, Lord Stanley of Alderley, as a former member of the NFU and as somebody who farmed and who now lives in the countryside not so far away from him, that we see very large agricultural buildings, and I sometimes wonder. I know that the grants are now being substantially reduced, but they went up because there were substantial grants to be had to build them. No doubt the Minister will remind us that there are in existence now planning controls for larger farm buildings over, I think, 5,000 square feet, and I believe that silos also now come under planning law. Perhaps we could get confirmation of that.

I am concerned on behalf of the CPRE. They want to make it clear that they support an amendment giving the Government discretionary power to extend planning controls over agricultural and forestry operations. They envisage that power being used to bring only the most major agricultural operations under control, and to extend planning control over all afforestation above a threshold size to be defined by the Secretary of State. I think that that is even more important. Such controls would enable the public to comment on, and local authorities to prevent or modify, proposals which could have a lasting and damaging effect on the environment.

I make it clear that the amendment that comes from the CPRE does not support planning controls over all agricultural operations, and nor would I want to do so. But there is irrefutable evidence of the damage caused to the countryside by major agricultural and forestry operations, and there is public recognition of the need to change. I should be interested to hear what the Minister has to say in reply to these two amendments, which have unfortunately come on at 20 past 10 at night. I think that this is too important a subject to discuss now and one that we ought to be able to debate at much greater length.

Viscount Astor

Our view is that the planning system should continue to recognise the special operational needs of agriculture and forestry businesses. The relationship between fanning and forestry land use is unique, as recognised from the inception of the modern town and country planning system over 40 years ago.

However, that is not to say that we regard any change in the current planning system as it affects agriculture and forestry as out of the question. The fact is that we have shown we are prepared to introduce new controls where we are convinced that they are justified. For instance, two or three years ago we introduced new restrictions on the erection of buildings for livestock close to other residential property.

Last autumn we published a consultation paper on planning and control over agriculture and forestry buildings. That paper invited views on the proposition that all farm and forestry buildings should be subject to prior notification —essentially the same notification scheme as already operates in our national parks. It would enable local planning authorities to control the siting, design and external appearance of farm buildings erected under the general development order. The paper also invited views on the question whether farm and forestry roads should be included in any new notification agreements and on the treatment of extensions and alterations to farm buildings. It also proposed to increase the minimum area of agricultural land attracting permitted development rights under the general development order, with special provision for genuine units below the new higher threshold.

The period for responses to that consultation paper has only just expired and we are still in the process of analysing the several hundred responses we received. It is too early to say what final decisions we want to take in the light of the consultation exercise.

The point I am making today is that we are prepared to consider change where there is evidence that it is needed and, should we be persuaded, the powers already exist which would enable us to require specific planning applications for agricultural and foresty buildings and roads.

As the noble Lord, Lord McIntosh, made clear we consider that this type of development should not be the subject of an amendment like this and should be clearly set out in primary legislation and be subject to full parliamentary debate. The Government do not want a power which will enable the definition of "development" to be amended which will lack that degree of scrutiny.

The noble Lord, Lord McIntosh, also made a point on farm buildings and mentioned various abuses. I think that the strengthened enforcement provisions in the Bill should very much help that situation. However, that is a separate argument from this amendment.

The noble Lord, Lord Ross, mentioned the question of planning permission for large buildings. I think that buildings larger than 5,000 square feet, or higher than 12 metres, are subject to full planning controls at the moment. We are not convinced at this stage that there is a need to withdraw permitted development rights for agriculture. Nor are we convinced of the need to extend planning control to agricultural and forestry operations, even on a selective basis. There are, in our view, particular difficulties about using the relatively inflexible mechanism of the planning system to control activities which are necessary in the course of the day-to-day operation of a business. The need for efficient and flexible agricultural and forestry industries remains very important. Therefore, I hope that the noble Lord will withdraw his amendment.

Baroness Seear

Perhaps I might ask whether the noble Viscount began by saying that he thought this should be subject to primary legislation? This is primary legislation, is it not?

Viscount Astor

The point I was trying to make was that it should not be something just tacked on by an amendment in this way but should be subject to full parliamentary debate in a separate Bill.

Lord McIntosh of Haringey

The noble Lord is digging an even bigger hole for himself. First, he misunderstands the relationship between the develop-ment order and primary legislation. Secondly, in response to the noble Baroness, Lady Seear, he said that the only proper primary legislation is that which is put forward by the Government, and that amendments put forward in Parliament are not acceptable as primary legislation.

Viscount Astor

I must correct the noble Lord. I certainly did not mean to say that. I am sorry if he misunderstood me.

Lord McIntosh of Haringey

That is the effect of what was said. I cannot say that I am surprised by the general tone of the Government's reaction to this amendment. However I am bound to say that there are more misstatements and misunderstandings in that short reply than I have known for some time in a government response.

Let me start again from the beginning. The noble Viscount claims that, because the exemption from planning control of agricultural operations started over 40 years ago, somehow that ought to continue. Perhaps I may remind him that the Town and Country Planning Act 1947 was introduced at a time when we had a desperate need to increase agricultural production in order to feed the population because of the food shortages in this country in the post-war period. The position is reversed now. The difficulty is to find ways to reduce agricultural production without throwing too many farmers on the scrap-heap. It is a very different situation and there is no reason for the same exemptions that applied in 1947 to be applied now.

The noble Viscount said that the Government are consulting on this matter. Apart from the objection which I raised earlier to consultation taking place while the Bill is before Parliament so that there is no opportunity for the results of the consultation to be considered by Parliament, the fact is that the consultation is on a very limited basis. It is only about prior notification of development of agricultural land. It is not about proper planning control. Notification is by no means the same thing as planning control.

The amendments which are proposed about the size of agricultural units do not affect the size of agricultural buildings. Reference has already been made to the very large agricultural buildings that can be built on small and large agricultural units. If the scope of the consultation had been rather wider we might have taken it more seriously. But clearly it is only a pinprick at the edge of the abuse of planning controls that is now available to the agricultural community.

Lord Stanley of Alderley

Perhaps the noble Lord will allow me to rise. He said that this measure does not apply to agricultural buildings. But, yes, any agricultural building of 474 square metres comes under planning control. I think that that is the figure. I am sure that the noble Lord realises that, does he not?

Lord McIntosh of Haringey

I think that the noble Lord will find that it comes under the notification procedures and not under planning control. As I said, that is a very inadequate substitute for proper control.

Lord Stanley of Alderley

I am sorry to get to my feet again but I do not think that the noble Lord is right. I certainly had to apply for planning permission for the last building that I put up.

Lord McIntosh of Haringey

I yield to the noble Lord's personal experience. No doubt we can talk about this matter at another time and in another place.

Lord Ross of Newport

Surely the point that is being made is that one has to obtain planning permission for a building of 5,000 square feet or above, or so we were told. The fact is that one can erect any number of additional buildings which are, say, 4,500 square feet and continue to add. That is the problem, although the noble Viscount says that it is not so. I say to the noble Lord, Lord Stanley, that what is worrying many noble Lords, and incidentally other people in the rural community as well, including farmers, is that one now finds huge almost industrial buildings in the heart of the countryside. That is what upsets me. I am sorry but it is true. I can take the noble Lord, Lord Stanley, and show them to him at any time.

Lord Stanley of Alderley

I am sorry to have to speak yet again. I had exactly the same problem. If one adds to a building one has to go again to the planning authority.

Lord McIntosh of Haringey

Let us leave on one side the property of the noble Lord, Lord Stanley, and not exercise any right of entry. The fundamental issue remains. If it is not proper in a Bill on the enforcement of planning laws to deal with the abuse whereby a large part of land outside urban areas is exempt from planning laws, it is difficult to understand where it would be proper. My amendment is a modest one. It does not cover agricultural forestry operations as a whole. It covers only buildings and roads. It only covers them because it is necessary to deal with widespread abuse.

As I said, I am not surprised by the Government's reaction nor by that of the noble Lord, Lord Stanley. However, I am deeply disappointed by the lack of understanding of the need to make our planning laws effective not only in terms of enforcement but also in terms of their coverage. I suggest that this Bill is the right place to do that. It is only because of the time of night that I refrain from seeking the opinion of the Committee. I beg leave to withdraw the amendment.

10.30 p.m.

Viscount Astor

Perhaps I may clarify a point that I made earlier. The amendment tabled by the noble Lord, Lord McIntosh, proposes primary legislation. Our objection was to the proposal in the amendment tabled by the noble Lord, Lord Ross, which proposed action by way of development order.

Lord McIntosh of Haringey

I am grateful. As is now clear, my amendment uses primary legislation to restrict the general development order rather than the reverse. That was why I exclaimed in surprise when the noble Viscount made his comment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 [Rights of entry for enforcement purposes]:

On Question, Whether Clause 36 shall stand part of the Bill?

Lord Fraser of Carmyllie

For the reasons that I indicated when moving Amendment No. 68, which inserts a new clause, it would be inappropriate if Clause 36 were to stand part of the Bill. I have given notice of my intention to oppose the Question.

Clause 36 negatived.

Clause 12 [Planning obligations]:

Lord McIntosh of Haringey moved Amendment No. 75: Page 19, line 17, leave out ("or otherwise") and insert ("with the authority").

The noble Lord said: I understand that my amendment is to be taken with Government Amendments Nos. 76, 77, 79, 80 and 82. The Committee will forgive me if I do not comment on those amendments until they have been properly introduced from the Government Front Bench.

Amendment No. 75 is one of the two or three most important amendments to the Bill. It received considerable attention on Second Reading. We feel strongly about the matter and are sorry that the timetable is such that it arises at 10.30 at night rather than at a time when more Members are available to consider it.

Planning agreements—Section 52 agreements as they were; Section 106 agreements as they have been since the consolidation Act of 1990—have been an important part of planning legislation for a number of years. I am aware that some people believe that they can be subject to abuse. I am also aware of accusations made against local planning authorities of selling planning permission and seeking to obtain irrelevant planning gains and financial contributions to local authority services in return for granting planning permission which they would not otherwise have granted. Sometimes that can be entirely benign; for example, when provision is made for social housing in a scheme which would otherwise provide only luxury housing. There the proper concern of a planning authority is for the balance of housing in a particular area. But sometimes it can be malign, in the sense that a local authority can give permission for a retail or industrial development on the basis of the provision of car parking facilities, which may or may not be socially desirable or in the interests of the retail development, let alone the wider community.

What is common about all the planning agreements is that they are between the potential developer and the local authority. The Bill now introduces a completely new provision. It is that developers seeking planning permission can make unilateral undertakings without the agreement of the local authority. Those undertakings can be taken into account in later decisions. For example, they can be taken into account by the Secretary of State in considering an appeal. That means that the Secretary of State is able to second-guess the local authority about its own planning priorities. He is able to judge not only whether the local planning authority has been right or wrong in its interpretation of planning law or of the public interest for a particular development but also the local planning authority's wider concerns which would otherwise have been expressed in Section 52 or Section 106 agreement.

That means that in these proposals we have substantial extension of the Secretary of State's power. That means that he now has the power to revoke or modify agreements which have been freely entered into between local authorities and developers. Those are not impositions upon developers but have been agreed between the local authority and the developer. Some people sometimes say that they are impositions by the developers upon the local authority. That means that the negotiating position of the local authority in dealing with developers will be reduced. The negotiating procedure will be prolonged because the uncertainty will exist at the end of the day as to whether the Secretary of State, in considering an appeal, will consider a unilateral undertaking and not simply an undertaking made as part of an agreement between the developer and the local planning authority.

The second implication is that local authorities may be required to enforce unilateral undertakings to which they have not been a party and which they may never have wanted. I cannot see how it can be right for local planning authorities to be put in that position. All the emphasis today has been upon enforcement. Surely enforcement is of the planning policy of the local planning authority and of the law, not of a unilateral undertaking which may go completely counter to the interests of the community as expressed by the local planning authority.

My third objection is that those unilateral undertakings would be most unlikely to take full account of the land use issues in the same way as would a voluntary agreement between a local planning authority and a developer. After all, a planning authority must have local knowledge, expertise and accountability to enable it to reach an agreement. That must be the considered view which is put in the end to the Secretary of State at an appeal. However, a unilateral undertaking would have to be enforced and paid for by a local authority because it could involve all sorts of additional expenditure in terms of additional road network, access and other local authority services such as refuse collection and so on. All those agreements will be imposed upon local authorities as a result of something in which they had no part and which they had no wish to see imposed.

Whatever may be the import of the government amendments in this group, the concept of unilateral undertakings as additional to the existing concept of planning agreements is a most undesirable addition to planning law. It will do enormous damage to the ability of local authorities to plan sensibly for their communities and to plan the services which are needed for their communities. I feel most strongly that this is an excrescence on the face of a Bill which in many ways is very welcome. I am sorry to find that the Government are proceeding with this addition to what is in many ways an excellent Bill. I beg to move.

Baroness Blatch

One must agree that there is a fundamental difference between the noble Lords opposite and the Government. Amendment No. 75 is effectively a wrecking amendment. It will remove from Clause 12 one of the main reforms that 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 chosen and well considered reform. It was the subject of full public consultation in 1989 and it was supported by the majority of respondents who commented.

I want to emphasise that the Government see creating an obligation by an undertaking as an alternative to doing so by agreement, not as a replacement. It is an additional weapon in the armoury of a developer faced with a recalcitrant local authority which holds out for excessive and unreasonable gain, and which therefore refuses or even fails to determine a planning application. Plainly developers and authorities would prefer to reach agreement if they possibly 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 to resolve matters.

It may assist the Committee if I explain the background to the undertaking's provision and how we expect it to work. At present, if there is a planning objection to a development proposal, which only a planning 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 is still unwilling to make such an agreement, the developer is no further forward.

Enabling the developer to create an obligation by means of an undertaking is a way through this impasse. Such an undertaking, where relevant to the proposed development, will be a material considera-tion on appeal, and the inspector will therefore take account of it in determining that appeal. 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.

I should finally clear up some misconceptions about planning obligations created by an undertaking. First, to enter into an obligation someone must have an interest in the land concerned. A developer will not be able to bind himself to do what he manifestly cannot do. Secondly, a developer cannot, by means of an undertaking, bind the local planning authority, or anyone else for that matter, directly to do anything.

I have endeavoured to clarify as best I can what is a verb tricky subject. I hope the noble Lord will withdraw his amendment.

Amendments Nos. 76, 77, 79, 80 and 82 are drafting amendments. They establish that only the local planning authority which is identified in the deed (see the new subsection 106(7) in Clause 12), may enforce a planning obligation. This clarifies the position in the shire counties where there are two local planning authorities; the county council and the district council. They are technical amendments designed to avoid any ambiguity.

Lord Ross of Newport

Perhaps I may say briefly that I give a cautious welcome to the Government's proposal. There are cases where this provision could work very well indeed; on the other hand, it can be abused. We shall have to be very careful. On the whole it has something to be said for it.

10.45 p.m.

Lord Sainsbury of Preston Candover

I support what the Minister has just said. The purpose of the Bill, as agreed by this Chamber, is to make the planning system a more efficient system. This is one of the most important ways that the Bill achieves that. It allows the current planning agreements to continue as well as allowing unilateral undertakings. It will make it more efficient without any loss of control by the local authorities, or indeed by the Secretary of State.

I should like to take up a moment of the Committee's time explaining why it is so important that the efficiency of our planning system is improved. The Government laid down an objective that 80 per cent. of planning applications should be decided within an eight-week period. In 1979 it had been around 60 per cent. During the period 1982–86 it improved to around 70 per cent. Over the past three years that achievement rate has declined, and today it is as low as 46 per cent. Only 46 per cent. of planning applications are decided within the target eight-week period.

The Department of the Environment in its speed of handling planning appeals has as bad a record. The Government set a target of 17 weeks as the average time to process and decide a planning appeal. In the third quarter of last year the average time taken to decide a planning inquiry was no less than 39 weeks, which is 22 weeks longer than the Government's target. That was also during the time of the downturn in the economy. Who should doubt the fact that there is a need to examine any means by which the planning system can be made a little more efficient and quicker? Research undertaken by Reading university and which has been vetted (the department has a copy) demonstrates that for every one week that planning decisions in this country are delayed there is extra cost in the region of £35 million to £4O million. Therefore, a 22-week delay over what the department thinks is the right target imposes a huge and unnecessary burden on this country and its development industry. I accordingly believe that any provision which can help to speed up planning requires most careful consideration.

The provision for unilateral undertakings will have effect in reality only when a situation arises in which the Secretary of State has to decide an application on appeal. Obviously, undertakings offered to a local authority and accepted by it prior to, or even during, an appeal would not be unilateral undertakings but planning agreements. Unilateral undertakings will only have a purpose when an application is taken to appeal and the Secretary of State decides that it is appropriate for the appellant to offer a benefit to the local authority in exchange for planning agreement.

At the moment the Secretary of State has two options in such circumstances. He may either give a "minded to allow" decision or accept an undertaking from the developer on behalf of the local authority. If a "minded to allow" decision is given, the developer is likely to face further delays of between three and six months while he and the local authority seek to agree a planning agreement. A major disadvantage of this procedure is that, if the two parties do not agree, then either the Secretary of State has to give approval for the development without any planning gain or an otherwise acceptable development is frustrated.

Alternatively, the Secretary of State is already empowered to choose to accept an undertaking from the developer at an inquiry. There is judicial authority for this. I think the case concerned is that of the Hildenborough Village Preservation Society 1978. However, such existing undertakings lack the statutory backing provided by this Bill. Problems such as difficulties with enforcement and interpretation may arise. Far from restricting the powers of local authorities, I believe that the unilateral undertaking provision offers many real benefits to them. An undertaking would only exist when it had been made by the developer and accepted by the Secretary of State. Since the local authority is not party to the acceptance of the undertaking, it would not be legally bound to accept the benefit.

I turn to the example of the public open space which was referred to by the noble Lord, Lord McIntosh, at Second Reading debate. He quite properly suggested that it would he unfair if a unilateral undertaking imposed additional cost on a local authority since it had not been party to the agreement. However, if, following an inquiry, the Secretary of State grants approval for a planning application in exchange for a unilateral undertaking by the developer to give—shall we say?—public open space to the local authority, then there is nothing in the Bill to require the local authority to accept the gift. Indeed it could very easily refuse to accept the conveyance of the land. Not only would the local authority be in a position to choose whether or not to accept the land but it would also be possible for the Secretary of State to require, within the terms of the undertaking, the developer to include with the gift of the land a commuted lump sum to cover maintenance costs.

Under the new system and prior to the Secretary of State's acceptance of a unilateral undertaking, the local authority would of course have an opportunity to make submissions during the inquiry about the content of the undertaking. The Secretary of State will also be bound by his own strict guidance set out in DoE Circular 22/83 as to what is and what is not appropriate in terms of planning gain. It would thus be possible for a local authority to challenge his decision if it felt that the package was inappropriate. Unlike the undertakings which the Secretary of State might accept at present, under the new system the content of undertaking would be clear, being executed by deed, and thus problems of enforcement and interpretation would, I suggest, be considerably lessened.

Lord McIntosh of Haringey

I am deeply conscious of the expertise in this area of the noble Lord, Lord Sainsbury. I am sure that he has given adequate consideration to the issue of whether he should have declared an interest when speaking on these matters.

The noble Lord made a number of statements about the implications of unilateral agreements. I simply cannot agree with him. The critical judgment about whether planning agreements should be entered into and whether they are acceptable in planning terms is set out clearly in planning policy guidance note I. That is the Government's planning policy guidance; it does not come from us. The note says that the facilities to be provided or financed should be directly related to the development in question or the use of the land after development.

The noble Lord's example of the provision of public open space, in respect of which he said that the local authority is not obliged to accept the covenant of the land or to maintain the public open space, indicates to me that he does not fully appreciate the implications of the planning policy guidance note or the relationship between the development and the gain, which is otherwise under an agreement to be agreed between the developer and the local authority. I wonder whether he fully appreciates—and I wonder whether the Government fully appreciate—that if facilities are produced by a developer as ancillary to a planning permission, the local authority has to continue to provide services, has to provide access if it is not available or continue to provide access if it is available at the outset, and has to maintain any facilities which are produced for the public benefit. All those things cost money.

When there is an agreement between a developer and a local authority under Section 106, all that is entirely acceptable because the local authority is making the judgment with its eyes open. But when there is a unilateral agreement, or, as is made clear both by the Government and by the noble Lord, an agreement in effect between the developer and the Secretary of State, the local authority is the pig in the middle. The local authority, not necessarily wanting those facilities, will have to maintain them, pay for them or reject them, which means that the so-called planning gain, the undertaking, is of no meaning and the Secretary of State ought not to be considering it.

The Minister tells us that there has been consultation on this matter and that there have been a large number of replies in favour of the Government's proposals. I am bound to ask: who has replied in favour of the Government's proposals? Which of the local authority associations has replied in favour of the proposals? Which of the professional institutes concerned with planning and planning law has replied in favour of the proposals? The Royal Town Planning Institute carried out an extensive survey which unearthed very few abuses of the kind which are alleged for planning agreements.

The Minister says rightly in response to my amendment that there can be no binding commitment to do something which the developer has no power to do. I accept that, but it is not a very powerful argument. I should have thought that it was tautologous. It is claimed that there is no question of binding the local authority directly to do anything. Of course there is no question of binding the local authority directly, but what we are complaining about is that the local authority will be bound indirectly to do many things with which it may not agree.

If I am to be convinced that this major change to planning law is required and that this major weakening of the authority and responsibility of local planning authorities is acceptable, I need to be given examples of the abuse which it is designed to correct. I have had no examples of that abuse. The Royal Town Planning Institute has found no examples of the abuse.

I must say that I am deeply disappointed by the response of the Liberal Democratic Party to the issue. I shall be most interested to see whether it pursues the matter when the Bill reaches another place. I have never before heard the suggestion that it was in favour of unilateral agreements. I believe that the noble Lord, Lord Ross, may find himself alone in the matter.

Lord Ross of Newport

I am not ashamed of that fact. I must point out that we would not have to dig too deep to find examples of local authorities which have been totally and utterly bloody-minded with perfectly capable and excellent developers. Indeed, I could name one in my old constituency. I gave a cautious welcome to this proposal. I realise that it could be abused. But, on the other hand, one of the finest things which happened in my old constituency was the completion of a first-class job by a property company. I do not believe that the local authority really wanted to help the company one iota. If developers cannot get any sense out of some of the planning committees then they should have the right to "do a deal" with the Government's consent. After all, Lambeth Council would not even talk to British Rail about Waterloo, which was absolute nonsense. Of course, there will be much talk about it, but there are umpteen examples all over the country of local authorities which, as I said, have been totally and utterly bloody-minded over very sensible developments.

Lord Sainsbury of Preston Candover

If having an interest in a more efficient planning system for this country requires a declaration of interest, I must apologise to the Committee for not declaring such an interest. I suggest to Members of the Committee that the whole country has an interest in a more efficient planning system. I also suggest to the noble Lord opposite that he has ignored the point that a system which protracts decision-taking as regards planning for a further three to six months is not consistent with an object which everyone in this Chamber wants to achieve; namely, a more efficient planning system.

I further suggest to the noble Lord that he has failed to take the point that if a local authority has a good case for not accepting a unilateral undertaking, and not taking responsibility for such a liability, it will have the opportunity of establishing that case in the public inquiry. It will then be a decision for the Secretary of State, and if he makes the wrong decision the matter would be outside our control. It is for the Secretary of State to listen to the local authority and to make a judgment as to whether the authority's reservations about a unilateral undertaking are valid.

Lord McIntosh of Haringey

I do not think that what the noble Lord has just said affects the issue. In my view, we still have the position where the developer and the Secretary of State have the ability between them to come to an agreement which will be indirectly —not directly—binding upon the local authority, which will run the risk of the local authority being involved in extra expenditure and which will also run the risk of providing or financing facilities which are not directly related to the development in question. That the issue. It must be an agreement with the local planning authority, which knows about the needs of the area around the land destined for development, to participate in that discussion and agreement.

The noble Lord, Lord Sainsbury, made very valid points about delays in planning permission which I acknowledge. However, the amendment is not about delays in planning permission; it is about unilateral agreements being entered into without the approval of the local authority. The powers for a developer to claim that refusal has been deemed after the expiration of the legal date are not affected by the proposed amendment. The matter can still go to appeal when the allotted number of weeks have expired.

I am sure that the noble Lord is right if in fact he is saying that the time taken to consider planning appeals has increased. If that is so, I hope that he will support future amendments from these Benches which will seek to outlaw the kind of twin-tracking, duplicated appeals which take up so much extra time and which make it more difficult for local planning authorities to keep within the planning period.

What planning authorities do with greater or lesser degrees of efficiency is to deal with the planning applications which come before them. If developers deliberately put forward a number of alternative applications in order to get around the rules, then one of the effects will be that the decision period involved will be prolonged. That will affect not only them, but also everyone else.

The noble Lord and I are on the same side on the issue of delays in planning appeals. It is only on the issue of unilateral undertakings that we are not in agreement. I am conscious that it has been agreed that the Committee will adjourn at approximately 11 p.m. I do not wish to try the Committee's patience. It is extremely unfortunate that this important subject has arisen at this late hour. It is not a matter that we can allow to drop. It is of fundamental importance to the ability of local planning authorities to do their job properly. The Government's proposals are regrettable in an otherwise welcome Bill. We shall be forced to return to this matter at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendments Nos. 76 and 77: Page 19, line 20, leave out ("by the authority"). Page 19, line 44, at end insert ("by the authority identified in accordance with subsection (7) (d)").

On Question, amendments agreed to.

Viscount Astor

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at eleven o'clock.