§ 3.51 p.m.
§ The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee. —(Baroness Blatch.)
§ Lord McIntosh of Haringey
My Lords, with great regret I have to tell the House that it is not the view of myself and my colleagues that the House should resolve itself into Committee on the Bill. The Bill has had a substantial history over a long period of time. It is largely based on a report of March 1989. It is no secret that the Bill was ready for its parliamentary passage in the 1989–90 Session but was withdrawn because of the pressure of parliamentary business. It came before the House for First Reading only in late November of last year and was given its Second Reading in December. Almost within days—certainly within a very few weeks of the first publication of a Bill of 121 pages—we were faced with two blocks of government amendments. They now number 208, covering 87 pages.
I wish to put it to the House that this is not the same Bill that we debated at Second Reading. It is an abuse of the procedures of this House that we should have a Second Reading about a totally different Bill and that we should be asked to go into Committee with this number of government amendments to their own Bill. It is not a matter of this House acting as a revising Chamber. The Bill comes before your Lordships before it goes to another place. It is surely the responsibility of the Government to make up their 1265 mind what they want in their own Bill and then print that Bill, have it debated at Second Reading and have it go through parliamentary procedures.
As matters stand, to a considerable extent we wasted our time at Second Reading. We wasted the time, which is unforgiveable, of all those who have the responsibility outside the House of looking at the Bill from a professional point of view in order to help us to improve it. Above all, we are wasting the time of Parliament by making it impossible for us to give proper consideration to the Bill. I suggest that the proper procedure would be for the Government not to pursue this Motion today. They should take back the Bill and put in their own amendments so that they have a Bill of which they are proud and which represents their considered view. They could then bring it before the House for First Reading, Second Reading, Committee and later stages.
If the Government will do that I shall give an undertaking that the Opposition will give the Bill the fullest, most careful and sympathetic consideration. It is a Bill with which we largely agree. Large parts of the Bill are uncontroversial. In the interests of proper legislation and in the interests of the prerogatives of this House the proper course is for the Government to take back the Bill and to withdraw the Motion.
§ Baroness Blatch
My Lords, first, I apologise unreservedly for the number of government amendments that have come forward since the Bill was originally printed. Secondly, I must inform the House of the action I have taken since those amendments came forward. It must be said that many of those amendments are technical, drafting amendments which simply put right the text of the Bill. At the time the number of amendments was known a final date was given on the amendments coming forward, which was well before Christmas. At every stage the text of the amendments, qualifying notes to the amendments and Notes on Clauses were sent to the noble Lord and his colleagues, to the noble Baroness, Lady Hylton-Foster, and her colleagues and to the noble Lord, Lord Tordoff, and his colleagues, as well as to my own colleagues. All noble Lords who spoke at Second Reading were notified in detail about those amendments.
In view of the action taken and in view of the large number of amendments which have subsequently come forward from noble Lords, I commend the Motion for the House to resolve itself into Committee on the Bill.
§ Lord Cledwyn of Penrhos
My Lords, I listened, as I always do, with care and respect to the noble Baroness who is very experienced in this field. We feel deeply dismayed that the Government have once again placed the House in a most difficult position. As noble Lords in all parts of the House realise, we have a great deal of experience of important Bills coming before this House on which large volumes of amendments are submitted at a very late stage. This is one of the worst cases, if not the worst, that I have come across. Eighty-seven pages of new amendments have been tabled at this stage.
1266 I should like to put some questions to the noble Baroness. As my noble friend reminded her, the Bill has been with the Government for well over 12 months. Why has there been this delay in changing the Bill? What is the reason? Can she explain why the Government have taken 12 months to make up their minds that changes of this dimension must be made? The noble Baroness told the House—it is a common enough ministerial comment—that the amendments are in the main technical. We know that many of them are technical. But what are the great issues of principle involved in the changes? The House will want to know that before it can agree to go into Committee.
§ Baroness Blatch
My Lords, I have had the closest contact on this Bill—written and verbal contact—with colleagues on all sides of the House and all that contact on these amendments was made well before Christmas. No amendment has come forward since then. It would have been common courtesy to have at least told me well before this moment of the grievance that has been harboured by noble Lords opposite. An open invitation to my office, to me and to my officials was extended to the noble Lord, Lord McIntosh, and to all other noble Lords who spoke in the Second Reading debate. I have had long and detailed correspondence with them on many of these amendments. As to qualifying the amendments, in addition to sending the amendments, the Notes on Clauses and qualifying notes, I also sent a list categorising the nature of the amendments and setting out whether they were technical amendments, whether they sought substantially to change the text or whether they dealt with only minor issues.
Having apologised unreservedly for the number of amendments, I believe that I have taken a number of steps which make it possible for the Bill to be discussed today. Therefore. I commend the Motion.
§ Lord McIntosh of Haringey
My Lords, I hope the House will note that in nothing that I said did I accuse the Minister of discourtesy. Not a single gesture or word did I use which accused her of discourtesy. She is absolutely right in saying that, once the Bill had been published and had received its Second Reading, she took every measure possible to inform my colleagues and I, and colleagues in other parts of the House, about the nature of the amendments and indeed to apologise for the number of amendments. However, that does not resolve the question.
I am sorry that the noble Baroness should feel that it is a discourtesy on our part to raise the matter now. We are not doing it on our own behalf; we are doing it on behalf of all those people in the country who are vitally interested in this Bill and are concerned that Parliament should give it proper consideration. It is one thing to inform the Official Opposition and to inform other opposition parties about the nature of amendments but quite another to allow all those in the planning profession, those involved in agriculture and with land ownership and those involved in the law—many important legal matters are involved in the Bill—to prepare amendments and to express their concerns on a Bill which does not represent the Government's thinking. It is on their behalf that I 1267 confirm that it would be wrong for the Government to pursue the matter now and that it would be right for them to present a Bill which represents their thinking. I make one last appeal to the Minister. I ask her not only on behalf of Parliament and this House but also on behalf of all those to whom we are responsible to think again and to consider taking back the Bill.
§ Lord Renton
My Lords, in view of what has been said by noble Lords on the Opposition Front Bench, I think that we should bear in mind that we are concerned with whether we should proceed with the first day's business on the Bill. The Government have set a modest target which so far as I understand it extends to Clause 16. Moreover, of the 109 amendments which have been set down, the great bulk of them have been tabled either by the Opposition or by noble Lords on the Back Benches on this side of the House. We have had since mid-December to consider what we want to do with the first 16 clauses of the Bill; we have decided and we know what we want to achieve. In the circumstances, I suggest that we get on and deal with the first day's proceedings on the Bill.
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD AYLESTONE In the Chair.]
§ 4 p.m.
§ Lord Norrie moved Amendment No. 1:
§ Before Clause 1, insert the following new clause:
§ ("Assessment of Environmental Effects
.—(1) The Secretary of State may make regulations under subsection (2) below establishing standards, objectives or requirements regarding the assessment of the likely significant effects on the environment of any project, plan, programme or policy as defined in subsection (4) below prior to the relevant approval or consent under the provisions of the principal Act, and to ensure the implementation of any obligations of the United Kingdom under the Community Treaties or international agreement to which the United Kingdom is for the time being a party, relating to environmental assessment, or in relation to any relevant enactments.
§ (2) Without prejudice to the generality of subsection (1) above, regulations made under this subsection may—
- (a) make provision for the assessment of the effects on the environment of any project, plan, programme or policy as required by any relevant obligations of the United Kingdom under the Community Treaties or international agreement to which the United Kingdom is for the time being a party, and/or as the Secretary of State considers necessary;
- (b) specify which projects, plans, programmes or policies shall be submitted to environmental assessment;
- (c) establish criteria and/or thresholds regarding the application of 2(a) and (b) above;
- (d) establish minimum requirements and standards for environmental assessments, including information concerning environmental effects submitted to the relevant authority.
§ (3) The Secretary of State shall establish and maintain an Office of Environmental Assessment to—
- (a) monitor and review the quality of all environmental assessments under the Town and Country Planning Acts, including information concerning environmental effects submitted to the relevant authority;
- (b) require the relevant authority to ensure the adequate fulfilment of the requirements of this section.
(4) In this section—
project" means a development project;
plan" means a local authority Structure, Local or Unitary Development Plan;
programme" means a series or group of projects;
policy" means any policy prepared by a relevant authority for the purposes of the Town and Country Planning Acts;
environmental assessment" is the process of assessing the likely significant effects of a project, plan, programme or policy on the environment prior to the relevant approval or consent.").
§ The noble Lord said: In moving this amendment I make no apology for explaining the shortcomings of the present system of environmental assessment in some detail. As I said on Second Reading, I believe that the Government have missed a great opportunity in this Bill to move environmental assessment forward in an imaginative way. The proposed new clause, which is supported by Members on both sides of the Committee, would go a long way towards putting improvements in place.
§ Given the fact that the Government announced last September that there would be a "green minister" in each department, surely they must recognise the need to place the environment at the head of all decision-making. The best way to achieve that aim would be to improve environmental assessment across the board. We need consistent implementation, quality control and monitoring of EA across all sectors, from transport to forestry and from town and country planning to energy and agriculture. Such consistency is surely lacking at present, especially in the forestry and agricultural sphere. Indeed, implementation is decidedly limited. Ideally, we should have an independent agency to oversee the whole process. Such a system is successfully in place in the Netherlands and it is desperately needed here. However, the Bill addresses only the town and country planning system. Therefore we must confine ourselves to that aspect for the time being.
§ What then would the proposed new clause achieve? First, it would place EA firmly into primary legislation for the first time. Such a system as EA should, I believe, be implemented through more robust means than the very limited secondary legislation under the European Communities Act 1972, as is currently the case. However, more important is the fact that primary legislation would remove a strait-jacket which currently bedevils the application of EA.
Before I continue, I think that it is worth recalling the words of my noble friend in responding to the debate on Second Reading. She said:
Existing regulations made under the European Communities Act 1972 fully implement the directive and require environmental assessments for projects likely to have significant effects on the environment. We consider that the procedures are generally working satisfactorily".—[Official Report, 27/11/90; col. 942.]
I believe I can show the Committee that in reality my noble friend's statement needs considerable qualification.
§ Under the European Communities Act 1972, regulations can be made only to implement directives strictly to the letter. The EA directive has two annexes specifying which projects may be subjected to EA, 1269 either on a mandatory or on a discretionary basis. But if a type of project does not appear in the list, EA cannot be made a requirement—even if it may have very significant effects upon the environment. That is the strait-jacket to which I referred.
§ The likelihood of significant environmental effects should, strictly speaking, be the test of whether EA is required. In fact, that is very much the spirit of the directive. However, implementation under the European Communities Act means that there are some projects which, even though they may have significant effects on the environment, are escaping the proper scrutiny which EA can bring.
§ Perhaps I may give the Committee some examples of the types of projects which are escaping the net. One type of project which has been omitted from the directive is that which concerns drinking water treatment plants. Waste water treatment plants are included in one of the annexes, but not drinking water plants. That is clearly an omission, but a series of applications in and around the Peak District National Park over the past few years have illustrated only too well that such developments are likely to have significant environmental effects, especially where sited in or close to sensitive environments such as national parks.
§ Such developments include the siting of covered reservoirs, lagoons, buildings, pipelines and service roads in open countryside. The Peak Park Joint Planning Board, not surprisingly, wanted EAs carried out on such proposals, but the Secretary of State ruled that EAs could not be required under the EC directive and the regulations. Of course they could not be; but if the Secretary of State had powers in primary legislation to make regulations to require EA where he considered it necessary, that would not be a problem. Indeed, it would provide just the flexibility that is needed. That is what the proposed new clause would achieve. I should add that we are not concerned only with drinking water treatment plants. The same is true of freshwater fish farms, golf courses, some leisure complexes and no doubt other types of development which are yet to come to light. The proposed new clause would provide the Secretary of State with the flexibility to tackle such anomalies as and when they arise.
§ We should not have to wait for amendments to the directive every time a problem occurs. That course of action may take years. After all, that is why the directive makes specific provision under Article 13 to allow member states to apply EA more widely or stringently than the directive. However, we are unable to take advantage of Article 13 in this country because the Secretary of State has no powers under the present regulations to allow us to do so. It requires a specific power in primary legislation to allow him to make the appropriate regulations, which would go beyond the provisions of the directive.
§ Perhaps I may now move on to deal with the need to extend EA beyond projects to plans, programmes and policies. I shall not detain the Committee for too long on this issue as I have made the argument on numerous occasions during the passage of the 1270 Environmental Protection Bill last year and on Second Reading. The proposed new clause would allow the Secretary of State to require EA for local authority forward plans or where he considers such an assessment to be necessary. Again, that is a discretionary power, but it is at the plan, programme and policy level that the likely siting of projects is determined. Therefore, there is every reason why such plans should be assessed for their environmental implications at the earliest stage.
§ Finally, I return to quality control. I know that my noble friend will say that her department has research in hand concerning the issue, but, as I mentioned in my opening remarks, we need significant proposals if we are to secure truly effective quality control and monitoring. Within the town and country planning system, and, indeed, outside it, many environmental statements are of very poor quality. While some are improving, I have to say that it is because of pressure from environmental organisations and not as a result of guidance from the Department of the Environment. It is interesting to note that a study last year by Manchester University showed that only one quarter of environmental statements sampled could be considered satisfactory. That is a terrible indictment. There clearly needs to be a system which ensures that the methods of assessment and the documentation come up to scratch.
§ The amendment would establish an office of environmental assessment to oversee the system under the Town and Country Planning Acts. It need not be a quango. It could be a small unit of officials within the Department of the Environment charged with overseeing and reviewing the EA procedures. I shall be interested to hear my noble friend's reaction to such a suggestion.
§ In summary, I see three main objectives of the new clause. The first is to place EA firmly in primary legislation and to close the loophole through which some projects are slipping. The second is to establish a small unit within the Department of the Environment to improve quality control. The third is to allow EA to be extended beyond projects to plans and programmes. I believe that I have shown that one would be hard put to say that the present regulations implement the directive fully. It is clear that EAs are not required for all projects likely to have a significant effect upon the environment. The current regulations prevent that. Neither does the evidence suggest that the procedures are working satisfactorily. That is why I am moving the amendment, which would give EA the priority that it deserves. I beg to move.
§ Lord Renton
My noble friend Lord Norrie has with his usual care and thoroughness explained the reasons for this important new clause, which I warmly support. It may be relevant to mention that it has been inspired by the Council for the Protection of Rural England. It is welcomed—I discovered this only this afternoon in a document that it sent to me, and may have sent to other Members of the Committee—by the Association of County Councils, which says:The principal need which the Association perceives therefore is for a new Statutory Body to make regulations 1271 requiring environmental assessment quite independently of the specific obligation imposed upon the United Kingdom Government by the Directive".Two points arise on that statement. The first is that the association does not make clear what kind of new statutory body is required, but I agree with my noble friend that it does not need to be a new quango. It is something which should inevitably be part of the policy of the Secretary of State for the Environment and guided by his department. That is why it is said in the new clause that that should be the case.
Another point that arises out of that statement is that the association says that there should be an assessment,quite independently of the specific obligation imposed upon the UK Government by the Directive".As I read the new clause, that is just what can be done. Subsection (1) is the relevant subsection. It provides that the Secretary of State in making regulations will establish standards and ensure the implementation of the obligation. But of course his standards can be independent of that obligation. The question then arises of who is to have the responsibility for making the environmental assessment referred to.
I must confess—I hope that it does not embarrass my noble friend or any Members of the Committee if I say this—that I have always been doubtful about requiring those who apply for planning permission for development to make their own environmental assessment because it will often be one-sided and incomplete. The right body to make the environmental assessment is the local planning authority, but it should do so in the light of the guidance laid down by the Secretary of State in accordance with the policy that he evolves. That is the right way to do it. That is what can be done under the new clause. That is all that I need add.
I should, however, like to invite the Committee's attention to one or two of the provisions. In doing so, I point out that the new clause goes a long way towards fulfilling the objectives outlined so ably yesterday by the noble Lord, Lord Ezra, when opening our debate on the environment. The method is different from the one he proposed, but it could potentially cover all the environmental factors which he and other noble Lords mentioned in our interesting debate yesterday.
If we look at the provisions of subsection (2) we find that they are wide, especially when we come to subsection (2) (d), which provides that regulations may:establish minimum requirements and standards for environmental assessments, including information concerning environmental effects submitted to the relevant authorities".I hope that my noble friend the Minister will be able to give a sympathetic answer.
We have tabled the amendment at the start of the Bill because it should have that prominence. Admittedly, the first few clauses are concerned largely with the enforcement of a somewhat different matter from that covered by the first amendment, but I am sure that my noble friend has tabled it in the correct 1272 place. It is an overriding and important question. I hope that it will have plenty of support from both sides of the Committee.
§ 4.15 p.m.
§ Baroness Nicol
We support the amendment. It is worth reminding ourselves of the history of environmental assessment which has got off to a slow start. The idea was first mooted in the Community in 1975. A proposal was made in 1980. In 1981, the idea was still being resisted strongly by the Government, although by that time Members of both sides of both Houses had begun to believe that it was a good thing. However, the Council went ahead and in 1985 the directive was issued, but with a three-year time lapse during which countries could implement it to their own satisfaction. I regret to say that the United Kingdom took until the very last day of the three years before the directive finally came into force in July 1988.
It is a success story, because since then we have all come to recognise the value of environmental assessment. In November 1989, the then Secretary of State, Mr. Patten, made an excellent speech to the 75th anniversary conference of the Royal Town Planning Institute. I should like to quote a little from his speech. He was launching an advisory booklet, which the noble Lord, Lord Renton, may be interested to see, although I am afraid I have been unable to obtain a copy. It is called Environmental Assessment— A Guide to the Procedures. Mr. Patten said:The real key to the success of environmental assessment will lie in the way in which it influences the very character of development proposals. Ideally developers should have the environmental implications of their projects in mind from the earliest days of preparing the scheme".This seems to indicate that the Secretary of State at that time thought it right that developers should produce their own environmental assessments and submit them with their planning applications for the criticism or otherwise of the local authority. I am sure that that is the best way to go about it. He goes on to say:An environmental assessment which is prepared after the project has been designed can only be second best, even if adjustments are made to reduce any damage which might otherwise be done".It is clear from that where the Secretary of State saw the production of the assessment in relation to the development. The rest of that speech, which was very long, reflects an appreciation of the values of environmental assessments. Clearly, it is time that this was reflected in primary legislation. As the noble Lord, Lord Norrie, pointed out, we are handicapped in the proper application of environmental assessment until we have it in primary legislation. He mentioned Article 13 of the directive which says:The provisions of this Directive shall not affect the right of Member States to lay down stricter rules regarding scope and procedure when assessing environmental effects".However, as he said, we cannot make those rules while we rely on regulations. The amendment is therefore within the terms of the directive and would give substance to the Secretary of State's speech which I have just quoted.
1273 The second part of the amendment is seen as essential by most of those directly involved with environmental protection. The Nature Conservancy Council and its successor body which takes over on 1st April are both very much in support of the need for a body to collate, assess and advise on environmental assessment. They are concerned that at the moment they are only consulted on 60 to 70 per cent. of environmental statements. That is quite outside the spirit of the whole exercise. We are glad to support the amendment and hope that the Minister will look kindly upon it.
§ Lord Ross of Newport
I wish to add my support for the amendment. There has been a full debate and most of the briefs with which we have been supplied have been fully quoted. However, the present situation is obviously unsatisfactory. The noble Lord, Lord Renton, quoted from the brief that he received from the Association of County Councils and I wish to quote an earlier extract: "Our member authorities—" that is the local county councils—tell us from time to time of circumstances where it would clearly be logical for the local planning authority to demand an environmental assessment from an applicant, but where this is not possible because the development in question falls outside the strict terms of the legislation. When we [the ACC] ask Central Government to extend the Environmental Assessment Regulations to embrace additional categories of development, we are told that this cannot be done within the terms of the present primary legislation".I know that a review is taking place at the moment and I suspect that we may be given that reply by the Minister. I hope that that will not be the end of it because this is an opportunity to write the requirement into legislation. I have very carefully read the amendment put forward by the CPRE and believe that it covers the position adequately although I know that the ACC has slightly different views. It does not set up a great bureaucratic body, as has been clearly pointed out.
I hope that the Government will be able to take the matter on board or at least give us the assurance that if they are not entirely satisfied, they will come back on Report with a provision that we can write into the Bill. It is wrong and unsatisfactory at the moment and this amendment is supported on all sides of the Committee.
The Duke of Atholl
I wish to ask either the movers or the Government a question about the amendment. Since it would precede Clause I, does it apply to Scotland as well as England and Wales or only to England and Wales?
§ Lord Nathan
I support the amendment and all that has been said about the desirability of incorporating provisions concerning environmental assessments into primary legislation, precisely for the reasons laid out for us by the noble Lord, Lord Norrie.
I refer to the formulation of the environmental statements and the poor quality to which reference has been made in so many cases. Some months ago a group of public spirited people got together with a view to forming the Institute of Environmental Assessment. They asked me to be chairman. In that context I have learned something of the practical 1274 problems that have been confronted. One of the difficulties is that there is no clear statement—apart from the excellent pamphlet to which the noble Baroness, Lady Nicol, referred—about the criteria, the methodology to be applied in the formulation of environmental assessments. Some assistance needs to be secured on that.
It must be remembered that these environmental statements in the ordinary course and particularly the extension of the application of environmental assessment as adopted and proposed by the noble Lord, Lord Norrie, are dealt with at least in the first instance by local authorities. As the position is, they do not receive a large number of planning applications with environmental statements. They do not have the experience and manpower to assess them.
In the short time during which the institute has been in existence we have found that it seems to fill the need felt by local authorities to have somebody to guide them on environmental statements which are presented to them, both as to the methodology that has been adopted and the quality of what is presented to them. We should remember that in many cases a local authority may have received only a couple of environmental statements during its existence and so the officers do not possess the experience to handle the situation.
It seems to me necessary that there should be a body that provides authoritative advice on the methodology in principle and also on whether the methodology applied to an environmental statement is appropriate and complete. I suggest that it is rather absurd that this should be done by an institute funded by public spirited private people rather than by government with whom the responsibility primarily lies. As has been mentioned, the Netherlands environmental assessment body has been commissioned and I have had the benefit of meeting and discussing the matter with its chairman and secretary general. There is no doubt that such a body serves a useful purpose.
It strikes me that in the case of this amendment, which I support both in practice and in principle, the Minister may feel that the idea of extending at this time environmental assessments to plans goes beyond the idea of environmental assessment in the directive. Perhaps we ought to restrict ourselves to getting environmental assessment procedures right in the context of the present requirement rather than extending it to plans and so on, although in the end that would be good. If that is so, it would be helpful if the Minister could say—as I hope she will—"Yes, we agree to the proposals set out in the amendment but we think that we should hold steady on that point".
The other matter concerns funding; there is always difficulty on proposals which involve further government expenditure. It seems to me that if the Minister feels that this is a sticking point, it would be well worth proceeding with the amendment on the basis of the developers paying the cost of the body and the advice which they receive from it, as suggested in 1275 the amendment. It is in respect of those matters that I support the amendment and I shall be extremely interested to hear the Minister's comments.
§ Lord Renton
Is this a good moment for me to answer a question put by my noble friend the Duke of Atholl? The answer is that, as tabled, the amendment does not apply to Scotland, but by one or two consequential amendments to Clause 55 that could be arranged.
§ 4.30 p.m.
§ Lord Wade of Chorlton
First, I should like to say that I have tremendous sympathy with the thoughts of those who have brought forward this amendment. It is right and proper that all developments should be considered very sympathetically from the environmental point of view. We all have to live and see the environment, so it is one of the most essential considerations.
When planning authorities meet, they have a wide range of aspects that they have to consider in reaching their decisions. It is not just the environmental issues. As one of our friends in the other House said recently, you cannot put a ring-fence around all these issues. We have to consider homelessness and the need for houses, business, population changes and changing demographic structures in local communities. All these matters have to be considered by the planning authorities; and we know that they already consider environmental aspects, which is right and proper. But it would not be right to put this amendment into the Bill. I am sure that the Minister already makes it quite clear to planning authorities that environmental issues are important and have to be considered.
From my experience I know that environmental issues play a very important part in the decisions of planning authorities. They have the planning process to go through and all those concerned with the environment have the opportunity to voice their thoughts when these matters are considered in relation to local plans.
This amendment will not have a great impact on the environment. It will have a much greater impact on the cost of development. It will be another process to slow up development. When we had the Second Reading of this Bill, many noble Lords said that its importance was that it speeded up the planning process; yet in the first clause something is being brought forward which will slow up the process. Therefore, although I sympathise very much with the thoughts behind this amendment I cannot support it. I trust that my noble friend the Minister will not accept it because the Bill as it stands is the right and proper way to proceed.
§ Lord Skelmersdale
Before my noble friend who has just spoken rose I thought that, in the terms of 1066 and all That, we were in the process of agreeing that environmental impact assessments, especially for projects, was a phenomenon that had, so to speak, come to its time. As the noble Baroness, Lady Nicol, said, we have been creeping along on this for the past 15 years. There is no question about that. My noble 1276 friend Lord Wade says that planning authorities should consider environmental issues, but how on earth are they to do that unless they have the information upon which to carry out that task? I readily accept that they do this to the best of their ability at the moment, but it is only to the best of their ability.
I should like to see a scheme whereby there is a minimum sum for a project to attract an environmental impact assessment and that that should be statutory in primary legislation—almost certainly in this Bill. But where I find myself parting company with this amendment is in regard to plans and policy. The noble Lord, Lord Renton, would be the first to admit that the normal way of giving instructions from central government to local planning departments is by means of guidance and I do not think that we have yet reached a point where we can depart from that very necessary and very well-understood way of operating.
§ Lord Renton
I wonder whether my noble friend has perhaps overlooked the fact that there is a European directive requiring us to have something of that kind in our law. If that is so, is it not right that we should have something on the lines of this amendment which would enable it to become part of the law, with the Secretary of State issuing regulations in accordance with national policy?
§ Baroness Nicol
Perhaps I may give a small example of why we need the amendment. The directive as originally translated made an error. In relation to fish farming it referred only to salmon and not to trout. That was an error in translation but because that is how the directive came to us we are unable at the moment to change our own regulations in order to encompass trout farming when the National Rivers Authority, and any other body connected with the subject, requests that trout farms should be brought under the other legislation. We cannot do that as matters stand. That is just a small example of why we need primary legislation.
§ Lord Skelmersdale
I am not sure whether those words were addressed to me. Certainly the noble Baroness, Lady Nicol, was looking at me directly when she spoke. As I have already made clear to the Committee, I have absolutely no problem in attracting environmental impact assessments to projects, whether they are fish farming projects or any other projects, as long as they need planning consent in the first place; but I should need to know quite a lot more about the effects of the European directive and the subsidiary legislation under the Treaty of Rome to understand whether it is possible to divorce the project and programme parts of the amendment from the policy and plan parts of the amendment. However, I am sure that my noble friend on the Front Bench will be able to settle that question to the Committee's satisfaction.
§ Lord Wade of Chorlton
My noble friend asked me how it is possible to have an assessment without knowing the standards. My reply is that one of the systems for which I certainly have great respect is the electoral process. It may be that in some areas of the 1277 country, run by a certain type of authority representing a particular group of people, there are different ideas about the environment from those in other parts of the country. That is a right and proper system to have. The environment in a particular area will be decided by the people who live in it and those whom they elect as representatives. They will produce the sort of environment that is wanted. The position will not be the same everywhere, and that is right and proper. In some areas there will be different priorities and housing, business or shopping may be considered more important, while in other areas the feeling is different. It is right that people should be able to adapt to what is wanted in certain areas rather than have standards which are not right for everybody.
§ Lord Renton
Is my noble friend saying that a local planning authority, because it thinks that people in the area want it, can do something which is contrary to good environmental standards and, indeed, is in bread of what are rapidly becoming internationally accepted standards? Surely that would be very bad.
§ Baroness Blatch
It might be convenient for me to respond now to the comments that have been made. I start by congratulating my noble friends on tabling this new clause in such a way that we have started this Committee stage with an important debate on environmental issues. Environmental assessment is becoming a vital decision-making tool, designed to ensure that essential environmental information is in mind when decisions are made which are likely to have significant environmental effects. The Government have welcomed this development; we implemented the European directive on the subject more speedily and more fully than most other Community member states, and it remains a policy priority to ensure that these provisions operate, and should operate, effectively.
This new clause seeks to address a number of issues that have arisen since the regulations were made in 1988 under the powers provided by the European Communities Act 1972 for implementing Community obligations. The first such issue is the argument that the 1972 Act in some way inhibits proper provision for environmental impact assessment. I do not agree. The EC directive requires EIA for a very wide range of projects. It is true that some types of development which could have significant environmental effects are not mentioned in the directive, but they are few and far between. The custom is already growing for developers to provide environmental statements even when EIA is not formally required.
Many Members of the Committee have mentioned the need to require EIA for projects which are approved by the private Bill procedure. The Government have already accepted in principle the Joint Select Committee's recommendation that the Chamber's standing orders for private business should be amended to require EIA in appropriate cases. My department has been working with the Chamber authorities on the details. I understand that the Lord Chairman will be tabling an appropriate amendment to standing orders shortly.
1278 My noble friend Lord Norrie was concerned about installations and projects which are not covered by the directive. He gave the example of the treatment of drinking water in the Peak District Park. Wherever environmental impact assessment does not apply, the planning authority involved must still take all material considerations into account.
It has also been suggested that we are not fully meeting our international obligations with our present provisions. That is not so. The various EIA regulations fully implement the EC directive. The European Commission, which looks at member states' implementing provisions with a highly critical eye, accepts this. It has sought changes to the legislation of some other member states (including states with good environmental reputations like the Netherlands), but not of our legislation.
It is true that the Commission has queried the application of the directive in a number of individual cases, but in all of them we can show that we are abiding by the directive's letter and spirit. If it could be shown that we had failed to implement the directive in any particular way, Section 2(2) of the 1972 Act provides all the powers necessary to put the matter right.
There are suggestions that our legislation is insufficient to enable us to meet other existing or prospective international obligations relating to EIA. It is true that the European Commission is considering proposals for amending the existing directive. Should such amendments be adopted, the 1972 Act would enable their implementation. The only other international obligations which may arise in the immediate future are those under the convention on EIA in a transboundary context on which negotiations under the aegis of the United Nations Economic Commission for Europe are almost complete. I am advised that no legislation going beyond existing provisions would be necessary to meet the obligations arising under this convention.
Another set of arguments relates to the inadequacy of some environmental statements provided under the present regulations. To deal with this the new clause would enable the Secretary of State to establish minimum requirements and standards and would require him to establish an office of environmental assessment which would have to check all statements and see to it that those standards were complied with. This would be a recipe for wasteful duplication and delay. The delay would be caused by the mere fact of environmental statements having to be considered by a body separate from the decision-maker. The EIA office's work on assessing the document would involve similar analysis to that which planning officers already undertake. The country is not so well endowed with qualified staff as to be able to afford such duplication.
Of even more concern is the fact that if an environmental statement is only held to be valid if it complies with some statutory criteria, this would encourage litigation about the content of the statement. This would both add to delays and divert attention from the real issue, which is whether the 1279 proposal to which the environmental statement relates should go ahead. For these reasons we do not believe that the proposal in the new clause would work.
We do, of course, acknowledge that some environmental statements are inadequate. My noble friend Lord Norrie referred to the research which has been and is still being carried out at the environmental impact assessment centre at Manchester University. Although the research that my noble friend referred to was based on a small sample of cases, current research is likely to show that there is some inadequacy in this area.
However, in our view it is possible to secure improved quality without the review office proposed in the new clause. Our aim is that it should be generally recognised that authorities will not allow themselves to be fobbed off with inadequate or biased statements and that thorough, accurate and well balanced environmental statements will help them to come to a quick and well-informed conclusion about a proposal. In part it is for responsible developers and their consultants to set high standards. They will, I hope, be aided by the recently established Institute of Environmental Assessment and by the proposed association of environmental consultants. The Government can help by giving advice on good practice in the preparation of environmental statements. In that connection I have managed to obtain a copy of the document to which the noble Baroness, Lady Nicol, referred. I understand that there is a plentiful supply of copies of the document at Her Majesty's Stationery Office. I further understand that a reprint has already been ordered. Therefore, it will continue to be widely available. The White Paper, This Common Inheritance, indicated our intention to issue such guidance following some studies. We hope to be able to commission those studies soon.
The case for the new clause also reflects current interest in the possibility of extending the use of EIA, which currently applies to decisions about proposed development projects and to decisions about policies, plans and programmes. It is suggested that the enactment of the clause will make this extension easier to achieve. But this is by no means certain. Discussion of ways of taking environmental considerations into account in policy-making is still at an early stage. I believe the noble Lord, Lord Nathan, made that point.
The White Paper foreshadowed studies leading to the issue of guidance to Government departments. This work is well in hand. Also in hand are discussions within the European Community where the Commission is considering the possibility of a directive on the subject. In addition, the UN Economic Commission for Europe has established a task force on the application of EIA principles to policies, plans and programmes. My department is taking a full part in all these discussions. What has become clear so far is that the existing EIA procedures are not well adapted for application to decisions of this kind.
1280 Decisions on policies, plans and programmes are much less clear-cut—I believe my noble friend Lord Skelmersdale made that point—than decisions on projects and are often made in the context of much less formal procedures. At present it is simply impossible to say what statutory provisions, if any, will be needed. It is premature to make this provision.
I have noted that the new clause now before us is a revision of the one originally tabled by my noble friends which they were advised was too wide in scope for inclusion in this Bill. The revised clause is therefore necessarily limited to decisions made within the planning system. But EIA does of course go much wider, as the original clause recognised. Even if I were in a position to accept the principle of the clause, I would doubt the value of a provision limited to planning cases.
As I said at the start, the Government regard EIA as an important development, and one that we wish to see furthered. We share many of the objectives which it is argued this clause would achieve, but the clause itself would give rise to tangible disadvantages in the form of greater delay and bureaucracy.
I shall certainly study most carefully all that has been said in the debate. My door is open, as always, for any discussions that need to take place between the Committee and Report stages of the Bill. However, I hope that I have said enough to persuade my noble friends that we are tackling the problems which the new clause would address. I hope they will feel able to withdraw the amendment.
§ Lord Norrie
I thank the Minister for her lengthy reply. I, too, wish to study in detail what she has said. Will my noble friend spare time for further discussions before the next stage of the Bill?
§ Baroness Blatch
I gave a direct invitation for discussions. However, I must add that it goes without saying that such discussions are offered without prejudice or commitment.
§ Amendment, by leave, withdrawn.
§ 4.45 p.m.
Lord Renton moved Amendment No. 2:
Before Clause 1, insert the following new clause:
§ ("General duty of enforcement
§ . A local planning authority shall exercise its powers so as to ensure compliance with planning controls in their area.").
§ The noble Lord said: Amendment No. 2 is simplicity in itself. It needs no explanation. One has only to read the two lines of the amendment to realise that it is unimpeachable. However, the question is whether it is necessary—I am sure it is desirable—because we should not insert into statutes unnecessary clauses.
§ I should like to make a confession to the Committee. There was a committee, of which I had the honour to be chairman, which recommended that especially when you have rather detailed provisions in a Bill the intention of Parliament should be made clear by a general statement. Here we have a number of 1281 detailed provisions. I think there are 11 applying to England and Wales and about the same number relating to Scotland, although just here at this moment we are referring to England and Wales. Those 11 clauses refer to enforcement.
If it were clearly stated at the outset, as Amendment No. 2 says, that,
A local planning authority shall exercise its powers so as to ensure compliance with planning controls in their area",
that would be a pointer to the intended effect of the more detailed provisions that follow. The matter is so simple, so plain, that I do not think I need say any more than that. I beg to move.
§ Lord Norrie
This is a most important amendment, and it underpins all of the Bill's welcome proposals to simplify and strengthen the enforcement of planning control. It is now widely recognised that there are problems with the current enforcement procedures. However, I suggest that these cannot all be put down to administrative or technical difficulties of the kind that this Bill is intended to reduce. Too often it is the reluctance of local authorities to take action, even when the necessary enforcement procedures are readily available, that brings the planning system into disrepute. No matter how gross the breach of planning control or how clear the evidence of abuse, there is no compulsion on a local authority to take any action, and too many authorities turn a blind eye to breaches of control.
I should like to give the Committee two examples of the problem that this amendment would reduce. Planning permission for limestone extraction at Coolscar Quarry in the Yorkshire Dales National Park was given on the express condition that its special limestone should be supplied principally to one company. Planning permission in such a sensitive site was only granted on the basis of this condition.
However, although it became clear in 1988 that the limestone being removed from the site was not being supplied to the company specified, enforcement action was not taken to enforce the conditions. Since enforcement action has not been taken, a quarry that would not have been given permission to supply ordinary stone has been able to do so in the heart of one our National Parks.
A second example concerns a dwelling known as Fallbrook House, granted planning permission in the green belt by Kirklees Metropolitan Council in 1981. Permission was only granted on condition that the dwelling was occupied by someone engaged in agriculture. In fact, a substantial dwelling was erected with bur bedrooms, a swimming pool, and a gymnasium set in landscaped gardens but no agricultural activity was carried out.
§ Lord McIntosh of Haringey
Is the noble Lord suggesting that no agricultural worker should be allowed to have a swimming pool or substantial grounds?
§ Lord Norrie
Not at all. But I think this may be going over the top. When considering an application to have the special condition removed, the Minister of Agriculture stated: 1282This type of property is far more luxurious than any farm worker could afford.That probably answers the question from the noble Lord. Despite the absence of agricultural activity and the luxurious nature of the property, no enforcement action has been taken by the authority to ensure that the agricultural condition was met. The result is a substantial house in the green belt which would not otherwise have been given permission.
These are just two examples among the many problems that are being experienced across the country. My noble friend, who kindly wrote to me following the Second Reading, indicated in her letter that the Government did not think that the case for compulsory enforcement had been made out. However, she also appreciated that a problem exists. This amendment places a general duty on local authorities to take enforcement action. This is not an onerous task, but it will ensure that those authorities that are failing to meet up to the public standards expected of them actually toe the line. The ombudsman and the courts should take firm action against those who do not.
I urge my noble friend when she replies to accept this amendment as providing the balance between discretionary powers and compulsory enforcement that the Government desire. I am aware that the local authorities are keen to see a breach of planning controls made a criminal offence, and I have a great deal of sympathy with their intentions. However, setting aside the merits of the case for criminalisation, they must accept that greater powers to local authorities should also mean that they undertake to fulfil their enforcement obligations more fully.
This amendment would strengthen the backbone of local authorities in resisting the often subtle breaches of the planning system that can cause so much damage to our countryside. The creeping industrialisation of agricultural holdings, the improvement of barns and stables to desirable residences, and the growth of unauthorised activities alongside approved developments are all examples of problems being faced today across the countryside.
A duty to enforce planning controls would resist these trends. Importantly it would in the long run deter them from ever occurring, and thereby ease the workload on local authorities. It would encourage high standards all round, maximise the benefits of the Bill's other reforms to the enforcement provisions, and provide the boost in public confidence that the planning system urgently needs. I commend this amendment to the Committee.
§ Lord Airedale
We were told that this amendment was unimpeachable. I do not know about that. It does not even make up its mind whether a local planning authority is singular or plural.
§ Baroness Hollis of Heigham
We support this amendment. The Bill, following the Carnwath report, rightly seeks to make the planning process fairer, simpler, more predictable and more reputable, and that is why this clause, as the noble Lord, Lord Norrie, said, is so important. It seeks to achieve precisely that. It would make planning less whimsical, less arbitrary, 1283 because people would know that planning controls were being enforced. Carnwath, after all, has reminded us that a third of applicants were aware that they were committing a breach of planning law before being told so by the local authority, and that a half went ahead because they knew that planning permission would be refused.
This clause is the point at which the planning system and the legal system interact. As has already been said, local authorities would still retain their full discretion about planning judgments, especially with the additional tools of certificates of lawful use—one of the clauses in the Bill —and, if the amendment is agreed, with retrospective planning permission. Therefore, planning discretion would be retained, but what this amendment would do would be to seek to end discretion on legal grounds. That is that all would come within the law, and that it should apply equally to all.
The ombudsman has recognised—and Carnwath in his report has quoted him as saying—that the public should not be denied the protection of effective planning, whatever pressures local authorities are under. It is not an unacceptable imposition on local government. Already such a clause applies to the Control of Pollution Act 1974 regarding nuisances. It already applies to the Environmental Protection Act 1990 concerning litter.
It says, in other words, that local authorities retain proper discretion on planning controls and planning matters, but once that decision has been taken, the law should apply fairly to all. As the noble Lord, Lord Norrie, has said, if that is known, planning controls will stick, it will reinforce the standing of the local plan, it should reduce breaches of planning control, and help to restore to planning a proper integrity. I hope that the Minister will support the amendment.
§ Baroness Blatch
The effect of this amendment would be to place a general duty, as has been said, upon all planning authorities to exercise their development control powers, including their enforcement powers in Part VII of the Town and Country Planning Act 1990, so as to ensure compliance with planning controls in their area.
While the Government sympathise with the spirit in which this amendment has been tabled, we have concluded that it is unnecessary to impose on planning authorities any general duty of enforcement. The regime for enforcing planning control has traditionally, since 1948, been flexible and at the discretion of each local planning authority, subject to Ministerial guidance on planning control policy. We think this common-sense approach should be maintained. Its great advantage is that it enables each planning authority to tailor their response to a breach of control to suit the particular circumstances. Many suspected breaches of control are settled quite informally, by discussion between the owner or occupier of the land and the planning authority's enforcement officer, without a formal report to the planning committee.
1284 The development control system is complicated because it caters for an enormous range of development of land, and allows a reasonable degree of freedom (for example, by way of the permitted development rights provided in the General Development Order) for owners and occupiers of land to carry out small-scale development without the need to obtain planning permission.
If there is doubt whether planning permission is needed, it is usually resolved satisfactorily by discussion between the landowner or occupier and the planning authority. If an impasse is reached and unacceptable development is carried out, effective enforcement powers, which are being greatly strengthened by this Bill, are available to the planning authority.
In the Government's view, the present enforcement regime achieves a reasonable balance between the desirability of fostering acceptable development (even if it has been carried out without prior planning permission and has to be authorised retrospectively) and the need to maintain firm control over development which is plainly unacceptable. We think this is the most satisfactory approach, subject to the amendments that we are inviting the Committee to approve in Clauses 1 to 11 for England and Wales and Clauses 27 to 36 for Scotland.
We think that by using the words,so as to ensure compliance with planning controls in their area,the amendment would alter the balance of the present enforcement regime by creating a presumption that the planning authority should always consider taking enforcement action whenever a breach of planning control occurs, however minor or technical the breach might be in practice. That would impair the flexibility of the system. Some planning authorities might come under great pressure to take formal enforcement action even when discussion would resolve a planning control problem satisfactorily. It is important to remember that, on average, planning authorities now resolve 19 out of 20 practical enforcement problems without the need for formal enforcement action. Therefore, we should not interfere with that successful approach.
We appreciate the spirit in which the amendment has been tabled and we shall be issuing ministerial policy guidance about taking enforcement action following enactment of this Bill. We think that is the better approach rather than to impose a new and potentially onerous burden on all planning authorities. The issue here is flexibility of discretion for local planning authorities, with the firmness to act where it is appropriate to act, versus the rigidity of compulsion in every case.
I hope that with that explanation my noble friends will feel able not to press their amendment.
§ 5 p.m.
§ Baroness Hollis of Heigham
Before the Minister sits down, perhaps I may ask her to comment on the amendment as it stands to ensure compliance with planning control, not enforcement; in other words, the 1285 comments the Minister made about negotiations are entirely covered by the wording of the amendment. No one is seeking legal enforcement if it can be done by prior negotiation. What it does rule out is the possibility to turn a blind eye where this is regarded as improper by many members of the public.
§ Baroness Blatch
If this amendment finds it way on to the statute book "compliance" will mean compliance in every sense to the letter and will automatically invoke the full weight of this measure.
§ Lord Renton
This is an extraordinary situation. We spend weeks and weeks trying to get a planning law which meets the needs of the nation, and we have elaborate procedures for planning controls to be imposed by local planning authorities. Then what happens? My noble friend has made it perfectly clear that there is discretion and flexibility. Some people are made to obey the law; others are not. What is the purpose of Parliament?
However, I have no wish to create a situation which is either burdensome or bureaucratic. I was hoping merely to clarify the law. I also hoped there would be more respect for it in the way some branches of the public service, namely local authorities, carried out their duties to comply with the law and get others to do so. But if we want to continue with the present nonsensical situation, so be it. I shall withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 [Planning contravention notices]:
Lord McIntosh of Haringey moved Amendment No. 3:
Page 2, line 1, after ("may") insert:
("(a) require the person who is carrying out or has carried out the operations, or as the case may be is using the land for the purpose in question to carry out such steps as the authority may specify, or cease such activities as it considers it ought to cease, to secure compliance with planning control; or").
§ The noble Lord said: In rising to move Amendment No. 3 I am pleased to note that the noble Baroness, Lady Gardner, my noble friend Lady Castle and the noble Lord, Lord Ross, have agreed to have their Amendments (Amendments Nos. 19 to 21 and No. 12 respectively) grouped with this amendment. If I may, I shall speak to those amendments as well, because the intention behind all of them is similar.
§ All of us are aware—if we had not been aware before, the District Planning Officers' Society will have made sure we are aware by now—of the extent to which the planning process is still being flouted in many parts of the country by a small minority of persistent offenders who put planning law to scorn by using its weaknesses to erect buildings, demolish buildings, use land which should not be used for a purpose or in general to do things which are not in accordance with planning law, ought not to be within the planning law and they know are not in accordance with planning law.
§ I am sure that other noble Lords who have seen the evidence placed before them by the planning officers most affected by this flouting of the law—I say "most affected", but I suppose the neighbours are most 1286 affected and the planning officers have to try to deal with it—will want to give more graphic examples than I think it is appropriate for me to give. But there is no doubt that the law at present can be avoided for a number of years. Examples have been given of avoidance for periods of up to 10 or 15 years by those who are determined to do so and who use all the excuses available to them under existing planning legislation.
§ This Bill goes some way to dealing with that problem. It introduces in its early clauses the whole concept of planning contravention notices and makes provision for enforcement of conditions and injunctions restraining breaches of planning control. It provides that breach of an injunction restraining a breach of planning control shall itself be an offence. Those on the ground and those round the country who are concerned on a daily basis with the enforcement of planning law do not accept that the Government have gone far enough; indeed, they do not accept that the Carnwath Report went far enough in this matter. What they say—and I think there is strong argument in support of it—is that the breach of planning control itself, not the breach of the injunction, ought to be the offence. In that way we could get much more quickly to the offence and make sure something was done about it and that either the breach of planning law was not pursued or that the nuisance was removed at the very earliest stage, rather than wait for all the injunction procedures.
§ There are a number of ways of doing that. The noble Baroness, Lady Gardner, has tabled four amendments which involve introducing four new clauses into the Bill. Her amendments do indeed achieve the objective which she wants to achieve; in other words, they achieve what I want as well, which is that a person who initiates or carries out development so as to constitute a breach of planning control shall be guilty of an offence.
§ I suggest there are two difficulties about them and that my amendment is preferable in two respects. The first is that to my mind the noble Baroness's amendment sits somewhat uneasily beside Clauses 1 to 3, which provide an alternative method of enforcement. I do not think it right to leave the Government's proposal for enforcement alongside four new clauses providing an alternative method without indicating which of the two is preferable. The second one is more important. What is provided under the amendment of the noble Baroness, Lady Gardner, would be that unpleasant word "criminalisation". In other words, what happens is that the breach of planning control becomes a criminal offence and the offender is liable on summary conviction to a fine not exceeding £20,000.
§ I feel that we should always be chary of adding new offences to the criminal law. So far as possible we ought to look for civil remedies if they can be effectively introduced and enforced rather than add to the already long list of criminal offences. Therefore Amendment No. 3 proposes to introduce right at the outset into the Government's proposals, without taking away anything from them, the possibility that 1287 a local planning authority in a planning contravention notice may require the person who is carrying out the operations to cease such activities that the authority considers should cease in order to secure compliance with planning control. In other words, the effect of the breach of planning control comes home immediately to the offender. It can be dealt with immediately using the penalties and procedures already envisaged by the Government with their proposals in the Bill.
§ This is a difficult matter and I am not convinced that we yet have all the aspects of it right. Indeed, I feel sure that the noble Baroness, Lady Gardner, and my noble friend Lady Castle, will put forward an eloquent case for their own amendments. However, we must always seek some effective way —more effective than that which the Government have found so far—to deal with persistent and flagrant offenders who have made a monkey of planning laws in many parts of the country for a number of years now.
§ I believe that we all have the same aim. Together I hope that we shall find a way out of this mess and will be able to secure effective control of breaches of planning law. I beg to move.
§ 5.15 p.m.
§ Baroness Gardner of Parkes
The Committee will not be surprised to hear that I prefer my amendments to those of the noble Lord, Lord McIntosh. I was interested to hear his remarks. He draws attention to the fact that it is a most delicate matter to assess exactly the wording that is required and not for one moment did I anticipate that the Government would insert the number of clauses that I suggest. It is a delicate matter and that is why I air this issue today. I believe that only the Government are in a position to determine the exact balance to be achieved.
Amendment No. 12 is an amendment supported by the Association of District Councils and the District Planning Officers' Society, although it has been tabled in my name. I am delighted that today I am supported by the noble Baroness, Lady Castle, and the noble Lord, Lord Ross. That amendment was not my first amendment. The first amendment tabled in my name was Amendment No. 19, which reflected my sentiments in my own words. There are differences between the two amendments, Amendments Nos. 12 and 19. For that reason I considered that they should both be tabled and remain on the Marshalled List to enable us to consider the relevant points.
For example, in the ADC amendment the broad question of development is covered whereas my amendment, Amendment No. 19, is more limited and covers only buildings. That is one of the points to be considered. Amendment No. 19 covers the point about written confirmation if permission is not required. One of the matters raised in the Carnwath Report concerns the difficulties encountered by magistrates. Since 1971 I have been a magistrate and know that magistrates have decided many much more difficult matters. I do not accept the argument that magistrates are incapable of considering these matters. However, it is a fact that they might enter 1288 what is described in the report as a grey area. If so, that grey area could surely be clarified by the planning authority should it be applied to and asked for clarification.
Let me give the Committee an example. Most people know that they can add a percentage (I think it is now 25 per cent.) to their house as permitted development. But that 25 per cent. is calculated as 25 per cent. from the date of 1948. Many people do not appreciate that someone might have added something in the 1950s and another person added more in the 1960s. Not for one moment do I propose that we should criminalise a situation in which those people have got into difficulty without realising it. However if those same people had applied to the council and asked whether something was permitted development and had received back written confirmation that it was permitted development, they would not be at risk.
I have been in a situation in which I have had to apply to the council in the area in which I live to ask whether or not something was a permitted development. I was not sure because it was a grey area. I believe that there must be an obligation on councils to give fairly rapid replies. On no account should there be a system which would hold up matters for a long time.
In that respect also some councils deal with only a small number of planning permissions. Westminster deals with 6,000 applications a year, which clearly is a major problem for that council. In a recent conversation with an enforcement officer at Westminster Council I heard that, as the situation now stands, one can put up a six-storey building which is in breach of planning control but not against the law in any way. However, if one were to put a sign on that building, that would be illegal. That officer cited cases in which a sign had been put on a building and it had taken between a year and 18 months before the case eventually came to court. The offence was proved. The maximum penalty available, which is difficult to obtain, is £400. The people who had put up the sign said that they had done quite well because they had made a million pounds out of the sign in the time in which it was up.
It is quite absurd to have a penalty that is too small. That is why my amendment suggests a penalty which I believe will be a deterrent. It is a figure that is quoted elsewhere in relation to these matters, so it is not out of line.
But why should a sign on a building be illegal while it is not illegal to put up a six-storey building? That is a nonsense. There are all kinds of buildings, including top floors and extensions, all around the City of Westminster and in Oxfordshire, which have gone up and not come down. People apply for retrospective planning permission, and even those who have supported or would have supported the original type of application find themselves confronted with something that has been built quite contrary to a permitted plan or any permission. Then, retrospectively, a planning authority which considers the matter is not allowed to take into account the fact that the building has already been constructed. It has to treat 1289 the application as though the site were bare and unused and must judge the application quite impartially.
That is why one of my amendments asks that council committees considering planning applications should be able to take into account as an adverse condition—this is not the matter of criminalisation but or e of the other amendments—the fact that someone has proceeded with his development prior to receiving any planning permission. It must be appreciated that at the moment people say, "I should like to put that building up but I do not think I shall get planning permission". As the noble Baroness, Lady Hollis, mentioned, one-third of such people (I think I am quoting the right figures) know that they should have planning permission and half of that one-third know that probably they would not receive it. My advice to any of those people would be to go ahead and build it. If the structure is up, it will probably never come down. If it does, it will probably have taken so long and gained so much that one will not really be in a bad way. Such people are flagrant in their behaviour because they know that there is no enforcement and that they will get away with it—
§ Lord McIntosh of Haringey
Perhaps the noble Baroness would care to rephrase her comment. She appeared almost to counsel people in favour of law breaking. Perhaps she would care to rephrase her advice by saying that she recognises that unless the law is improved they may get away with it. That is not quite the same as advising them to go ahead.
§ Baroness Gardner of Parkes
Perhaps my Australian phraseology is not quite right. However, as the law stands there is nothing illegal and nothing to stop people behaving in that way. Those who are blatant enough to go ahead appear to get away with it. Other people resent that and wonder why they should be bound to take others into consideration. When their planning application is considered their neighbours must be consulted. They may wonder why they should have that penalty placed upon them when others ignore the system and get away with it. That is the public's resentment at the present time.
I appreciate the point made by the noble Lord, Lord McIntosh, that it would be unfortunate if such actions became major criminal offences. I do not suggest that. I suggest that it should be discretionary and that local authorities should have the right to take action. After all, in cases of speeding usually the driver who is travelling at one mile an hour over the limit is pulled up and cautioned by the police but not brought before the magistrates. One must be deliberately and visibly speeding before one appears in a magistrates' court. Therefore, there is a discretion in bringing prosecutions.
The Carnwath Report makes several clear points. I wish to draw the Minister's attention to page 44, the heading of which is so appropriate for me. It is "Lack of Teeth". Chapter 4.1 states:There is widespread complaint that the penalties extracted for breaches of planning control are insufficient to offer a real deterrent to unlawful action".1290 That is true. The report makes a further interesting point on page 53. It states:The position of the Association of District Councils, whose members bear the brunt of responsibility for enforcement, has changed during the course of this review".The report goes on to state that the association was not originally in favour, and so forth. However, the important point is:the Committee stressed 'that this would provide a right to prosecute and not an obligation; local planning authorities should have the discretion to prosecute where necessary'".The paragraph concluded that, unfortunately, the report from the ADC would not be available in time for the publication of the Carnwath Report. That is an important point. If the ADC report had been available, Carnwath might have been impressed by the arguments which have come out strongly and clearly in favour of making the actions a criminal offence and the report may have concluded differently. I support the report's statement that in terms of public perception of the system the symbolic effect of making the actions a criminal offence carries considerable weight.
I hope that the noble Lord, Lord McIntosh, will appreciate that I am trying to make the point that too many people think in the way that I described. That is the problem. I hope that other Members of the Committee will listen to the arguments that will be made. It is a serious matter and I hope that my noble friend will deal with it in that way.
§ Baroness Castle of Blackburn
I find myself in the ironic position of joining forces with the noble Baroness, Lady Gardner, and adding my name to Amendment No. 12. It is only 20 years since she and I were engaged in a battle to the death for the Blackburn seat. I was the sitting Labour MP and she was an extremely vivacious Conservative candidate. I could not help thinking that it was a funny old world.
I join in this erudite debate not because I am a planning expert but because I am one of the sufferers to whom all this elaborate legislation is intended to bring relief. I am at the receiving end of the activities of the determined minority of people who flagrantly defy the planning obligations of which they are well aware. There has been more than one such person in the beautiful area in which I live.
I shall not name names but there exists a notorious case. In this area of outstanding natural beauty a man is repeating—and getting away with it—the breaches of planning duty that he has got away with in other parts of the neighbourhood. My attention was first drawn to the matter when travelling clown a narrow country lane which enters a wood full of deer. I saw the most remarkable contraption in the form of a stone manorial-type entrance to a building which he claims is a barn. It gives access onto an already narrow and winding road which the authority has no intention of widening. We certainly do not want it to do so because it is part of the lovely, endemic, unspoilt character of the area. The eyesore is blazened every night with searchlights. Heaven knows what is supposed to be inside the barn, but if there are cows they will never get a moment's sleep.
1291 All of us who love this beautiful part of the Chiltern Hills, including those on the parish council, contacted the planning officer immediately. I have had much correspondence and many telephone conversations with this excellent man. He tells me, "Mrs. Castle, we are powerless. We are as furious as you about the activities of this man. He should have applied for planning permission even though it is an agricultural building because it is near a road and an improvement of access must be made". He applied for permission after the building and the monstrous entrance had been erected. Now a mobile home has appeared on the site. The local council knows perfectly well that to take action will take months, money, an extra levy on our wretched poll tax and the time of officers. Even then it may not succeed. I might tell Members of the Committee that this gentleman is an addict and makes a laughing stock of the authority. He takes legal advice and is told exactly what he can get away with under the current law.
When I knew that the Bill was beginning its progress through this Chamber I said, "This is my chance to lend my voice to try to have effective action taken at last for the sake of the people who are at the sharp end of the problem". Ought not we to listen to them? They have the job of meeting the fury of the local residents. They have the job of trying to enforce an inadequate law full of loopholes.
They are asking us to support Amendment No. 12. In fact, they drafted it. Why should we not listen to the planning officers of the district authorities? They care passionately about the beauties of our local areas and they want to defend them. However, they have their hands tied behind their backs by the inadequacies of the current law.
I do not believe that those inadequacies will be remedied in this respect by any amendment other than Amendment No. 12. I am astonished when it is said that we should not criminalise people. Last year I received a letter from the Department of the Environment saying that it had been decided to list my modest cottage because it is built in the traditional Chiltern flint and brick. It is an old hill farm cottage still with its old tiles. The department said that it was an excellent specimen of the traditional building of the area and so it had been decided to list it. However, I had the right to appeal. I wrote back and said, "Appeal? I am saying whoopee! I want to tie the hands of any philistine who may succeed to the place when I am dead. Please let me know what is involved and what are my duties." I was sent a list and I read with interest the following words:It is an offence to demolish, alter or extend a listed building without listed building consent".The penalty can be a fine of unlimited amount or up to 12 months' imprisonment or both. I did not feel criminalised but I felt protected. What is the difference between applying that kind of attitude to a beautiful building and to the desecration of a beautiful part of a rural area?
I know that the penalties under these provisions are being altered in Schedule 2. Rather typically, instead 1292 of strengthening the protection against the flagrant violator of our planning intentions, the Government start to weaken the penalties for those who violate the listed building provisions. That is typical. However, that does not alter the fact that in amendments to Schedule 2 there is a repetition of the words that "it shall be an offence" and that the owner of the listed building "shall" do what he is told or "shall" suffer those penalties. That is quite right too. The word "shall" should be used also against people who are driving our district planning officers mad; people who are cocking a snook at us all and are laughing at the law makers—with every right to do so.
Our amendment still uses the word "may". We are still not being as tough in that case as we are with people who violate the listed building controls. We are saying "may". I have some well-meaning neighbours who, I am sure, have constructed a building without permission. I shall not tell on them, but one must discriminate.
Planning officers merely want a permissive power. They know who are the persistent culprits. I hope that the Committee this afternoon will send a message to those people: "This is the end of the road for you. You are not going to get away with it any more. We know who you are and if you move again, you will be committing an offence". We may then begin to have some effective planning law.
§ 5.30 p.m.
§ Lord Ross of Newport
We have heard a very powerful speech from the noble Baroness, Lady Castle, with which I cannot compete. I put my name to the amendment of the noble Baroness, Lady Gardner of Parkes, because I was asked to do so by my local planning officer and I was sent a booklet which other Members of the Committee may have received.
I draw attention to what I believe is another typical breach of planning law; namely, the creation of caravan parks. For example, a man buys land fairly cheaply and then applies for permission to build a beautiful house in an area of outstanding natural beauty. That permission is refused. He then splits up the land into small pieces and starts to sell them off. Before long, mobile homes are put on to the land. There is a vivid description on the last page of the booklet of what has happened. I believe that that took place in Kent. It is still going on.
I must admit that having put my name to Amendment No. 12, I rather prefer Amendment No. 19 because that amendment states:It shall be an offence to construct buildings, to alter buildings or to change the use of land".That is rather important and would cover the case of a man who wishes to split up the land and sell it off in small pieces. Why should that not be an offence? As the noble Baroness, Lady Castle, quite rightly said, if we who live in areas of considerable beauty in this country wish to build on to our houses, that must be done in a sympathetic style to that which already exists there. If it is stone, then stone must be used. If the building has a slate roof, the owner must go to 1293 great expense to obtain Welsh slates. And yet, one can look down the road and see that a house has been constructed, and it is then claimed that it is a barn. There was such a case in the newspapers the other day. I believe that the gentleman in question is in fact losing that case, thank goodness! However, that is hideous. Of course people living in that area have become very annoyed and the planning officer has become totally frustrated.
The noble Baroness, Lady Gardner, mentioned for sale boards. I must confess that I am an ex-estate agent. Actually, I was a chartered surveyor but every time I rose to my feet in the other place, Dennis Skinner would say, "another bloody estate agent". After the third occasion, I put my hand on his shoulder and said, "Actually, Dennis, I am a chartered surveyor". He said, "That's what I said, another bloody estate agent". After that, I gave up.
It is now an offence to have more than one for sale board on a property, as I understand it. That law is being obviously flouted. I am constantly seeing properties which have three or four boards and nobody seems to be doing anything about that. One prosecution was taken up earlier on and nothing has happened since. I accept totally that this Bill toughens up enforcement procedures which I very much welcome. However, I am worried that the authorities do not have sufficient enforcement officers to do the work. That is one of the problems.
The biggest way of getting round the law is to say that the property is to be an agricultural cottage. That is nonsense. We should be very careful indeed before giving planning consents to someone for a cottage for an agricultural worker or somebody who is retiring. I have some sympathy with that, but what happens when the retired farmer dies or the cottage is no longer required? Enormous pressure is put upon the planning authority to lift that clause. If it is not lifted then the place remains empty. Somebody then comes along and does such ridiculous things to the property that in the end the planning officer must recommend to the committee that permission may as well be given. I know that that happens time after time. That is a flagrant abuse.
I do not believe that the amendment in the name of the noble Lord, Lord McIntosh, is good enough because that refers to enforcement procedures and there will be no criminal offence. As I understand the position, if one goes against tree preservation orders and trees are pulled down—and not enough people are prosecuted in that respect—then that is a criminal offence and one can be fined or sent to prison. A farmer in Kent was sent to prison for that flagrant abuse. However, if one puts up a building, the enforcement notice procedure must be followed and that may take many months or even years. Therefore, we should grab this opportunity, deal with this flagrant abuse and write something into the Bill to make such abuse a criminal offence.
§ Lord Brightman
I should like to address Amendment No. 12 which I am disposed to support. I prefer it to Amendment No. 19 because it is more comprehensive. Amendment No. 12 provides that, 1294A person who initiates or carries out development so as to constitute a breach of planning control shall be guilty of an offence".The Committee may feel that a person who deliberately flouts the planning law ought on that account to be liable to prosecution. Though I appreciate the objections adumbrated by the noble Lord, Lord McIntosh of Haringey, I am not inclined to accept those objections.
I invite the Committee to read paragraph 23(1) of the report by the District Planning Officers' Society, which states that making unauthorised development an immediately punishable offence would be a strong added deterrent to those who seek deliberately to flout the planning laws and make others suffer by their actions.
We have all heard dreadful stories of developers who deliberately defy planning controls. Such an act is a wrong against the public; it is therefore an act against which the public ought, in my opinion, to be protected by the criminal law. I invite the Committee to support Amendment No. 12.
§ Baroness Carnegy of Lour
I was not present at the Second Reading debate. I could not be in the House and did not take part. But I have been listening to this debate with great interest. Like the noble Baroness, Lady Castle, I too have been a sufferer both in the area where I live in Scotland and in London. I have suffered also as a councillor on a council other than the one which was the local planning authority when the decisions of the planning authority were breached and the district council would not do anything about it. I was the receiver of complaints.
I was glad to hear both my noble friend Lady Gardner of Parkes and the noble Lord, Lord McIntosh, indicate that these were probing amendments. It is an important issue but also a difficult one. The reason why it is difficult was brought out by my noble friend Lady Gardner when she pointed out that it is possible to be caught out by a mistake when, for example, altering a house without planning permission. One may not realise that planning permission is needed.
I have known many examples of people caught by an innocent mistake. It is only fair that one should have two bites at the cherry; that initially it should not be a criminal offence. The breach is first dealt with by the planning system and then, if one offends against an injunction, it becomes a criminal offence. That means one is brought to realise what one has done before going wrong.
To make breaching the planning law an automatic offence is too fierce and also very unfair on a number of people. That does not mean that the kind of example that I have known in Westminster recently is not something we want to stop. It is monstrous and should not be possible. But there is another way. I agree with the noble Lord, Lord McIntosh, that one should hesitate before creating an extra criminal offence. One should be quite sure that it is the right and only way.
I hope that my noble friend the Minister will read extremely carefully what has been said. She may then 1295 say that the Government will look harder at what is in the Bill and see whether there is a better way. I hope that none of the amendments will be pressed this evening, and that out of all the arguments will come a better solution.
§ 5.45 p.m.
§ Baroness Blatch
Clause 1 implements Recommendation No. 2 of the Carnwath Report substantially along the lines recommended in the report, as was pointed out by the noble Lord, Lord McIntosh. The new contravention notice will enable planning authorities, when they suspect—that is an important word —a breach of control on land in their area to obtain information about it; and, if practicable, to secure co-operation from the person responsible for the suspected breach without recourse to any formal enforcement action. It is meant to be a fairly informal preliminary process, in advance of any decision as to whether formal enforcement action is expedient in the circumstances.
Amendment No. 3 would take the contravention notice process into the realm of formal enforcement action by enabling the planning authority to require remedial steps to be taken. There are a number of objections to this proposal. First, it would fundamentally alter the essentially preliminary nature of the contravention notice. We think that that would greatly reduce the likelihood that the recipient of the notice would be willing to discuss matters with the planning authority. Secondly, by requiring it to be remedied, it appears to prejudge the question whether what is taking place on the land amounts to unlawful development. There is no right of appeal to the Secretary of State against a planning contravention notice so the recipient has no opportunity to contest the planning authority's suspicion that a breach of planning control may have occurred. We therefore think that a remedial requirement would be unacceptable as part of this procedure.
Thirdly, if the recipient of the contravention notice carried out the requirements specified in the notice as a result of the new paragraph (a) and it was subsequently found that no breach of planning control had occurred, it would be reasonable to expect the recipient of the notice to be entitled to seek financial compensation from the planning authority for any loss he had incurred. We are extremely reluctant to complicate what is intended to be a relatively straightforward and informal process with provisions for the payment of compensation when it is found that no unlawful development has taken place.
I turn to the amendments tabled by my noble friend Lady Gardner. I listened to the debate very carefully, and I promise my noble friend Lady Carnegy that I shall certainly read with great interest during the period between now and Report stage all that has been said to these amendments. First, it needs to be said that, when the Carnwath Report was being compiled, evidence was taken from the Association of District Councils. I believe my noble friend misquoted when she mentioned the Association of District Councils. In fact it was the District Planning Officers' Society 1296 which produced the report to which my noble friend referred. But, even if there is another report from the ADC about which I do not know, the ADC was nevertheless consulted. If Members of the Committee will turn to page 92 of the report they will see that not only the ADC but also the District Planning Officers' Society were consulted. Whether Professor Carnwath changed his mind in the light of that information I am not able to say.
Many of the examples given were very serious. I am tempted to ask why planning officers who were asking for these matters to be made criminal offences were not taking the very action to which the noble Baroness, Lady Castle, referred. It is not powers and more law that are required. It is for planning officers to use the powers that are at their disposal.
I can almost hear my noble friend Lord Renton saying, "A moment ago we fought off an amendment that would require local planning officers to use the powers at their disposal". But we should continue to have regard to the very people who unwittingly, innocently, inoffensively do something very minor to their house. Someone may install in the wall at the side of his house a window for which he was not aware he needed planning permission. When it is reported by a neighbour or found out by one means or another a planning officer may go along and have a quiet word with the householder. The planning officer could invite him to apply for proper planning permission, to cease the practice or to remedy the situation. All that informal process is possible without making the offence automatically a criminal one.
The amendment would introduce a new Section 171E into the 1990 Act making it an offence for a person to initiate or carry out development constituting a breach of planning control. There would be a maximum summary penalty of £20,000 and provision that the court shall, in determining the amount of any fine, have regard to any financial benefit accruing or likely to accrue from the offence. A person charged with this offence would be specifically prohibited from raising in his defence to any prosecution the contention that planning permission should be granted for the development in breach of planning control.
These are heavy-handed provisions. They would fundamentally alter the present balance of the development control system and remove its essential flexibility. For the first time it would immediately become a criminal offence to carry out any development, however trivial or minor, in breach of planning control. We understand my noble friend's reason for tabling this amendment. It clearly represents the views of many members of planning committees in some district councils and representatives of professional planning officers in those councils. They consider that it is essential to make this fundamental change.
I expect that we have all seen the report of the District Planning Officers' Society to which I referred a moment ago, making unauthorised development an offence. The report cogently states the arguments in favour of this amendment and supports them with 1297 some case studies illustrating the shortcomings of the present enforcement system. We also understand the seriousness with which the amendment has been supported. We certainly do not condone breaches of control or excuse a developer's behaviour in those case studies. But we think that the District Planning Officers' Society has not demonstrated the need for so fundamental a change.
I remind Members of the Committee that, after thorough and independent examination, Mr. Robert Carnwath QC recommended against criminalisation in his report Enforcing Planning Control. Members of the Committee will judge for themselves the strength of the opposing arguments. The Government's view is that, as with the positive recommendations made in his report, Mr. Carnwath's negative recommendation on this issue should be accepted. We are strengthened in this view by the knowledge that other professional bodies whose opinions we respect as much as those of the District Planning Officers' Society do not support criminalisation.
For example, we understand that the Royal Town Planning Institute, the Royal Institution of Chartered Surveyors, the Law Society and the Local Government and Planning Bar Association, all oppose criminalisation. Their views are based on their members' experience of the practical operation of planning control throughout the country.
We cannot accept that even the most minor building operation, change of use or technical breach of planning control, should be open to prosecution in the magistrates' courts. Frankly, it is no use for the planning officers' society to say that planning authorities would be careful to limit prosecutions to the most serious and clear-cut offences. The fact is that any development carried out in breach of planning control would be a criminal offence in every case. Some planning authorities might choose to set an example by prosecuting minor or trivial offences. There appears to be nothing in the amendment to prevent the bringing of a private prosecution.
Do we really want to set neighbours against each other it the magistrates' courts over such matters as a window put in the wrong place in the side of a house or a boundary wall which has been built too high? Do we want to see a prosecution for setting up an innocuous business in somebody's home? In the 'presentation of this amendment by my noble friend I detected her desire to have some flexibility in these matters. It is possible that we can discuss flexibility further.
Magistrates' courts would have to decide whether a breach of planning control had occurred. That would involve them in a highly complex and legalistic area of legislation. The present enforcement system is careful to avoid giving this jurisdiction to magistrates. Instead, whether a breach of planning control has occurred is usually decided on an enforcement appeal to the Secretary of State where a planning inspector can take a decision consistent with judicial authority and case law. If that decision is defective, an appeal to the High Court can be made under Section 289 of the 1990 Act. That system ensures a degree of consistency 1298 in decisions of this kind which I suspect that magistrates' courts would find difficult to achieve. We should not forget the problems that the courts had with a similar jurisdiction before it was transferred to the Secretary of State by the Caravan Sites and Control of Development Act 1960.
Although the Government cannot accept this amendment, the enforcement provisions in Clauses 1 to 11 and 27 to 36 of the Bill are evidence of our determination positively to strengthen and improve the present enforcement system so that criminalisation in every case is not necessary. For some breaches of control the new injunctions provided in England and Wales by Clause 3 will provide the most effective remedy. For other cases where an activity must be halted at once the improved stop notice provisions in Clause 9 will provide the means. When a planning condition is ignored, the breach of condition notice procedure contained in Clause 2 will be immediately available. When anyone refuses to carry out the requirements of an enforcement notice or ignores the prohibition in a stop notice, the exceptional summary maximum penalties in Clauses 8 and 9 signal clearly to the courts that Parliament regards these as potentially most serious offences.
I appreciate that my noble friend's amendment will not detract from the new powers that we are proposing for planning authorities. Criminalisation would be an addition to our proposals. There is a vital distinction between my noble friend's and the Government's approach on this issue. We prefer to give planning authorities a selective remedy for each enforcement problem based on the practical experience of planning control which Mr. Carnwath has distilled in his report. Instead of approaching planning control on the basis that whenever a breach occurs the person involved is a potential criminal, we prefer to give planning authorities a complete and effective enforcement tool kit from which they can choose the right tool to deal with the particular breach of control.
It is a pragmatic and cost-effective approach to the enormous range of planning control issues which local authorities face. I hope that my noble friend is persuaded that the Government's carefully considered and comprehensive approach deserves her support. In our view similar arguments apply to Amendment No. 19. While I understand my noble friend's intention regarding Amendment No. 20, in the Government's view its effect is entirely unsatisfactory and illogical. It is a fundamental principle of our land law that anything lawful may be done on land. It is a fact of life that lawful development may benefit some neighbours and disadvantage others. But subject to their having a remedy under the general law such as for breach of covenant or nuisance, those neighbours have no claims against the owner.
The amendment appears to change that but only for retrospective permission. That is an illogical distinction. Whether or not the application is retrospective the planning authority should follow the same consideration process. If as a result of that process a decision on planning merits is acceptable for the development whether proposed or already carried 1299 out, no question of compensating neighbours of the development should arise under planning law. We regret that we cannot accept Amendment No. 21 because it would require planning authorities to take into account, in determining retrospective planning applications, a matter which is not a material planning consideration; namely, the mere fact that the application was not made before the development was carried out.
Section 70 of the 1990 Act specifies the considerations which the planning authority has to take into account when determining whether to grant planning permission. These are the provisions of the development plan so far as it is material to the application, and to any other material considerations which are construed as meaning any other material planning considerations. We see no good reason why the fact of retrospection should be a material consideration. It is not directly relevant to the decision on planning merits. It would be particularly harsh to take account of retrospection where someone genuinely did not realise that planning permission was required or that they had been professionally advised that planning permission was not needed and had acted on that advice. In that respect, we should bear in mind that some development without planning permission proves acceptable and should not be penalised. With that rather lengthy explanation, I hope that Members of the Committee will be able to withdraw their amendments.
§ Baroness Gardner of Parkes
I wish to clarify that point because I think we are at cross-purposes. I quoted from the Carnwath Report and not from that of the District Planning Officers' Society. I referred the noble Baroness to page 53 which discusses paragraph 2.3. That concerns the position of the Association of District Councils. When my noble friend thought I was referring simply to the district planning officers, that was not so. Mr. Carnwath was saying that unfortunately the report from the Association of District Councils was not available in time for him to take it into consideration.
It is the Association of District Councils in addition to the District Planning Officers' Society that now feels so strongly. I discussed these matters with the Association of Metropolitan Authorities. It is concerned with making these matters a criminal offence for everyone no matter how minor. That is the most sensitive issue. I shall read very carefully what my noble friend has said. I hope that there will be some point of compromise regarding the persons referred to throughout this debate who are flagrantly going ahead and doing what they wish without any thought. There should be consideration of that. I do not understand the point the noble Baroness was making in reply to Amendment No. 21. Her answer did not make sense to me. It seemed to contradict what had been said on the other matters.
I shall study her answers very carefully. I warn her, however, that I shall probably come back to the matter at the next stage. A number of noble Lords telephoned me today to say that, because they felt so 1300 strongly about the matter, they would have made a point of coming to vote had the intention been to call a Division. I assured them that I did not want them to travel long distances to do that when I felt that the issue had to be considered in much more detail. From that point of view I am happy to leave the issues raised by my amendments until the next stage.
§ 6 p.m.
§ Lord Ross of Newport
Perhaps I may encourage the noble Baroness, Lady Gardner of Parkes, to do exactly that. I hope she will not yet throw in the towel. At the meeting with the Minister perhaps some way can be devised by which those who flagrantly breach planning can be prosecuted. No one wants to pick up the minnows. There must be a way in which they can be protected. Someone who has innocently done something should not be prosecuted. But I am convinced that the threat of prosecution and serious fines would stop these people doing what they are doing.
I recognise at once that the Government have gone a long way to improve enforcement procedures but such people could still spin them out. I have been told by my noble friend Lord Tordoff that a case involving a caravan site has been with the Minister for two years. The case has still not been decided. Such cases make people furious. If someone is told straight away that the matter will go to court there is a chance of stopping most of these flagrant breaches. I am not satisfied by the reply and I hope that more can be done.
§ Lord McIntosh of Haringey
Three distinct points of view have been expressed in this debate: one was mine—I think I was probably on my own in that regard. Another was the point of view eloquently expressed by noble Lords whose names are attached to Amendment No. 12 and indeed by the noble and learned Lord, Lord Brightman; and the third was the Government's point of view. They cannot all be right. I ask whether any of them is right.
I do not think that we have yet got to the bottom of the matter. We have not solved the problem of the difference between flagrant offenders and unwitting offenders. It is not solved by including the word "knowingly". I suggest to the Minister that ignorance of the law is no excuse. To say that something was done "unwittingly" is not a suitable defence for a breach of the law. I do not think "flagrantly" works because it does not mean anything very much. I see the noble and learned Lord, Lord Brightman, nodding. Therefore I do not think that anything about the offender should bring down the increased penalties which I believe all of us—at any rate all those who put down amendments—are convinced are necessary.
My noble friend Lady Hollis has just suggested that the nature of the offence should be considered and that the word "irreversible" ought to be brought into the provision. Perhaps we should be looking for a way of providing more rapid penalties for breaches which are irreversible rather than looking at the nature of the person committing the offence. That matter should be looked at between now and the next stage of the Bill.
1301 I am certainly not satisfied that the Government's procedures are good enough. Nor am I satisfied that it is wrong to do what we do in Amendment No. 3, which is to jump straight from the planning contravention notice to the power to cause the wrong to be put right. The procedure proposed by the Government of forcing the planning authority to go through the additional stage of an injunction and making breach of the injunction the only offence will slow matters down and will make it impossible to have effective; enforcement in serious cases. I do not think that the arguments used against my amendment were on the whole satisfactory. I understand the point that the planning contravention notice is meant to be of a preliminary nature, but there are occasions in planning law and in contravention of planning controls when there is no time for investigations of a preliminary nature. Something will have to be done and some way will have to be found to put that right.
On the basis that we do not yet have the ideal solution, and bearing in mind that there is a printing error in my amendment—there is an additional "it" in the penultimate line—I think it right to ask leave to withdraw the amendment. It is a matter on which I should 'very much like to talk to ministers and to the department before we reach the next stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 4 not moved.]
Lord Coleraine moved Amendment No. 5:
Page 2, line 34, leave out ("may") and insert ("shall").
§ The noble Lord said: In moving this amendment, to which the noble Lord, Lord McIntosh, has added his name, I shall speak also to Amendment No. 7 in the name of my noble friend Lady Blatch, which is among the other amendments grouped with this amendment. I say at the outset that the amendments tabled in my name have been so tabled with the assistance and briefing of the Law Society of England.
§ With this amendment we are still dealing with planning contravention notices. What is proposed to be the new Section 171C(4) of the principal Act provide; that the planning contravention notice may give notice of a time and place at which a person on whom the notice is served may come and talk to the planning authority and make representations about the notice which will be considered by the authority. Why is it permissive and not mandatory? The Carnwath Report suggested that it should be a mandatory part of a planning contravention notice.
At Second Reading my noble friend the Minister described the intentions behind the new planning contravention notice in the following way:
the new planning contravention notice … is meant to encourage developers and authorities to talk to each other in the early stages of the process; so that instead of formal enforcement action having to be taken when communications fail, there is a real prospect of initiating discussion which results in agreement on how land is to be developed".— [Official Report, 27/11/90; col. 907.]
I should have thought that that was a clear reason for making the provision mandatory.
§ The Law Society takes the view that if a local planning authority initiates a planning contravention notice procedure, it should be obliged to pursue that procedure to its logical end and to offer a meeting with the person on whom the notice is served so that the person may make formal representations. The planning contravention notice procedure is designed to prevent what is at present a somewhat cumbersome enforcement procedure. It seems illogical for this provision to give the planning authority discretion as opposed to a duty.
§ The Law Society has been concerned about the penalty provisions provided for planning contravention notices. It believes that it would be a good idea for there to be some form of daily penalty. It is therefore with some interest that I shall listen to what my noble friend says when she moves Amendment No. 7.
§ I am neither a criminal lawyer nor practised in magistrates' court proceedings but I ask my noble friend whether Amendment No. 7 would allow a planning authority, every day after the expiration of 14 days, to serve a separate summons in order to produce a daily penalty by some back-door way. If that is not the effect, what is the effect intended to be? If that is the intended effect, it seems to me to be a very cumbersome procedure.
I should like to ask my noble friend whether there is some theoretical failing in the procedures. I see from the proposed new Section 171E(2) that it will be a defence for a person who is charged with an offence, in the case of a failure to provide information, to say that information which he did not hold at a certain time,
was not reasonably accessible to him".
There are possible difficulties here because it may be that, during the 14 days allowed, the person on whom the notice is served will not have the required information. Let us suppose, for example, that he obtains it 14 days later when the authority is about to initiate proceedings against him. In such circumstances he would have committed an offence because he would not have any time or leeway under the provision in which to inform the authority that he has the required information. Such a situation would arise when the person did not obtain the information until almost immediately before the authority took proceedings against him.
§ I turn now to Amendment No. 8, tabled in the name of my noble friend Lord Stanley of Alderley. I understand that if Amendment No. 7 is successful, he will not be able to move his amendment. However, his amendment is a good one, or at least it would have been a good one. If the government amendment is accepted, it is all the more important that the 14-day period to which it refers should be extended to 28 days at the next stage of the Bill's proceedings. I support the spirit behind my noble friend's amendment. A 14-day period in which to obtain information is quite unsatisfactory and insufficient. I beg to move Amendment No. 5.
§ Lord Stanley of Alderley
There are two amendments tabled in my name in this grouping; namely, 1303 Amendments Nos. 8 and 11. For the convenience of the Committee I shall deal first with Amendment No. 8. As my noble friend said, Clause 1 introduces the concept of planning contravention notices, by means of which local planning authorities may oblige owners and occupiers of land to inform them about the uses of the land where it appears to the local planning authority that there may have been a breach of planning control.
As the clause stands, if a person fails to comply with the notice within 14 days he will be guilty of an offence and a penalty at level 3 will apply. As has been said, 14 days seems to me to be very severe. For example, people may be away on holiday—not that farmers have holidays, but I believe that other people do these days. The amendment would allow the period of 28 days in which to comply with the request. I should tell my noble friend that I understand that Amendment No. 7 refers to a 14-day period. However, I remind her that there is a precedent for 28 days, in that the enforcement notices requiring a breach of planning control to be remedied provide for a period of 28 days.
I should like now to speak to Amendment No. 11. Again, as the clause stands, a person charged with failing to comply with a planning contravention notice can plead that he took all reasonable measures to comply with the requirement or that the information required was not reasonably accessible to him. However, there is no defence available to him if he could not reasonably have been expected to respond to the requirement. For example, a person who is seriously ill may be taken to hospital just before the notice is served. The amendment provides that such a person may plead that he had a reasonable excuse. There is a precedent for this in Section 11 of the Wildlife and Countryside Act, which seems to be engraved upon my soul and which provides that you must clear snares every day unless a reasonable excuse can be given for not doing so.
§ 6.15 p.m.
§ Lord Carmichael of Kelvingrove
I should like to express my support for the amendment of the noble Lord, Lord Coleraine. I also have in this grouping an amendment concerning Clause 27 which applies the same arguments to the Scottish section of the Bill. We have received representations from the Law Society of Scotland in the matter. The society considers that it is proper that those who receive planning contravention notices should be told when and where they can either offer to rectify the contravention or make representations about it. The content should not be left to the discretion of the planning authority as this could easily result in bindings contrary to what we would all consider to be natural justice; in other words, the unjustified imposition of controls without due process of law being observed. I know that there are always arguments about the words "may" and "shall", but in this case it is not the delaying form of words used in Committee in another place; it is a genuine attempt to improve the law. I support this group of amendments.
§ Lord Airedale
My only concern is with Amendment No. 5. In subsection (4) we have the 1304 contrast between the words "may" in line 1 and "shall" in the penultimate line, although they are both dealing with the same thing. The penultimate line reads:The authority shall give him an opportunity to make … representations at that time and place".Those words refer back to "a time and place" in line 2 of the subsection. What sense is there in having a contrast between the words "may" and "shall" in two parts of the same subsection when they both refer to the same matter? I believe that the draftsman has nodded off for once and that he meant to use the same word in both cases. It would have been better to have inserted the word "shall" in line 1 so as to bring it into line with the wording at the end of the subsection.
§ Baroness Blatch
Amendment No. 5 in the name of my noble friend Lord Coleraine makes minor changes to the provisions of subsection (4) in the new Section 171C of the 1990 Act. I shall set aside the specific question which has just been asked because I believe that my noble friend will probably wish to say something on the detailed text of the amendment.
Amendment No. 12A would make it obligatory for the planning authority, whenever it serves a contravention notice, to give the recipient notification of a time and place at which the matters specified in paragraphs (a) and (b) of the subsection will be considered by the authority. That is not what we intend in the contravention notice procedure. Its purpose is to provide planning authorities with a reasonable measure of flexibility in deciding how the recipient of a contravention notice should be required to respond to it. It may not always be appropriate for the planning authority to require a response from the recipient of a notice in the terms for which subsection (4) provides. For example, the recipient may already have made a planning application (as in paragraph (a) of subsection (4)) which the authority has refused; and the purpose of the notice is to obtain an essential item of information to enable the authority to consider whether enforcement action is expedient. We prefer to leave such matters to the planning authority's discretion in each case, because it is best placed to decide how a recipient of a notice should be required to respond to it.
Amendments Nos. 7 and 13, which are government amendments, are designed to improve the offence provisions in the new Section 171 D of the 1990 Act and the new Section 83D of the 1972 Scottish Act so that the planning authority will be able to prosecute more effectively in the court of summary jurisdiction for any failure to comply with a requirement of the new planning contravention notice. The revised subsection (1) has broadly the same effect as the existing subsection (1) as far as the end of paragraph (a) of the subsection. That creates an offence where the person upon whom the new planning contravention notice has been served fails to comply with any requirement of the notice after the end of the 14-day period starting with the day upon which the planning authority served the notice upon that person.
In answer to the question asked by my noble friend Lord Coleraine, Amendment No. 7 allows the 1305 planning authority to charge for the day or days upon which the failure to comply continues. That gives the authority an essential flexibility to take account of the day, or days, upon which an offence is committed. It is not intended to create a separate offence on each day of the period on which the failure continues which can be separately charged.
The new subsection (1A) provides that the planning authority, when it lays an information in the court for an offence under subsection (1), may charge that the offence occurred on a particular day, or during any longer period of time it may select, in which the alleged non-compliance with the planning contravention notice Las continued. Subsection (1A) also provides that, following conviction of a first offence under subsection (1), a person may be convicted of a second offence, or subsequent offences, under that subsection by reference to any period of time following the preceding conviction for such an offence. I commend these two amendments to the Committee.
My noble friend's first amendment, Amendment No. 8, would extend from 14 days to 28 days the period within which the recipient of the new planning contravention notice must comply with any requirement of the notice if he is not to be liable to prosecution for an offence under Section 171D(1). We appreciate that a 14-day period is a relatively short period for this purpose. It was chosen because it is recommended by Mr. Robert Carnwath in his report. We have taken the view all along that this is a package of measures, and we have been as faithful to the report as possible.
I have to say that, while I understand my noble friend's reasons for proposing a longer period, it would build into this new contravention notice procedure the kind of delay that we are determined to avoid. Once a planning authority suspects that a breach of planning control is taking place, it is imperative that it is enabled to investigate it quickly and efficiently before deciding what formal enforcement action (if any) is expedient. Possible delay should not be part of that procedure from the very moment at which it starts to operate.
My noble friend's second amendment (Amendment No. 11) would add a new defence for a person prosecuted for failing to comply with a requirement of a planning contravention notice; namely, that the person prosecuted,had a reasonable excuse for failing to comply with the requirements",of the notice. That would be in addition to the defence provisions already provided by Section 171D(2). Those provisions are that the person charged took all reasonable measures to comply with the requirement of the notice; or that he failed to provide the required information because it was not reasonably accessible to him.
We believe that the defence provisions already in new Section 171D(2) are apt and reasonable in the circumstances of this new offence. A defence provision based on a "reasonable excuse" for failing to comply with the notice would open the door to the raising of ingenious and plausible excuses which are more 1306 suitable to a plea in mitigation of the offence rather than a defence against conviction. The amendment, if accepted, would signal to the magistrates' courts that the offence was a trivial matter. I hope that it will not be pressed.
§ Baroness Hollis of Heigham
Before other noble Lords respond to the amendments they have tabled, perhaps I may ask the Minister's views on Amendments Nos. 10 and 16 which are not grouped with these amendments but which, nonetheless, if Amendment No. 7 is accepted would be cut across and obviated. Amendments Nos. 10 and 16 have the simplicity of introducing the "cab meter" principle of fines, given the clear nature of the offence. It would mean that for subsequent offences it would not be necessary to return to the magistrates' court for a retrial but merely for the application of the penalty. In that context, does the Minister care to comment on Amendments Nos. 10 and 16?
§ Baroness Blatch
It was always my desire to take Amendments Nos. 10 and 16 with the others. It was not my choice not to do so. The noble Baroness is of course right. There is a linkage. The amendments are not being discussed at the moment, but I am happy to respond to them if it is the Committee's wish that I do SO.
§ Lord Airedale
Has the Minister said anything about "may" and "shall" which are the sole topics of Amendment No. 5?
§ Baroness Blatch
The noble Lord is querying an amendment tabled by someone else. It is not a government amendment. Nevertheless in the course of speaking to the amendments I said that it may be possible that planning permission had been received. The "shall" referred to a different aspect of the matter altogether. "May" and "shall" are appropriate. They are not inconsistent one with the other.
As the noble Baroness has pointed out, Amendments Nos. 10 and 16 are related to government Amendment No. 7. We appreciate why Amendment No. 10 has been tabled. It is clearly necessary, when a person has already been convicted for the offence for which the new Section 171D provides, that the conviction for any subsequent offence should have regard to each day on which that second or subsequent offence is committed. We think, however, that the Government's amendment (Amendment No. 7) effectively achieves the result which the noble Lord seeks to achieve by his amendment. The Government's amendment enables any second or subsequent offence to be chargedby reference to any day or longer period of time".That means that the planning authority, in laying an information in the magistrates' court in relation to this offence, will be able to charge in respect of the day or days on which the offence was committed, following a previous conviction.
The same considerations apply to Amendment No. 16 to Clause 2. We propose a corresponding amendment which will achieve the same results.
§ Lord Monson
With regard to Amendment No. 8, will the Minister confirm that if a person is on holiday, as instanced by the noble Lord, Lord Stanley, a planning contravention notice cannot be served upon him? Must the notice be served in person or is it necessary merely to send it through the post? It makes a great deal of difference. If it is to be served in person, the Minister's reply answers the point. If it is merely to be sent through the post, when someone may be away, the noble Lord, Lord Stanley, still has a good case.
§ Baroness Blatch
I was expecting to be caught out long before this. I am sure that this will not be the first time. I cannot say what happens if it is not possible to find the person within the 14 days. However it looks as though I may well have an answer before I sit down. I am advised that the practical answer is that the person who cannot comply through illness should notify the planning authority, which will be able to exercise discretion whether to prosecute in those cases. We would not expect an authority to prosecute someone who is genuinely unable to reply through sickness, being on holiday or being unavailable within the 14 days.
§ Lord Stanley of Alderley
My noble friend Lord Coleraine may wish to conclude, but perhaps I might say just two things about the two amendments to which I spoke. My noble friend's last remark confuses me. If that is her attitude, I do not know why she does not accept the 28 days. I am not the least bit happy with the philosophy that the Committee must slavishly follow the report. If that is the case, I suggest that we all go home.
§ Baroness Blatch
Perhaps my noble friend will allow me now that I have the benefit of advice on the point of when a person is unobtainable. We say that where the person is obtainable there should be a speedy reaction to the problem. There are clearly occasions when someone may be unobtainable. It may be for days, weeks or even months. Action could not be taken until the person was available to be pursued. I do not believe that it is confusing. The firmness and speediness of the action is catered for in the Bill. The flexibility to defer if the person is unobtainable also exists.
§ Lord Stanley of Alderley
I shall have to read the Bill to see where it says that. My other point relates to Amendment No. 11 and the reasonable defence. I cannot understand why that reasonable defence is not appropriate in the Bill when it is appropriate in other Acts of Parliament. Are we going to now take it out of other Acts of Parliament? I cannot see the difference. However I shall look carefully at my noble friend's remarks and decide what to do when we reach Report.
§ Lord Coleraine
I am grateful to my noble friend for answering the textual criticisms made by the noble 1308 Lord, Lord Airedale, especially after having suggested that I do so. I should have been in grave difficulty in doing as well as the noble Baroness did.
I am not happy with the reply that we received on Amendment No. 5, but I shall read what my noble friend said. She suggested that Carnwath was to be taken as one bundle, or that was the effect of her remark. In Amendment No. 5 she is departing from what Carnwath recommended, which was that it should be obligatory on the planning authority to include this provision in the notices.
The noble Lord, Lord Carmichael, referred to pressures of natural justice. I should not go so far as to suggest that natural justice comes into the matter at all but it is desirable that the provisions should be mandatory because anyone who does not find himself presented with the opportunity to address the planning authority will feel that he has been denied justice. However, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.30 p.m.
§ [Amendment No. 6 had been withdrawn from the Marshalled List.]
§ The Deputy Chairman of Committees (Baroness Cox)
I must point out that if Amendment No. 7 is agreed to, I shall be unable to call either Amendment No. 8 or Amendment No. 10.
Baroness Blatch moved Amendment No. 7:
Page 3, line 16, leave out from ("If") to end of line 25 and insert ("at any time after the end of the period of fourteen days beginning with the day on which a planning contravention notice has been served on any person, he has not complied with any requirement of the notice, he shall be guilty of an offence.
(1A) An offence under subsection (1) 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 that subsection by reference to any period of time following the preceding conviction for such an offence.").
§ On Question, amendment agreed to.
§ [Amendment No. 8 not moved.]
§ [Amendment No. 9 had been withdrawn from the Marshalled List.]
§ [Amendments Nos. 10 and 11 not moved.]
§ Clause 1, as amended, agreed to.
§ [Amendment No. 12 not moved.]
§ Clause 27 [Planning contravention notices]:
§ [Amendment No. 12A not moved.]
Baroness Blatch moved Amendment No. 13:
Page 32, line 28, leave out from ("If") to end of line 37 and insert ("at any time after the end of the period of fourteen days beginning with the day on which a planning contravention notice has been served on any person, he has not complied with any requirement of the notice, he shall be guilty of an offence.
(1A) An offence under subsection (1) 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 that subsection by reference to any period of time following the preceding conviction for such an
§ On Question, amendment agreed to.
§ Clause 27, as amended, agreed to.1309
§ Clause 2 [Enforcement of conditions]:
Lord McIntosh of Haringey moved Amendment No. 14
Page 4, line 37, at end insert:
("6A) If a magistrates' court is satisfied that a person responsible is in breach of a notice under subsection (6) above, the court may make an order requiring the person to comply with the notice within a time specified in the order.").
§ The noble Lord said: I listened with great interest to the Minister saying a few moments ago that she treated the Carnwath Report as a package and that the Government sought to implement the package so far as possible. Amendment No. 14 introduces a Carnwath recommendation which the Government have not proposed. I assume therefore that on mature consideration the Government will wish to accept our amendment. In it we strengthen the breach of condition notice so that we can give magistrates the power to order those who contravene a planning condition to comply with the breach of condition notice. The analogy that we use is the abatement of noise procedure in Part III of the Public Health Act 1936. That will be fresh in the memories of Members of the Committee who took part in the debates on the Environmental Protection Bill.
§ In his review, Mr. Carnwath took the view that magistrates should have the power to reinforce the breach of condition notice. As the clause stands, magistrates only have the power to impose penalties for non-compliance with a notice. We believe that it is important that there should be the power to enforce the conditions rather than the cruder power of imposing penalties of non-compliance. In the light of the Minister's earlier statements, I hope that she will see fit t D agree to the amendment. I beg to move.
§ The Lord Advocate (Lord Fraser of Carmyllie)
The noble Baroness will not see fit and I regret that neither will I. While we appreciate that Amendment No. 14 is based on a suggestion in the Carnwath Report, we have concluded that it is not necessary to include in Section 187A an order-making power for the magistrates' court on the lines of the amendment. If someone continues, in breach of a breach of condition notice, he can be prosecuted for a second and any subsequent offence until he complies with the notice. In an extreme case of non-compliance, the planning authority could seek an injunction in the High Court or county court using its new power in Clause 3 of the Bill.
We also think that it would be unsatisfactory to create what would amount to a dual jurisdiction for enforcing the breach of condition notice which would be likely to result if the magistrates' court had the power to make an order. Any such order might in practice conflict with the requirement specified by the planning authority in the breach of condition notice.
On balance, we think it best to maintain the normal approach to enforcement offences where the court's jurisdiction is kept to the imposition of a penalty which the court considers appropriate to the gravity of the offence. We believe that it would be very unsatisfactory for the court to issue an order in addition to the breach of condition notice itself. It 1310 would bring the court directly into the enforcement process, instead of leaving enforcement to the planning authority which knows the details of the planning permission it has granted and what is needed to secure compliance with it. I hope with that explanation the noble Lord will feel that he can withdraw the amendment.
§ Lord McIntosh of Haringey
I have some sympathy with the argument that it is for the planning authority to be responsible for enforcement and for the court to be responsible for penalties. Certainly I do not propose to press the amendment solely on those general grounds. I find it a little strange that the noble and learned Lord the Lord Advocate suggests that the conditions imposed by the magistrates' court should differ from or be in conflict with the conditions imposed by the local planning authority. I should have thought it would be easy for that authority to make it clear to the court what conditions are required to be imposed. It would be quite an exceptional case if the magistrates were unable or unwilling to follow the guidance given to them by the local planning authority in terms of the conditions.
In the amendment we sought a short cut to avoid a to-ing and fro-ing between the courts, the planning authority and the person infringing planning conditions. I should still have thought that our procedure was simpler than the repetitive offence which is proposed by the Government. However, I shall read carefully what the noble and learned Lord the Lord Advocate said. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Chairman of Committees
I must point out that if Amendment No. 15 is agreed to, I shall be unable to call Amendment No. 16.
Lord Fraser of Carmyllie moved Amendment No. 15:
Page 4, line 43, leave out from ("offence") to end of line 47 and insert:
("(8A) An offence under subsection (8) 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 that subsection by reference to any period of time following the preceding conviction for such an offence.").
§ The noble and learned Lord said: The purpose of the two government Amendments No. 15 for England and Wales and No. 17 for Scotland is to improve the offence provisions in the new Section 187A of the 1990 Act and the new Section 87AA of the Scottish 1972 Act so that the planning authority will be able to prosecute more effectively in the court of summary jurisdiction where the person responsible is in breach of the new breach of condition notice.
§ These amendments closely follow the approach which the Committee has already considered in corresponding amendments to the offence provisions in Clauses 1 and 27. The new subsection (8A), removes any doubt that the planning authority, when it lays an information in the court for an offence under subsection (8), may charge that the offence occurred 1311 on a particular day or during any longer period of time for which the person responsible has allegedly breached the notice.
§ Subsection (8A) also provides that, following conviction of a first offence under subsection (8), a person may be convicted of a second offence or subsequent offences under that subsection by reference to any period of time following the preceding conviction for such an offence. These amendments are necessary to enable planning authorities to prosecute effectively for a breach of the new notice. In view of what was said earlier during previous debates, I am sure that this will be welcome. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 16 not moved.]
§ Clause 2, as amended, agreed to.
§ Clause 28 [Enforcement of conditions]:
Lord Fraser of Carmyllie moved Amendment No. 17:
Page 34, line 6, leave out from ("offence") to end of line 10 and insert: ("(8A) An offence under subsection (8) 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 that subsection by reference to any period of time following the preceding conviction for such an offence.").
§ On Question, amendment agreed to.
§ Clause 28, as amended, agreed to.
§ Clause 3 [Injunctions restraining breaches of planning control]:
§ [Amendments Nos. 17A to 17F not moved.]
§ Lord Ross of Newport moved Amendment No. 18:
Page 5, line 24, at end insert:
§ ("Undertaking in damages: public interest.
§ 187C. Where a local planning authority applies for an interlocutory injunction in pursuance of proceedings under section 187B above the court shall only require the authority to give an undertaking in damages where the defendant shows that it is in the public interest for the court to require such an undertaking.").
§ The noble Lord said: A contested action for an injunction can take some time to be heard. In the meantime, the damaging operation or use can continue until the case is finally dealt with unless the applicant has obtained an interlocutory injunction to stop the operation or use pending trial.
§ However, in the vast majority of cases a court will require an applicant for an interlocutory injunction to give an undertaking that if it grants the application he will pay the defendant damages if the main action fails. This could be loss of profits etc. over a year that in some cases could exceed £1 million. Thus councils are wary of taking action, because through no fault of theirs the case may fail at trial and they would be liable for substantial damages. At present courts do not require undertakings from the Crown where proceedings are brought to enforce the law. Recently this principle has been extended to local authorities, but very cautiously.1312
§ This amendment would not bar a court from requiring an undertaking in every case. There may be cases where the public interest requires an authority to compensate someone against whom it brings proceedings for an injunction. But the burden should be on the defendant to show that an undertaking is really necessary. I beg to move.
I regret that we cannot accept this amendment. I understand that the present practice in regard to the grant of an interlocutory injunction is to give the court a discretion when to require an undertaking from the party to whom an injunction is granted. An undertaking can be required even in a case where the defendant is not present; for example, on an ex parte application. This procedure enables the court to strike what it regards as the fair balance between the interest of the plaintiff and the interest of the defendant, depending on the circumstances of each case, when judgment is given.
This amendment would fetter the discretion of the court and remove the court's discretion to protect a defendant's interest on an ex parte application. It would also reverse the present burden of proof in injunctive proceedings which is on the plaintiff to show why an undertaking should not be given.
I appreciate why the noble Lord is concerned to protect the interest of the local planning authority in injunctive proceedings by this amendment. On reflection, I hope he may conclude that the effect of the amendment is to go too far in that direction and to expose the defendant to an unfair risk. It is important that this new injunctive procedure in the planning Bill should be seen to operate fairly and should not, unlike other similar procedures, fetter the court's discretion in these matters. Therefore, I hope the noble Lord will not pursue his amendment.
§ Lord Ross of Newport
I am sure that the Minister will be relieved to know that I do not intend to pursue this amendment. I am a little sorry about the response, although I half expected it. I think that we are both delving into legal matters about which I am not experienced and I suspect that he is not either. This is an attempt to encourage local authorities not to be put off and to take out injunctions where it is necessary that they should do so. Having been involved with a local authority, I can remember so often getting legal advice saying "We may not do this" and "We should not proceed on that". I think it is one of the reasons why they would never proceed, if they could possibly avoid it, with compulsory purchase orders. But I have to accept that reply, and no doubt my advisers will take a look at it and see whether it is worth while coming back again. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 3 shall stand part of the Bill?
Am I in order in inquiring of the Minister whether there is a drafting error in subsection (2) of the new section? Subsection (1) provides that a 1313 local authority can make an application for an injunction when it thinks it appropriate to do so. Subsection (2) provides that on an application,the court may grant such an injunction as they think appropriate for the purpose of restraining the breach".I believe I am right in saying that a court is singular and surely, nonetheless, what is intended is that it should be at the court's discretion as to what it thinks is appropriate and not at the local planning authority's. At the moment, the "they" applies to the local planning authority, and I should be fairly horrified to think that the court had to grant an injunction which the local planning authority thought was appropriate. I hope that I have spoken slowly enough to receive an answer to that unfair and unworried question.
We believe that the clause is correct, but we shall look at it and take counsel's advice.
§ Clause 3 agreed to.
§ [Ammdments Nos. 18A to 21 not moved.]
§ 6.45 p.m.
§ Clause 4 [Time limits on enforcement action]:
Lord Coleraine moved Amendment No. 22:
Page 6, line 28, leave out ("or purported to take").
§ The noble Lord said: Clause 4 deals with time limits on enforcement actions and it seeks to insert a new Section 171B into the principal Act. There are four subsections. Under the first of the two subsections, breaches of certain planning controls are made free from enforcement action after the end of a period of four years, and by subsection (3) other breaches of planning control are free of enforcement action after 10 years.
It is when we come to subsection (4) that a query arises. Subsection (4) provides that the preceding subsections do not prevent:
(b) making further enforcement action in respect of any breach c f planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach".
The point of my amendment, which is to strike out "or purported to take", is to find out what these words are supposed to mean and if they are meaningless to persuade my noble friend that they should be removed from the Bill.
To go back to the new Section 171A, this states in subsection (2):
For the purposes of this Act—
- (a) the issue of an enforcement notice … or
- (b) the service of a breach of condition notice …
constitutes taking enforcement action".
§ That seems to me to be perfectly clear. I do not see how you can have the purported issue of a purported enforcement notice or the purported service of a breach of condition notice. These words should be removed from the Bill and I shall be very interested to hear what my noble friend has to say. I beg to move.
The purpose of including the words which the amendment proposes to omit is to deal with 1314 the situation where the planning authority has issued an enforcement notice but it has proved to be invalid for some reason. For example, the result of an enforcement appeal to the Secretary of State may be that the notice is quashed because it proves to be fundamentally defective. In these circumstances, we think it is appropriate for the planning authority to have a further opportunity to issue a notice which is not defective or deficient in any respect.
We propose in paragraph (b) of subsection (4) that there should be a period of four years, running from the date on which purported enforcement action was taken, during which the planning authority would be able to take further enforcement action in respect of the same breach of planning control.
We think that this is a necessary safeguard, which should be included in the time-limits provisions, to enable planning authorities to take enforcement action in the circumstances I have described. Without a provision on these lines, a planning authority could be prevented from taking enforcement action by a deficiency in the first notice it issues. I hope therefore that my noble friend will accept that the words he wishes to omit should remain in subsection (4)(b) of new Section 171B.
§ Lord Coleraine
I shall consider what my noble friend has said with my advisers before deciding what to do with the measure. In the meantime I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Hollis of Heigham moved Amendment No. 23:
Page 6, line 29, at end insert:
§ ("(5) For the purposes of subsection (1) above, the Secretary of State shall, after consulting such persons as appear to it to be concerned, issue regulations specifying the circumstances in which operations are to be regarded as substantially completed.").
§ The noble Baroness said: I shall be brief. The point of Amendment No. 23 is to discover what the words "substantially completed" may mean. Clause 172 of the recodified Act refers to all breaches of planning control as being immune after four years from the date of the breach. In this Bill there is a useful separation between a change of use, for which an instant breach is clear cut, and a development which may occur over a period of time. In the latter case the phrase "substantially completed" applies. I believe that local authorities would find it helpful if the Secretary of State were to issue guidance after appropriate consultation. Will the Minister indicate whether that will follow? I beg to move.
§ Lord McIntosh of Haringey
I drafted Amendment No. 23 which has been ably moved by my noble friend. I should make it clear that the use of the word "it" with reference to the Secretary of State is deliberate. This implies no disrespect to Mr. Michael Heseltine who is an old friend of mine. However, I believe the time has come when we should make a deliberate attempt to remove sexist language from our legislation. That is the intention of the amendment.
There are a number of alternative ways of achieving that objective. It has been suggested that we should 1315 use the words "he or she" on every occasion. I believe that would be extremely clumsy. The other alternative is to use the words s(he) or s/he. I do not find that alternative very attractive either. Whenever possible we use the plural rather than the singular in order to avoid sexist language in our writing. I hope that we have got away from using sexist language in our informal language as far as possible.
I suggest that there is a good precedent to be found in a number of states in the United States of America where the word "it" is used when referring to the Secretary of State. As is frequently pointed out, the Secretary of State is an office and not a particular person. When Mrs. Margaret Thatcher was Secretary of State for Education, it was not incongruous to refer to the Secretary of State as "he" or "him". No one thought that that was peculiar as one was referring not to an individual but to an office of state.
It is also the case that in legislation the word "person" is used to refer not only to an individual but also to an organisation or a company. That organisation or company is referred to as "him" or "he". We are just as far away from rational thinking when we use the word "person" when referring to the Secretary of State or any other individual. If we wish to abolish sexist language from legislation, it seems that the word "it" is a logical and rational term to use when referring to a person or to a Secretary of State. That may seem a strange innovation to the Committee, but I believe it would rapidly become accepted and would cause no difficulty whatever. It would free us from the quite unnecessary and damaging charge of sexism in our language.
I understand that the word "it" is an attempt to use non-sexist language. However, I am sure the noble Lord knows that this is unnecessary because the provisions of Section 6 of the Interpretation Act 1978 state that:unless the contrary intention appears, words importing the masculine gender include the feminine",that is, the masculine embraces the feminine.
§ Lord McIntosh of Haringey
That is exactly what I am objecting to and that is why we are introducing this provision.
First, I must say that I am delighted, being of the masculine gender, to be able to embrace the feminine. The reference to "substantially completed"—that is, substantially completed by the end of the four-year "immunity" period following the date on which the operations started—is taken directly from the recommendation in the Carnwath Report on which the revised provisions for statutory time limits on enforcement action by the planning authority are based. We think this is a reasonable approach, bearing in mind the variety of circumstances with which planning authorities will be dealing. The question whether particular operations have been substantially completed will be—as is usual in planning jurisdiction—"a matter of fact and degree" for planning authorities, and the Secretary of State on appeal, to decide.
1316 We appreciate the noble Lord's wish to help planning authorities by having a more precise definition specified in regulations made by the Secretary of State; but we seriously doubt whether any such regulations could satisfactorily define what is meant by "substantially completed". If it would be helpful, we would be prepared to consider issuing guidance in a DoE and Welsh Office circular, following enactment of the Bill, about the intention of these provisions, giving some indication of what is meant by the words "substantially completed". We would consult interested organisations, including the local authorities' associations, about any such guidance. I hope therefore that the noble Lord will not press for a regulation-making power on this point as we see immense practical difficulties in that approach.
§ Baroness Hollis of Heigham
I thank the Minister for that extremely helpful response which we welcome. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Clause 29 agreed to.
§ Clause 5 [Enforcement notices]:
Baroness Hollis of Heigham moved Amendment No. 24:
Page 6, line 37, leave out from beginning to end of line 45 and insert:
- ("(1) Where it appears to the local planning authority that there has been a breach of planning control they may—
- (a) issue a notice (in this Act referred to as an "enforcement notice") or
- (b) grant planning permission, either unconditionally or subject to such conditions as they think fit.
- (2) Where an enforcement notice is issued it shall be served —")
§ The noble Baroness said: This is a rather more substantial amendment. The concern of the Bill throughout—this was also the theme of the Carnwath Report—is to bring all development activity, including desirable activity, within the framework of planning law. For all such activity the proposers must seek and obtain authorisation. At the moment the only tool that planning authorities can use is the enforcement procedure. That was designed to regulate the undesirable and unacceptable. Now local authorities have to use it for acceptable but unauthorised activities. We do not have any other method of progress.
§ We seek a mode of bringing within the planning framework those who are law abiding enough to seek both planning permission and pay fees. It seems sensible therefore to introduce a non-punitive way of making the planning system apply fairly to all. That is a move that Carnwath desires. The amendment covers not only an enforcement notice but also retrospective planning permission. I hope the Minister will accept the amendment. I beg to move.
§ Baroness Blatch
As we understand it, this amendment is intended to provide planning authorities with two alternative procedures for dealing with what appears to them to be a breach of control. While we can appreciate why authorities might, in some 1317 circumstances, be willing to proceed at once to grant planning permission for the breach of control, there appear to be two serious objections to this proposal.
First, by granting permission, they would effectively be pre-judging the important question whether, in fact and in law, a breach of planning control had actually taken place. In effect, they would be by-passing the appeal provisions in Section 174 of the 1990 Act, which enable the recipient of an enforcement notice to appeal to the Secretary of State against it, on the ground that what is alleged in the notice does not constitute a breach of control. We think the appeal provisions are an essential safeguard in the enforcement process; and it would be unfair to the recipient of a planning permission, granted by virtue of the proposed subsection (1)(b), in the proposed amendment, to be deprived of the opportunity of arguing that no planning permission was in fact needed. This would be particularly so in the case where the authority decided to impose onerous conditions on its grant of planning permission and later sought to enforce those conditions.
Secondly, the amendment appears to assume that the planning authority would always be able to identify the breach of control correctly. However, as the Committee will know, it is sometimes very difficult to be sure about exactly what is taking place unlawfully on any particular site, especially if it takes place behind closed doors. We think this would be too haphazard a foundation on which to base any grant of planning permission. For avoidance of doubt, I must distinguish this from the "deemed planning application" in Section 177 of the 1990 Act. That procedure is different from what is proposed in the amendment because the "deemed application" arises directly from the allegation made by the planning authority in the enforcement notice.
We think that what is proposed in the amendment is bound to result in unfairness to recipients of a grant of planning permission in these circumstances; and we seriously doubt whether planning authorities would be able to grant well-founded planning permissions of this kind. And, even if we are mistaken in this, there appears to be no requirement for the recipient of the permission to implement it. I hope that the noble Baroness will not press her amendment.
§ Baroness Hollis of Heigham
I find this a slightly curious reversal of roles. We are asking for a more relaxed attitude and the Minister is pressing for a more stringent attitude. There is a point of substance here. All we have is a somewhat punitive way of controlling things that, as I say, may be desirable but for which, so far, planning permission has not been sought. I think that there is a point of substance here. With the permission of the Committee I should like to withdraw the amendment, but we may wish to return to it at Report stage.
§ Amendment, by leave, withdrawn.
I beg to move that the House be resumed. In moving this Motion, perhaps I may suggest that the Committee stage begins again not before 8 p.m.
1318 Moved accordingly, and, on Question, Motion agreed to.