§ 3.14 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 again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 12 [Planning obligations]:
Lord Coleraine moved Amendment No. 78:
Page 19, line 45, after ("(a)") insert ("subject to any agreement to the contrary").
§ The noble Lord said: In speaking to Amendment No. 78 I understand that the Committee will also be considering Amendments Nos. 81 and 83 in my name, Amendment No. 84 in the name of the noble Lord, Lord Ross of Newport, and the government Amendments Nos. 85, 87, 88 and 90.
§ Amendment No. 78 is intended to make the operation of planning obligations more flexible. The amendment is drafted to apply to planning agreements but the principle applies equally to unilateral undertakings.
§ Subsection (3) of new Section 106 would make the planning obligation enforceable against the person entering the obligation and any person deriving title from that person. If one takes the case of a freeholder who has entered into a planning obligation, he may grant a lease of the development site to a developer and convey away the freehold reversion to an investment company. Under the terms of the Act as amended the planning obligation would be enforceable against all three of those people to a greater or lesser extent.
§ The purpose of the amendment is to make it possible for the agreement with the planning authority to release one or more of the persons who might otherwise be liable from liability for the matters which are never likely to concern them.
§ Amendments Nos. 81, 83 and 84 relate to the proposed new Section 106A of the 1990 Act which provides for planning obligations to be modified or 548 discharged by agreement between a person against whom the obligation is enforceable and the planning authority. In that respect Section 106A replaces the inappropriate procedure of application to lands tribunals by which it was found possible to have some planning agreements discharged in the past.
§ The proposed new section is to be welcomed as an aid to flexibility, which leads to efficient planning. It is welcomed by the Law Society and other interested organisations. However, the Bill would provide that the procedures cannot be exercised for five years after the planning obligation is entered into or after such greater or smaller number of years as regulations may prescribe.
§ I can see no reason of principle why the hands of developers and planning authorities should be tied by any such time limit. The effect of Amendments Nos. 81 and 83 is to delete the time limit from the Bill altogether. The effect of the amendment in the name of the noble Lord, Lord Ross of Newport, is to allow planning obligations to be varied but only when the terms of the original agreement so provide. I hope that the noble Lord will agree that there is no great reason of principle why Amendment No. 84 should be preferred to the more flexible amendments, Nos. 81 and 83, which I propose or why there should be a time limit imposed by the statute to cover the period during which planning agreements may not be modified or discharged. I submit that it can hardly matter how long ago an obligation was entered into. The question at any time must be whether it is still appropriate. I commend the amendment to the Committee.
§ Lord Ross of Newport
The Committee has many amendments to discuss and I shall therefore be brief. I welcome the amendments put forward by the noble Lord, Lord Coleraine. I agree that it is important to have more flexibility in obligations than in conditions to a permission. All that is sought is to try to achieve that aim by inserting the words after "prescribed" into this clause which covers Section 336 of the 1990 Act.
§ Baroness Blatch
In responding to this amendment, I shall speak also to Amendments Nos. 85, 87, 88 and 90 which appear on the Marshalled List under my name. Amendment No. 78, which has been tabled by the noble Lord, Lord Coleraine, would allow the parties to a planning obligation to agree between them that any burdens on the developer, as original covenantor, should be extinguished once he disposes of his interest in the land. However, as we have drafted the new Section 106, this amendment is unnecessary since subsection (2) already allows obligations to be entered into with conditions.
Amendments Nos. 81 and 83 are linked. They would, as the noble Lord said, enable a local planning authority to discharge or modify a planning obligation at any time without waiting for the five-year period that we have provided to elapse. Because the provisions of new Section 106A largely carry through to new Section 106B, the Secretary of State would at appeal also be able to agree to modification or discharge at any time.
The Government quite deliberately concluded that there should be an interval between an obligation 549 being entered into and the right to apply for its discharge or modification. The whole basis of our policy is that the grounds for such discharge or modification should be that the obligation no longer serves a useful purpose; we thought that a time interval was entirely consistent with these limited grounds of appeal. Nothing in these provisions would prevent the local planning authority discharging an obligation by deed at any time. We shall consider clarifying this point on the face of the Bill by an amendment at a later stage in its passage.
I now turn to Amendment No. 84. While I understand the reasoning that has led to this amendment being proposed by the noble Lord, I hope that he will not press it. I believe that it is mistaken in what it seeks to achieve.
Notwithstanding its brevity, the amendment is of some substance. New Section 106A provides that an application for modification or discharge of a planning obligation may be made after a period of five years has elapsed since it was entered into or such other period as may be prescribed by regulations. This amendment would require instead that the period should be prescribed in the obligation itself.
I suggest that this amendment is mistaken for three reasons. First, I think it is largely redundant because under new Section 106 (2)(b) obligations may be created for a limited period only. Secondly, the amendment would create inconsistency and confusion, with rights of application and appeal arising after varying periods. Thirdly, there would be scope for abuse, with developers seeking to minimise and local authorities seeking to maximise the period concerned.
Amendment No. 85 enables an authority, on application, to discharge a planning obligation which no longer serves a useful purpose. Thus an authority to which application is made under new Section 106A(1) for a planning obligation to be modified or discharged has three options: to determine that the obligation shall continue to have effect without modification, or to discharge it, or to modify it.
Amendments Nos. 87 and 88 establish a right of appeal to the Secretary of State against a local planning authority which fails to give notice of its determination of an application to discharge or modify a planning obligation. The amendments make it clear that there is a right of appeal against a deemed refusal of the application. I believe these amendments give greater certainty to an applicant, who could otherwise be left in limbo by an authority which chose to determine his application but then failed to give notice of its decision.
Amendment No. 90 fulfils the pledge that I made during the Second Reading debate that the Government would bring forward an amendment to enable the Crown to enter into planning obligations when disposing of its land, enforceable against someone who later acquires a private interest in that land. That provision parallels Section 299 of the 1990 Act which enables the Crown to dispose of its interest in land with the benefit of planning permission. It will enable the Crown, when disposing of its land in this 550 way, to restrict its future use to protect its own interests or to meet a planning objective of the local authority—or in fact both. I hope that the Committee will agree that this is a useful reform. The amendment also ensures that the local planning authority may not enforce a planning obligation against land which for the time being is Crown land without the consent of the "appropriate authority".
With the explanation that I have given I hope that the Committee will not press Amendments Nos. 78, 91, 83 and 84 and that Amendments Nos. 85, 87, 88 and 90 will be accepted.
§ Lord McIntosh of Haringey
I had thought that in dealing with this group I should speak mainly to Amendment No. 90. I was taken aback by the statement of the noble Lord, Lord Ross, to the effect that in moving Amendment No. 84, which seemed reasonable to us, he would also be supporting Amendments Nos. 81 and 83, which are certainly not reasonable and certainly we should not accept and agree very strongly with the Government's arguments.
I suggest that the advantage of Amendment No. 84, tabled in the name of the noble Lord, Lord Ross, is that it removes the ability of the Secretary of State to prescribe a general period during which appeals could not be made. I appreciate the point made by the Minister; namely, that it is undesirable to have too many different periods in which appeals can or cannot be made. But the power given to the Secretary of State by this section as drafted is rather general and it would be desirable if it were amended in the way suggested by the noble Lord, Lord Ross.
However, the proposals made by the noble Lord, Lord Coleraine, in Amendments Nos. 81 and 83 seem to us to be thoroughly undesirable, very much for the reasons given by the Minister; namely, that if one enters into a planning obligation, it seems to cast doubt on its value if those who have entered into it can immediately say that they want it removed or modified. In the Minister's speech she made the point that there should be a reasonable time interval, which seems to me to be entirely just. I hope that the Committee will not press the amendments because in such circumstances we should be obliged to support the Government.
I turn to Amendment No. 90. We are in favour of the principle of extending these obligations to Crown land. We welcome the offer that was made in the consultation paper in 1989 that government departments should be able to enter into such agreements. However, the wording of Amendment No. 90 leaves something to be desired. For most planning obligations there are three ways in which enforcement can be achieved: by an injunction, by specific performance and by provision for damages. But in subparagraph (aa) (i) of Amendment No. 90 the opportunity for an injunction is specifically removed. It may well be that there is a legal —I might even say legalistic—argument that it is difficult for the Crown to obtain an injunction against itself. I do not know what lawyers would say about such a proposition.
551 However, I suggest to the Committee that some way must be found to ensure that the obligations with respect to Crown land are as strong as they are with respect to other land and other applications. If one cannot proceed by way of an injunction, some other way must be found. I hope that the Minister will be able to tell the Committee that she understands that this matter deserves further consideration.
Another problem with Amendment No. 90 is the way in which it restricts the exercise of the power to enter land in relation to Crown land. That provision is found in Section 299A(3) (b) (toward the bottom of page 3 of the Marshalled List). Surely again the power to enter should be as strong for Crown land as it is for other land. If there are reasons of national security to be considered, then they should be spelt out in the amendment. That restriction should be far more specific and limited than it is in the present wording of the amendment.
So although the principle behind this very important Amendment No. 90 is a good one, there are defects which we should like to see remedied before the Bill takes its final form.
§ 3.30 p.m.
§ Lord Campbell of Alloway
There is an objection to the grant of an injunction against the Crown. In that case a declaration would ordinarily be wholly sufficient.
§ Lord Roskill
I have not checked but I believe that the Crown Proceedings Act 1947 prevents the grant of an injunction against the Crown. As was said by the noble Lord, Lord Campbell, one overcomes the difficulty by providing for a declaration against the Crown. Bearing in mind all the difficulties that used to arise before the Crown Proceedings Act was passed by the Attlee Government, the then Government insisted that there should not be jurisdiction in the courts to grant injunctions against the Crown. That is my recollection.
§ Lord McIntosh of Haringey
I am glad to have provoked the noble Lord and the noble and learned Lord into debate on the matter. Perhaps in response the Minister will say whether there is any reason why a declaration should not be provided for instead of an injunction.
§ Baroness Blatch
I welcome the comments made by the noble Lord opposite. A number of technical points have been raised. I hope that the amendment and the thrust behind it will be accepted by the Committee. I shall ensure that we take the advice of counsel about the points raised during the course of our discussion on Amendment No. 90.
§ Lord Ross of Newport
I wish to respond to the Minister's comments on Section 82 and my Amendment No. 84. I take on board the point that the provision might lead to an unacceptable increase in the number of applications for modifications. It is all very complicated, but it has been suggested that the increase could be dealt with under Section 70 of the 1990 Act. I did not wish to give the impression when I followed the noble Lord, Lord Coleraine, that he 552 was necessarily supporting what I was putting forward or that I was supporting what he was putting forward. He gave the Committee a description of the meaning of Amendment No. 84. I wished to curtail the discussions because we shall be here until a very late hour.
§ Baroness Blatch
I stand by the explanation that I gave of Amendment No. 84. However, I shall go back and seek advice on the point that the noble Lord raises.
§ Lord Coleraine
I do not propose to press any of the amendments standing in my name. Amendments Nos. 81 and 83 merely provide that there should be no hidebound time limit on applications to vary, modify or discharge planning obligations. If the noble Lord, Lord McIntosh, believes that the provision is a licence for anyone who has entered into a planning agreement immediately and without planning ground to apply for it to be discharged or modified he is slightly over-exaggerating the eggs in his omelette.
I go a long way in supporting Amendment No. 84 tabled by the noble Lord, Lord Ross of Newport. It goes part way towards my amendment except for the fact that allowing the time limits to be prescribed in agreements would be an invitation to planning authorities to seek to impose their planning agreements over a long period—perhaps 99 years. If one allows the parties to planning agreements to fix their own limit of time during which the agreement must be sacrosanct it would be right to set down in statute an overall limit prescribing the maximum length of time during which a planning agreement shall be inviolate.
I was pleased to hear from my noble friend that Amendment No. 78 is unnecessary. I hope that it is unnecessary and that her comments apply as much to obligations under unilateral undertakings as they do under planning agreements. I suspect that to be the case. I shall read what she has said and in the meantime beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Blatch moved Amendments Nos. 79 and 80:
Page 20, line 8, leave out ("in whose area the land is") and insert ("by whom the obligation is enforceable").
Page 20, line 30, leave out ("in whose area the land is") and insert ("so identified").
§ The noble Baroness said: These amendments have already been spoken to. I beg to move.
§ On Question, amendments agreed to.
§ [Amendment No. 81 not moved.]
Baroness Blatch moved Amendment No. 82:
Page 20, line 43, after ("authority") insert ("by whom the obligation is enforceable").
§ On Question, amendment agreed to.
§ [Amendments Nos. 83 and 84 not moved.]
Baroness Blatch moved Amendment No. 85:
Page 21, line 13, leave out ("have effect subject to the modifications specified in the application") and insert ("be discharged").
§ On Question, amendment agreed to.553
Lord McIntosh of Haringey moved Amendment No. 86:
Page 21, line 37, leave out from beginning to end of line 12 on page 22 and insert:
("(8) The decision of a local planning authority under this section shall be final, subject to the provisions under section 84 of the Law of Property Act 1925 (power to discharge or modify restrictive covenants affecting land).").
§ The noble Lord said: This is a thoroughly conservative amendment in the best sense of the word. In other words, we are seeking to preserve a provision in existing legislation which appears to be thoroughly desirable; namely, that under the Law of Property Act 1925 a proposal to allow planning obligations to be modified or discharged on appeal applies to the Lands Tribunal. It applies only where agreement is reached with the local planning authority or on application to the Lands Tribunal.
§ The Bill proposes that there should be an appeal to the Secretary of State. We believe that such an appeal should take place only if there is a failure on the part of the local planning authority to determine an application for modification or discharge of a planning obligation. In all other circumstances, since an obligation has or should have been entered into by agreement between the local planning authority and the applicant, the local authority's consent should be required on any modification or discharge. That decision should be final. We seek to preserve the existing situation and not to bring into play the modifications proposed by the Bill.
§ I must explain to Members of the Committee who were not present in the Chamber 10 days ago at 11 o'clock, that the amendment is put forward in the context of our general opposition to the proposal that planning obligations can exist without the consent of the local planning authority. We still take the view that there should be planning agreement between applicants and the local planning authority rather than unilateral undertakings made by applicants and agreed to on appeal by the Secretary of State. However, we must return to that matter on Report because it is a broader issue into which it is inappropriate to enter at length at this stage. I beg to move.
§ The Chairman of Committees (Lord Aberdare)
If this amendment is agreed to I cannot call Amendments Nos. 87 and 88.
§ Lord Renton
It is not merely because I am a Conservative that I support the amendment. I must disclose that in respect of later amendments I shall suggest that the decision of the local planning authority should not be found. However, in the existing circumstances relating to planning agreements it is only right that there should be a degree of finality and certainty. Therefore, the amendment is worthy of my noble friend's consideration.
I am glad to see that in the proviso relating to Section 84 of the Law of Property Act 1925 the power to discharge or modify restrictive covenants will be retained. That is most important because, whatever degree of finality is given to the local planning authority in such matters, there must be a degree of flexibility with regard to restrictive covenants which 554 may cease to be necessary. Therefore, subject to what my noble friend may say, I support the amendment. I should add that it commends itself to the Association of District Councils and I understand also to the CPRE.
§ Lord Campbell of Alloway
I support the amendment. I hope that my noble friend will not reject it. If she is uncertain, then I hope that she will think about it and return to the matter at a later stage.
§ Baroness Blatch
Amendment No. 86, which stands in the name of the noble Lord, Lord McIntosh of Haringey, would remove the provisions for an appeal to the Secretary of State and restore the right to apply to the Lands Tribunal under Section 84 of the 1925 Act, as my noble friend Lord Renton pointed out. Such applications may only lie on the ground of legal obsolescence and Section 84 encompasses restrictive covenants only.
The Government's intentions, embodied in Clause 12, are to provide for appeals on the grounds that an obligation no longer serves a useful purpose and that such appeals should lie in relation to positive as well as restrictive covenants. Our proposals were widely supported when we consulted about them, and we see this as a wrecking amendment.
In response to the comments made by my noble friend Lord Renton, it is worth noting that the proposal to provide for modification and discharge of planning obligations was supported by 135 respondents; it was opposed by 40; and 54 made no comment. As has been mentioned, the proposal was opposed by the local authority associations except for the ADC and the Law Society. Support in principle came from the RIBA, the RICS, the RTPI, the Local Government and Planning Bar Association, the CBI and the house-builders federation. I hope that the noble Lord will not press his amendment.
§ Lord McIntosh of Haringey
The weight of opinion which the Minister expressed must carry us to a certain extent. We must be aware that even though, as the noble Lord, Lord Renton, rightly said, the Council for the Preservation of Rural England is in favour of the amendment, there is substantial disagreement about what we are trying to achieve with the amendment.
With the leave of the Committee, I shall take away the amendment and think about it again. I may return to this matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch moved Amendment No. 87:
Page 21, line 41, leave out ("determine an application within a period prescribed under") and insert ("give notice as mentioned in").
§ On Question, amendment agreed to.
Baroness Blatch moved Amendment No. 88:
Page 21, line 45, at end insert:
("(1A) For the purposes of an appeal under subsection (1) (a), it shall be assumed that the authority have determined that the planning obligation shall continue to have effect without modification.").
§ On Question, amendment agreed to.555
Lord Ross of Newport moved Amendment No. 89:
Page 22, line 12, at end insert:
§ ("Register of planning obligations.
§ 106C.—(1) Every district planning authority and the council of every metropolitan district or London borough shall keep, in such manner as may be prescribed by a development order, a register containing such information as may be so prescribed with respect to planning obligations, their modification or discharge.
§ (2) A development order may make provision—
- (a) for the entry relating to any planning obligation, and everything relating to any such obligation, to be removed from the register in such circumstances as may be specified in the order; and
- (b) for requiring a county planning authority to supply to a district planning authority such information as may be so specified with regard to planning obligations enforceable by the county planning authority.
§ (3) Every register kept under this section shall be available for inspection by the public at all reasonable hours.
§ (4) A local planning authority shall not confirm any planning obligation before the end of the period of 21 days beginning with the date that it was placed on the register under subsection (1); and shall take into account any representation relating to the planning obligation received in the 21 day period.").
§ The noble Lord said: Although the amendment is a fairly lengthy one, I intend to be brief. The amendment would establish a register of planning obligations entered into under the new Sections 106 to 106B. Since planning controls are exercised in the public interest, the public should be able to find out details about obligations which affect them. Furthermore, the authorities should consider such public comments on proposed obligations before they confirm them.
§ I suspect that in reply the Government may say that that would be covered by the registration of the obligation as a land charge. However, information about land charges is not readily available to the general public. One has to go to some considerable trouble to find it. The Government should take this matter on board and I hope that they will treat my amendment sympathetically. I beg to move.
§ Baroness Blatch
It is true that I have some sympathy for the objectives of the noble Lord's Amendment No. 89, which would create a register of planning obligations for inspection by the public. But again, I do not think such a separate register is necessary. It would be more logical to extend the existing planning register which local planning authorities must keep under Section 69 of the 1990 Act. The main problem I see with that is that not all planning obligations are associated with a grant of planning permission; some are merely private agreements between a landowner and the local planning authority.
More importantly, however, new Section 106(9) provides that all planning obligations shall be local land charges, recorded on the local land charges register. As many Members of the Committee will know, under Section 8 of the Local Land Charges Act 1975 any member of the public has a right of access to that register already. Local land charges registers are widely known. They are the registers in which we, or 556 our solicitors, conduct a search if we are purchasing property. The registers are maintained by every London borough or district council. A local land charges register contains a description of the charge, including a reference to the relevant statutory provision. It will also say where relevant documents may be inspected. Those may be documents, maps or plans, without which the nature and effect of the charge cannot be readily understood. From what I have said, the Committee will conclude that I think the right of public access is already covered.
I am perplexed by the Section 106C(4) in the amendment. That suggests that a planning obligation shall be registered but not confirmed by the local planning authority until a 21-day period has elapsed, during which it shall take account of any representation received. This would be an odd provision. It does not sit well with provision for entering into obligations by undertaking, which would not require the agreement or confirmation of the local planning authority.
Neither does it fit in with obligations entered into by agreement. Once the parties have entered into an obligation by agreement, it is hard to see what inviting representations would achieve or how account could be taken of them. Once the obligation was in being, the local planning authority could not alter it without the consent of the other party. There is certainly no provision for an obligation needing to be confirmed. The principle of local authorities keeping the public informed about such obligations is a good one; but they cannot simply change their terms in response to representations received; and to think that they could do so would create entirely false expectations. I hope that the noble Lord will not press the amendment.
§ 3.45 p.m.
§ Lord McIntosh of Haringey
I rise to my feet out of some degree of ignorance about the local land register. I hope that the Committee will forgive me and I hope that I am not wasting its time. I have looked into the availability of the local land register. It is true that that became available for the first time either earlier this month or last month. However, it is available in a most inconvenient form. It is not true that the register is held by each local authority. It is held at the offices of the land registry; for example, the registers of some London boroughs are held in Harrow, in Croydon and some at quite a distance outside London. They are by no means as accessible as they should be. The forms to be filled in in order to obtain information from the register, other than when there is an interest of the person making the inquiry —in other words, the general access which is talked about —are very complicated. It has almost become a professional business, as though it were confined to solicitors.
I wonder whether the availability of the local land charges register is an adequate answer to the point raised by the noble Lord, Lord Ross.
§ Baroness Blatch
The noble Lord, Lord McIntosh, addresses a point about the mechanics of rather than rights to access. I hope that he is not challenging what I said about the right to see the registers. It is possible for me to take back to the department a request that 557 the registers should be made more widely available or access made easier to them. However, rights of access are embodied in the law.
§ Lord McIntosh of Haringey
I certainly was not accusing the Minister of misleading the Committee. However, a right of access is no use unless it is possible for that to be enforced. My own anxiety is that because of the way in which the land registry has organised itself and the way in which it has grudgingly allowed public access, it is not as convenient as it should be. I am grateful to the Minister for saying that she will take back this matter for further consideration.
§ Baroness Blatch
It would not be in my mind to take back the amendment for further consideration. I shall be happy to take back to my department the issue of easier access to the existing register. However, I could not reconsider the issue of the creation of a new register.
§ Lord Ross of Newport
This has been a helpful debate and I am very grateful for the intervention of the noble Lord, Lord McIntosh, and for the undertaking which I accept is nothing to do with my amendment. I can think of problems regarding access; for example, where I used to live one planning authority represented three councils. I can see that people may go to the wrong offices in the first place. It should be well advertised as to exactly where the register can be inspected. However, with those comments, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch moved Amendment No. 90:
Page 22, line 12, at end insert:
("(2) In section 296(2) of that Act (exercise of powers in relation to Crown land) after "authority-" there is inserted—
(aa) in relation to land which for the time being is Crown land—
(3) After section 299 of that Act there is inserted—
§ "Crown planning obligations.
§ 299A.—(1) The appropriate authority in relation to any Crown interest or Duchy interest in land in the area of a local planning authority may enter into a planning obligation enforceable by the relevant planning authority against any person with a subsequent private interest deriving from the Crown interest or the Duchy interest, to the extent of his derivative interest.
§ (2) For the purposes of subsection (1) a private interest is a subsequent private interest if it is acquired after the planning obligation is entered into.
§ (3) The consent of the appropriate authority must be obtained to—
- (a) the enforcement by injunction of a planning obligation against a person in respect of land which is Crown land; and
- (b) the exercise, in relation to Crown land, of the power to enter land conferred by section 106(5) (as applied by subsection (4)).
§ (4) Subsections (2) and (4) to (9) of section 106 and sections 106A and 106B apply to a planning obligation entered into under this section as they apply to an obligation entered into under that section.
- (a) "a planning obligation" means an obligation falling within any of paragraphs (a) to (d) of section 106(1); and
- (b) "the relevant planning authority" means the authority identified in accordance with section 106(7) (d) (as applied by subsection (4))."").
§ On Question, amendment agreed to.
§ On Question, Whether Clause 12, as amended, shall stand part of the Bill?
§ Lord Coleraine
I should like to raise with my noble friend one or two anxieties which have been expressed to me by the Law Society since we last dealt with Clause 12. They concern the new concept of unilateral undertaking and how it fits into the new clause. It presents a number of problems. I gave my noble friend some notice, though not a great deal, that I wished to raise these matters. If she is not able to reply to them this afternoon I hope that she will do so before the next stage of the Bill is reached.
The first point relates to drafting, and arises from the fact that unilateral undertakings are novel forms of planning obligations. Judging from the way they were received with such distaste 10 days ago and late at night by the noble Lord, Lord McIntosh,—to which he referred this afternoon—they form a significant part of the Bill. Therefore I must ask why the parliamentary draftsman has been so secretive regarding the way in which he has incorporated them into the Bill, leaving them to be understood from the catch-all words, "or otherwise" in the phrase, "by agreement or otherwise" in line 17 at page 19. That is unnecessarily secretive drafting. I hope that my noble friend will propose something better at the next stage. We have been using the expression, "unilateral undertaking" and that expression, therefore, should be introduced into the Bill.
That is a small drafting point. I hope I will persuade my noble friend that other amendments are needed which would render the clause unnecessary. That would enable us to keep separate the concepts of planning agreement and unilateral undertaking, and to dispense with the awkward and clumsy "planning obligation" which does not sit well either with what practitioners are used to or, in my opinion, with the other subsections of the clause.
To combine planning agreements and unilateral undertakings together as planning obligations is unfortunate. It obscures the fact that planning agreements and unilateral undertakings are quite separate beasts. The planning agreement forms part of the normal decision-making process of the planning authority, whereas the unilateral undertaking is properly treated as part of the appeal procedures. I favour separate treatment for the two types of obligation, or at least that the unilateral undertaking be taken away from the planning agreement and inserted later as a come-back for the applicant should he fail to obtain planning agreement. To put the two together is misleading to those who deal with this kind of legislation and is not appropriate to that which is being provided. If one did that one could keep the old concept of planning agreements. I know that the Law Society and practitioners generally would favour that course.
559 Other points that occur to me are that in bringing both planning agreements and undertakings together in one clause and calling them planning obligations we are losing several aspects of the old Section 106, which I believe it is desirable to retain. Planning obligations under the new section will be enforceable only by planning authorities. That certainly seems to be the case with unilateral undertakings. However, I am advised that planning agreements in some cases impose obligations on planning authorities. I believe it would be right not to restrict planning agreements in future so that they can only be enforced by the planning authority; but that the matter should be left open for developers, if the need arises, to enforce those parts of planning agreements which the authorities inserted for the benefit of the developer.
The existing Section 106 of the 1990 Act is more liberal than the Bill regarding what may be included in a planning agreement. It is not restricted to the four points with which the Bill deals. It may be right and proper to restrict the Secretary of State to certain specific points that can be put into a unilateral undertaking. But it seems to me that it would be right for planning agreements to continue to be the more flexible tool that they were in the past rather than their being restricted to contain only certain specified obligations.
I hope that my noble friend will take those points on board and reconsider the clause.
§ Lord McIntosh of Haringey
The noble Lord, Lord Coleraine, made a helpful and cogent intervention. I confess that I had not put the debate of 10 days ago together with the debate of this afternoon and considered in full how defective Clause 12 was. He has performed a service in reminding the Committee of the debate which took place at the first Committee session to which I referred only briefly this afternoon.
The fundamental objection to the concept of unilateral undertakings is clear; namely, that the Secretary of State and an applicant between them can agree on obligations which affect the local authority but to which the local authority has not consented. When I put to the Committee last time that that might involve a local authority in expenditure or activities to which it would not otherwise have given priority, a satisfactory answer was not received.
A unilateral undertaking could involve local authorities in expenditure for the provision of physical access, services, the maintenance of facilities such as parks, public conveniences, car parks and so forth. That seemed to both us and the local authorities to be a serious derogation from their responsibility to the local inhabitants; that they should only be involved in expenditure to which they had consented.
Therefore it is a fundamental principle that is involved in the introduction of the unilateral obligation. We sought to overcome it in an earlier amendment by taking out the words, "or otherwise", to which the noble Lord, Lord Coleraine, rightly objects, and replacing them with the words, "with the authority". The provision would then read,by agreement with the authority".560 Even if that were not accepted the noble Lord is right in saying that there are many differences between a unilateral undertaking—which is what the Government seek to introduce—and the old-fashioned planning agreement. They are different in the scope which ought to be permitted for them; they are different in the way in which they ought to be enforced and in the timescale; they are different in many ways which have arisen in the discussion this afternoon.
Noble Lords opposite indicated support for an amendment which would seek to preserve a different regime for modification or discharge of such an agreement. They and we would have found it easier to persuade the Government of the validity of our argument if there had been the distinction between the planning agreement and a unilateral undertaking as suggested by the noble Lord, Lord Coleraine.
On looking at Clause 12 as a whole I am bound to say that I find it profoundly unsatisfactory. The amendments which have been made by the Government do not go any significant way to relieving the problems which arise. Unless the Minister can give very good answers to the points raised I think, with apologies to the Committee for not having given notice, that I may find it necessary to seek the opinion of the Committee.
§ 4 p.m.
§ Baroness Blatch
In commending to the Committee that this clause stand part of the Bill I have to say that the clause enables a planning obligation to be entered into by means of an undertaking as well as by agreement. I also start from a very real understanding that noble Lords opposite do not like this arrangement in the clause. I do not see this as a developer's charter but rather as a mechanism to enable a log jam to be broken. Where there are planning objections to an otherwise acceptable development it seems altogether reasonable to allow the developer to bind himself to remove them.
The clause removes planning obligations that no longer serve a useful purpose to be discharged by the local planning authority or, on appeal, by the Secretary of State. We have quite deliberately limited the scope of an appeal and set down that an application under these provisions may not be made for five years or such period as may be prescribed by regulations.
Nothing in these provisions would prevent the local planning authority discharging an obligation by deed at any time. Such a deed could be accompanied by a second planning obligation in different terms from the first. But we will consider clarifying this point again on the face of the Bill by an amendment at a later stage of the Bill.
I have some details of instances where local planning authorities have been unable or unwilling to negotiate a reasonable planning agreement with a developer in order to overcome a planning objection to a development proposal, or have delayed the conclusion of such an agreement. There are limits to 561 what I can say and it would not be right for me to identify the parties to an appeal. I know of at least one case which is likely to go to the High Court.
Two cases centred around highway improvements. In one of these the inspector's report referred to an impasse over the adequacy of approach roads to the appeal site. He commented that the highway authority was holding out for an unnecessary level of provision and for an excessive contribution. There being no reasonable prospect of an agreement, he dismissed the appeal. In the second case the appeal was dismissed solely because of the lack of concluded agreements covering drainage works and highway improvements.
In my final example, the Secretary of State shared the inspector's view that access was a planning problem and his conclusion that a planning agreement would resolve it. In November 1989 the Secretary of State gave the parties 28 days to confirm the completion of an agreement. Over four months later the council wrote to say that it was not minded to enter into such an agreement. The Secretary of State had no alternative but to dismiss the appeal. I consider that in a number of these cases the local authority put obstacles in the way of resolving a planning objection to development; but they are evidence that undertakings may have a useful longstop role to play in breaking log jams of that kind.
My noble friend Lord Coleraine raised two important points. First, he believes that there should be separate legislative treatment of planning agreements and unilateral undertakings. Planning obligations are a useful umbrella concept. They embrace both planning agreements and unilateral undertakings. One may argue about how proposals should be enshrined in legislation but I believe that it makes sense to have a single provision covering the whole area of planning gain.
My noble friend's second point concerned the difference between Clause 12 and the present provision under Section 106. There is no substantive difference between Clause 12 and the present position under Section 106 of the 1990 Act. The specific provision to allow financial payments to be made is perhaps a little wider than the present provision, but it reflects practice. However, if my noble friend has particular examples of what can be done under the present provisions, but not under the Bill, I shall of course be very happy to consider them. I commend to the Committee that this clause shall stand part of the Bill.
§ Lord Coleraine
I thank my noble friend for her reply to the points that I raised in my intervention and of course I shall try to deal with that between now and the next stage. It will not have escaped the Committee's attention that I acknowledge and return the complimentary words addressed to me by the noble Lord, Lord McIntosh. He is endeavouring to wreck the clause whereas I am trying to improve it. Therefore, it will not surprise the Committee to learn that if he decides to divide the Committee I will support my noble friend.
§ Lord McIntosh of Haringey
I did not expect anything else. The situation is unsatisfactory in two ways. Of course, we must be grateful to the Minister for the care she has taken to respond both to my points and to those made by the noble Lord, Lord Coleraine. The trouble is that the clause she described is not the clause which is now to be on the face of the Bill, as amended. She described the planning obligation procedure as a longstop. It is not a longstop; it is an alternative to the planning agreement. The suspicion must be that, since it is not given longstop status—in other words, since there is not adequate incentive for developers to enter into agreements with local planning authorities—the planning obligation, the unilateral undertaking, will take over from the planning agreement rather than act as a longstop.
That is the fundamental difficulty with the clause as drafted and nothing that the Minister said, despite all the care she has taken to represent the issue fairly to the Committee, overcomes that difficulty. The kind of amendments that would be required if the noble Lord, Lord Coleraine, were to be satisfied would be quite far-ranging amendments, because they would set up these two separate concepts of a planning agreement and a planning obligation or a unilateral undertaking. If they were to be fulfilled they would require very major changes to the clause, which would have to come in the form of comprehensive government amendments at Report stage.
We have already expressed our deep dissatisfaction with the way in which the Government have presented a Bill and then sought at a very early stage—indeed the first stage—to amend and add to it dramatically. Surely the right course now is for the Government to take this clause back, to recognise the concerns that have been expressed from all sides of the Committee, and then bring forward a new Clause 12, or the equivalent, which provides adequate reflection of the anxieties expressed today and 10 days ago. It is only right that we should oppose the proposal that Clause 12, as amended, stand part of the Bill.
§ 4.7 p.m.
§ On Question, Whether Clause 12, as amended, shall stand part of the Bill?
§ Their Lordships divided: Contents, 172; Not-Contents, 52.564
|Division No. 1|
|Acton, L.||Borthwick, L.|
|Ailesbury, M.||Boyd-Carpenter, L.|
|Airedale, L.||Brabazon of Tara, L.|
|Alexander of Tunis, E.||Bridgeman, V.|
|Allerton, L.||Brightman, L.|
|Alport, L.||Brigstocke, B.|
|Ampthill, L.||Broadbridge, L.|
|Arran, E.||Brougham and Vaux, L.|
|Astor, V.||Butterworth, L.|
|Auckland, L.||Caldecote, V.|
|Belhaven and Stenton, L.||Campbell of Alloway, L.|
|Beloff, L.||Campbell of Croy, L.|
|Bessborough, E.||Carnarvon, E.|
|Blake, L.||Carnegy of Lour, B.|
|Blatch, B.||Carnock, L.|
|Blyth, L.||Cavendish of Furness, L.|
|Clanwilliam, E.||Macleod of Borve, B.|
|Coleraine, L.||Mancroft, L.|
|Constantine of Stanmore, L.||Margadale, L.|
|Cornwallis, L.||Marsh, L.|
|Cottesloe, L.||Merrivale, L.|
|Cox, B.||Mersey, V.|
|Cross, V.||Meston, L.|
|Cullen of Ashbourne, L.||Middleton, L.|
|Dacre of Glanton, L.||Monk Bretton, L.|
|Darcy (de Knayth), B.||Montgomery of Alamein, V.|
|Davidson, V. [Teller.]||Morris, L.|
|Denham, L. [Teller.]||Mottistone, L.|
|Derwent, L.||Mountevans, L.|
|Effingham, E.||Munster, E.|
|Ellenborough, L.||Nelson, E.|
|Elles, B.||Nelson of Stafford, L.|
|Elliot of Harwood, B.||Norrie, L.|
|Elliott of Morpeth, L.||Northbourne, L.|
|Erne, E.||Nugent of Guildford, L.|
|Faithfull, B.||Orkney, E.|
|Falkland, V.||Orr-Ewing, L.|
|Fanshawe of Richmond, L.||Oxfuird, V.|
|Flather. B.||Park of Monmouth, B.|
|Fraser of Carmyllie, L.||Pearson of Rannoch, L.|
|Fraser of Kilmorack, L.||Peel, E.|
|Gainford, L.||Pender, L.|
|Gainsborough, E.||Peyton of Yeovil, L.|
|Gardner of Parkes, B.||Platt of Writtle, B.|
|Gisborough, L.||Plummer of St. Marylebone, L.|
|Gladwyn, L.||Porritt, L.|
|Grey, E.||Quinton, L.|
|Grimthorpe, L.||Rankeillour, L.|
|Hailsham of Saint Marylebone, L.||Reay, L.|
|Hampton, L.||Renwick, L.|
|Hanson, L.||Rippon of Hexham, L.|
|Hanworth, V.||Ritchie of Dundee, L.|
|Harmar-Nicholls, L.||Rochester, L.|
|Harmsworth, L.||Romney, E.|
|Harris of Greenwich, L.||Roskill, L.|
|Harvington, L.||Ross of Newport, L.|
|Haslam, L.||Saltoun of Abernethy, Ly.|
|Henderson of Brompton, L.||Seear, B.|
|Henley, L.||Selkirk, E.|
|Hesketh, L.||Shannon, E.|
|Hives, L.||Shaughnessy, L.|
|Hood, V.||Skelmersdale, L.|
|Hooper, B.||Stanley of Alderley, L.|
|Hooson, L.||Strange, B.|
|Hunt, L.||Strathclyde, L.|
|Hunter of Newington, L.||Strathmore and Kinghorne, E.|
|Hylton-Foster, B.||Strathspey, L.|
|Ironside, L.||Swansea, L.|
|Johnston of Rockport, L.||Terrington, L.|
|Joseph, L.||Thomas of Gwydir, L.|
|Killearn, L.||Thomas of Swynnerton, L.|
|King of Wartnaby, L.||Thorneycroft, L.|
|Kinloss, Ly.||Tordoff, L.|
|Kinnaird, L.||Tranmire, L.|
|Knollys, V.||Trumpington, B.|
|Lauderdale, E.||Ullswater, V.|
|Lawrence, L.||Vaux of Harrowden, L.|
|Layton, L.||Wade of Chorlton, L.|
|Lloyd of Hampstead, L.||Westbury, L.|
|Long, V.||White of Hull, L.|
|Lucas of Chilworth, L.||Whitelaw, V.|
|Lurgan, L.||Windlesham, L.|
|Lyell, L.||Winstanley, L.|
|Lytton, E.||Wynford, L.|
|McGregor of Durris, L.||Young, B.|
|Mackay of Clashfern, L.|
|Ardwick, L.||Callaghan of Cardiff, L.|
|Attlee, E.||Carmichael of Kelvingrove, L.|
|Blackstone, B.||Castle of Blackburn, B.|
|Blease, L.||Cledwyn of Penrhos, L.|
|Boston of Faversham, L.||Clinton-Davis, L.|
|Bottomley, L.||Cocks of Hartcliffe, L.|
|Brooks of Tremorfa, L.||David, B.|
|Dean of Beswick, L.||Manchester, D.|
|Dormand of Easington, L.||Mason of Barnsley, L.|
|Ennals, L.||Milner of Leeds, L.|
|Gallacher, L. [Teller.]||Morris of Castle Morris, L.|
|Galpern, L.||Mulley, L.|
|Graham of Edmonton, L. [Teller.]||Nicol, B.|
|Hatch of Lusby, L.||Serota, B.|
|Hollis of Heigham, B.||Shackleton, L.|
|Houghton of Sowerby, L.||Stoddart of Swindon, L.|
|Howie of Troon, L.||Strabolgi, L.|
|Hughes, L.||Taylor of Gryfe, L.|
|Ilchester, E.||Turner of Camden, B.|
|Jay, L.||Underhill, L.|
|Jeger, B.||Wallace of Coslany, L.|
|Jenkins of Putney, L.||Walston, L.|
|Kilbracken, L.||White, B.|
|Llewelyn-Davies of Hastoe, B.||Williams of Elvel, L.|
|Lockwood, B.||Wilson of Rievaulx, L.|
|McIntosh of Haringey, L.|
§ Resolved in the affirmative, and Clause 12, as amended, agreed to accordingly.
§ 4.16 p.m.
Lord Renton moved Amendment N o. 91:
After Clause 12, insert the following new clause:
§ Right to appeal against planning decisions
§ (" .—After section 78 of the principal Act there is inserted—
§ "Right to appeal against planning decisions.
§ 78A.—(l) Where a local planning authority—
- (a) grant an application for planning permission for development which does not accord with the provisions of the development plan; or
- (b) grant an application for planning permission under the provisions of section 316 as amended by section 17 of this Act,
§ (2) Any appeal under this section shall be made by notice served within such time and manner as may be prescribed by a development order under section 59 of the principal Act.
§ (3) The time prescribed for such a notice must not be more than 28 days from the date of notification of decision.
§ (4) Where the Secretary of State is of the opinion that the grounds of an appeal are clearly without substance he may serve a notice on the party summarily dismissing the appeal." ").
§ The noble Lord said: This amendment in my name and that of my noble friend Lord Norrie inserts a new clause dealing with the right to appeal against planning decisions. It is grouped with Amendments Nos. 92 and 133A which deal with the same matter of rights of appeal but which go much wider than this modest new clause. I should remind the Committee that the only right of appeal at the moment is against refusal of planning permission. There is no right of appeal whatever against the grant of planning permission, however unreasonable or improper it may seem to be.
§ We have a modest proposal in this new clause in which there would be a right of appeal in only two limited circumstances. The first is where planning permission has been granted that does not accord with the development plan; which is, after all, the local planning authority's own affair. Therefore, if they 565 grant planning permission inconsistently with their own development plan they are really denying their own previous decision and departing from it.
§ The other circumstance in which we suggest that there should be a right of appeal to the Secretary of State is where local planning authorities give planning permission for the development of their own land or for the development that they intend to carry out themselves on somebody else's land. We suggest that in each of those circumstances there should be a safeguard against the local authority blowing hot and cold in the first case and pursuing too strongly their own interest in the second case.
I am glad to say that my noble friend Lord Norrie has some interesting views on this and he will no doubt put them before the Committee, but I shall just mention one or two of the subsections that come into this new clause. Subsection (3) provides that the appeal must be made within 28 days. Subsection (4) states:
Where the Secretary of State is of the opinion that the grounds of an appeal are clearly without substance he may
summarily dismiss the appeal. That is a safeguard against nutcases who have objected but who have not got a really substantial point to make. I should have mentioned that it is only those who made representations to the local authority before planning permission was granted who will have this right of appeal. I beg to move.
§ Lord Norrie
It is strange that however unfair a local planning authority's decision to grant planning permission may appear to be there is no right to challenge it even when it conflicts with a previously approved structure or local plan which has been through extensive public consultation. This amendment would resolve that problem by introducing a right to appeal against the granting of planning permission in carefully defined circumstances. Such rights already exist to appeal against a planning refusal. The Government have expressed concern that this extra right of appeal would introduce undue delays, but I fear that the main point may have been missed.
The amendment does not propose that all planning permissions should be subject to a right of appeal. It is likely to reduce the number of damaging applications submitted in the first place. What it does is to ensure that the decisions expressed in approved structure and local plans are actually followed through by local authorities. This is entirely consistent with the emphasis the Government are now placing on forward plans and the welcome comments in the recent White Paper about the importance of voluntary organisations in challenging government decisions at local and national level.
Planning decisions should be based on carefully defined policies that have been developed with widespread public consultation—in other words, the policies contained within structure and local plans. In my view a clear departure from these plans should be subject to a right of review and that is the purpose of the amendment. It also deals with the problems that result from local planning authorities being seen as 566 judge and jury on their own planning applications. Unless the Bill is strengthened in this direction, playing fields will continue to disappear and council land will continue to be used for development that would not otherwise be permitted.
The only safeguard under the current system is for the Secretary of State to call in the application, but I fear that this power is not used to its full potential. The House of Commons Environment Committee report entitled, Planning Appeals, Call-in and major public inquiries, in 1986 confirms this view. It said:We are strongly impressed by the strength of feeling and unanimity of opinion outside the Department that the Secretary of State uses his call-in powers far too sparingly … We believe that there is justifiable disquiet over the present system".The committee recommended that a wider approach be taken to call-ins but the Council for the Protection of Rural England advises me that it detects no real change. I hope that when my noble friend responds she can give a commitment that the Government will look favourably on the recommendations of the Common's report.
The introduction of a limited third party right of appeal would not create undue delays. The number of appeals would be a tiny fraction of the applications submitted and the necessary short delays it would create would have long-term benefits for the countryside and the wider environment. Even now where developers have an automatic right of appeal only 4 per cent. of applications end up as appeals. I fully recognise that we cannot open up a right of appeal to all third parties on all planning decisions.
The amendment contains provision for the Secretary of State to refuse to consider frivolous appeals and I hope that he will discourage these further by awarding punitive costs. The amendment carefully defines the circumstances in which an appeal can be lodged and encourages private developers and local authorities themselves to submit applications in line with approved development plans. If this amendment is not carried through, the environment and the public credibility of the planning system will be put in jeopardy. I support the amendment.
§ Lord McIntosh of Haringey
I rise to speak to Amendment No. 92 which is grouped with this amendment and Amendment No. 133A. This is a very much more modest amendment than that which has just been moved. Like Amendment No. 91, it applies only to those who have already made objections at the beginning and to the cases where the granting of permission is not in line with the local plan. It provides a further restriction in that it shall be open only to the council of a parish or community to intervene at this stage and appeal against the grant of permission. Villages throughout the country have expressed to us the view that it seems unfair that a developer can appeal against a measure which has been successfully opposed by the community, but when it is overriden by the district council there is no opportunity for appeal. It is felt that that is contrary to natural justice. I have a great deal of sympathy for that point of view.
I suggest to the Committee that there should be this very limited opening up of the right of appeal; and that this right would be used only in extreme cases. It 567 is worthy of consideration and support. I have difficulty with the proposition of the noble Lords, Lord Norrie and Lord Renton. One would like to give supremacy to the development plan if the amendment were restricted to permission which is in accord with the provisions of the development plan; in other words, if the word "and" appeared at the end of subsection (1) (a) rather than "or" we might consider the matter with more sympathy.
Against that we must consider the efficient conduct of the planning system and that somehow decisions must be taken and adhered to. It cannot always be a matter of appeal to the Secretary of State against either a grant or a refusal of planning permission; otherwise many decisions which are already too long in the making would almost never get taken, or be taken after a more extended delay. The noble Lord, Lord Norrie, has cast doubts on the efficacy of the right of the Secretary of State to call in applications which are contrary to the development plan. I have no doubt that he has a case. He quoted correctly from the report of the House of Commons Select Committee on that subject.
Surely the remedy is to ensure that the Secretary of State calls in applications which are contrary to the development plan. We should be looking for a remedy to amendments later on in today's business rather than to this amendment. The balance is very fine between trying to avoid unnecessary delay in planning procedures and trying to ensure that justice is done and seen to be done in every single case. On balance, we take the view that Amendment No. 91 is too wide and we shall be unable to support it.
§ Lord Campbell of Alloway
Perhaps I may briefly and in principle support the spirit of Amendment No. 91. It is of limited application. It affords the only effective safeguard to preserve the sanctity of the local community. Furthermore, it is all very well for the noble Lord, Lord McIntosh, to say that we have to see that the Secretary of State does this or that. There is no effective way in which one can see that the Secretary of State does anything as far as I can make out. One can produce absolute discretions, which is all that one can do. Having done that, one cannot do anything about them if the Secretary of State does not take action. That is an important point for the reasons given by my noble friends Lord Renton and Lord Norrie. Although,any party which has made representations",may be a little wide, perhaps there is some way in which one can exclude the nutcases. As a matter of principle this amendment must surely be right. I support the spirit of it. I hope that it will not be rejected out of hand.
§ 4.30 p.m.
§ Lord Brightman
I too support Amendment No. 91. I rise to speak for the sole reason that it may be said by the noble Baroness on behalf of the Government that judicial review already provides an adequate remedy where planning permission is wrongly granted. I do not know whether that will be said, but judicial review is not an adequate remedy in these 568 circumstances. It will only succeed where planning permission is unlawful or where it has been granted perversely. A proper approach would be that which is proposed in Amendments Nos. 91 or 92.
§ Lord Ross of Newport
Perhaps I may be allowed to speak to Amendment No. 133A as it is linked to these amendments. In Amendment No. 133A, which covers a slightly different point, I seek to introduce the concept of controversial development. The latest example of that is the case of the Dorset Heath 23 acres. I am not accusing the local authority in any way of going against the county structure plan or local plan. I have not inspected the plan, but I suspect that the 23 acres were properly scheduled for a residential development and although they were owned by the local authority in this case they gave themselves their own consent. Of course it is land that has higher value. It comes under the Berne Convention. It is land with which certainly the Nature Conservancy Council and many other bodies involved with conservation in this country have been very concerned for a number of years because it is one of the last remaining parts of heathland in Dorset and a lot of rare species occupy it.
I know that the Government may be slightly restricted in their response to this amendment and that the matter is still under consideration by the department, but the fact is that in this case judicial review was sought. In a decision by the High Court very recently that was refused. We consider that such action can now be brought only if the applicant shows bad faith by a council, corruption or an obvious error on the face of the record. I am certainly not suggesting that in the case of the particular local authority. Thus a conservation body or local action group has no redress against a decision it still feels is wrong; and since that decision was taken, the Berne Convention has said that they think this country is wrong.
It would be in the public interest for some decisions to be open to question. With the growing environmental concern, there is a need for a forum to allow organisations or individuals which are involved to secure a hearing for their objections. A local planning authority may, for political or financial reasons—and I suspect there are financial reasons in this case—grant permission for something which would otherwise be undesirable. This amendment would allow objectors a right of appeal against a limited class of controversial developments, which are all listed in the amendment.
New Clause 225A defines controversial developments. Section 65 developments are bad neighbour developments that have to be advertised, such as sewage works, waste disposal sites, mineral workings, and such like. The other types of development listed are self-explanatory. Other classes may be added in a development order. The aim here is to specify only developments that may have a major effect on the environment.
New Clause 225B would require authorities to specify reasons for a decision to grant permission for a controversial development. This would allow objectors to see why the permission had been granted, to see if the council had acted lawfully, and give them a basis for any appeal. Anyone who made 569 representations to the authority about the application for permission would have to be notified about the authority's decision and its reasons for it.
New Clause 225C would give any person who made representations about the application a right to appeal against the grant of permission. This allows those with a continuing interest to appeal. The Secretary of State could make orders as to costs if he felt that the appeal was frivolous.
I realise that this is taking us into a wider field, but I suggest it is an opportunity that the Government might take, or at least reasonably consider, rather than be landed with the situation in which they are now with the Dorset Heath case. I beg to move.
§ Lord Coleraine
I should like to join other noble Lords in expressing the hope that my noble friend will turn down neither of these amendments out of hand. It has long been a cri de coeur that the rights of third parties in planning appeals are not sufficiently looked after. This has always been the Government's line on these points. But there comes a time when such points must be rethought, so I hope that the Government will consider both amendments very carefully. The Law Society advises me that it considers that in principle both amendments should be considered very carefully indeed.
§ Lord Mottistone
I should like to support Amendment No. 92 in particular. As the President of the Isle of Wight Association of Parish and Town Councils, I notice that Amendment No. 92 does not make provision for town councils. I do not know whether that is automatic. I certainly like the feel of Amendment No. 92, and also of Amendment No. 91; and I join other noble Lords in hoping that my noble friend will pay proper regard to the arguments that have been advanced. Even if the Minister cannot accept any of the amendments at this stage, perhaps he might tell us that he will come back with something on Report.
Amendment No. 133A seems to be rather out of keeping with the other amendments, and I am surprised that it is grouped in this way. I am sorry to have to say that I am advised by the Confederation of British Industry in relation to Amendment No. 133A that the planning system is complicated enough without introducing a new class of development under the objectionable title of Controversial Developments and ascribing new duties in relation to it. In making any planning decision, the planning authority has to weigh up the advantages and disadvantages of the project and give those affected the opportunity to state their case. There are further opportunities for public comment when, for example, environmental assessment has to be carried out.
The proposed new Clause in Amendment No. 133A will undermine the authority's ability and willingness to take balanced decisions leading to even more initial refusals as well as to a great number of new appeals to the Secretary of State. Accordingly, the CBI believe that this would be a retrograde step. I therefore hope that the Government will resist the amendment.
§ Lord Wade of Chorlton
I hope that the Minister will resist all three amendments. I appreciate that I am the only one to speak in that regard, but perhaps it would be useful for us to consider that although we may be able to talk about matters rather subjectively in this Chamber, there are many people outside upon whom our decisions actually have an effect. Surely one of our reasons for bringing forward the Bill and for being involved in planning at all is to make things happen, not to stop them happening. In all these clauses I see another system that actually makes things less likely to happen. What has brought about this Bill and what makes the whole development of it work is the fact that we create some enthusiasm, some development, investment and support to make things happen.
Already in this Bill and in previous Bills connected with planning we have long procedures to ensure that every view is put into the planning procedure. The decisions are made by elected people. They have to put forward every opportunity for various bodies to make their decisions, and ultimately if the wrong decision is made the Minister can call it in, review the matter and ask for further opinions. We do not want further delays and possibly objections. There may not be many "nutters", as my noble friend suggested,—and perhaps we can eliminate some—but at what balance or at what level is a person a "nutter" or a "non-nutter"? Who decides where the balance lies? You may say, "This man is an idiot; but this fellow has some good ideas". However, that in itself is going to create more delay in reaching decisions.
I feel that we have already created the right balance of giving everybody the opportunity to bring objections when they want but at the same time of allowing something to happen. I hope that my noble friend the Minister will not accept any of these amendments.
§ Lord McIntosh of Haringey
Perhaps I may attempt to clarify a point made by the noble Lord, Lord Mottistone. My amendment was drafted by the National Association of Local Councils. That seeks to represent parish or community councils—a phrase used in the amendment—and I believe that that includes town councils. I hope that it does, as that was the intention.
§ The Lord Advocate (Lord Fraser of Carmyllie)
I shall not attempt to define where "nutters" end and "non-nutters" begin. I shall merely address myself to the three proposed new clauses which would for the first time provide three distinct, but by no means identical, areas in which a right of appeal for third parties against the grant of planning permission could be provided.
Amendment No. 133A would allow third party appeals against a new class of "controversial developments". It also imposes a new requirement on local planning authorities to notify anyone who had made representations about such a development proposal of their decision and the reasons for it.
I believe it is important to refer back to the 1947 Act which, as many Members of the Committee will 571 appreciate, substantially strengthened controls over the use and development of privately owned land. However, it also took away the rights of the individual to develop his property as he wished. It is for that reason that applicants were first given a right of appeal to the Secretary of State.
Third parties lost no rights as a result of the 1947 Act. However, when determining planning applications, local planning authorities must have regard to all material considerations, which can include views expressed by third parties in so far as they relate to land use planning matters. Authorities must also take account of development plans, which do of course reflect the views of residents revealed in consultation.
The present system gives both certainty and local choice. The Government want to see as many planning decisions as possible taken locally. We do not wish to extend further the powers of the Secretary of State and his planning inspectors who at present are responsible for the grant of just 4 per cent. of permissions.
There are also practical objections to extending the right to appeal. There were 88 per cent. more planning appeals last year than in 1984–85, and about 30,000 appeals are being received each year. Any extension of the right to appeal to third parties would add to the burdens on the system and would serve to delay—and, in some cases, to scupper—new development. It would clearly not be right to give any individual third party the right to hold up new development simply because he or she did not agree with it.
What appears to be immediately attractive in the proposed new clause, put forward by my noble friends Lord Renton and Lord Norrie, is that it seeks to restrict the right of appeal by third parties. In other words it would only be open to challenge where the permissions were,contrary to the development plan".The Government are not convinced that such a restriction would be successful. But determining whether a decision is contrary to the development plan would not always be an easy matter. I appreciate that the Secretary of State in terms of the new clause is to have a right to dismiss appeals that are, "clearly without substance". But in order to dismiss an appeal in such a way, the Secretary of State would undoubtedly have to study it very closely. Moreover, in many circumstances he would no doubt need to seek the views of the parties involved before so doing. That would seem to come perilously close to a full hearing of the appeal.
In any event, the development plan is not a set of hard and fast rules which must always be followed. That is not to underrate its importance. When we come to deal with Clause 22, Members of the Committee will hear from this Front Bench the importance which the Government attach to such plans. But, from time to time there are changes of circumstances which were not envisaged when the plan was first drawn up: sometimes the plan is out of date; and, sometimes, although the proposed development conflicts with the plan, the harm to the 572 plan's objectives is clearly outweighed by the benefits of the proposed development. In any of these circumstances it may be right for an authority to grant permission contrary to the plan's provisions. The plan must not be disregarded, of course, but taking the plan into account is not the same as a slavish following of it.
The arguments advanced against a right of appeal for third parties are, I believe, equally powerful when the development concerned is by a local authority or on local authority land. It is quite proper that the special arrangements for local authority development should be hedged about by safeguards. We shall deal with that aspect of the matter when we come to consider Clause 17. But, in the Government's view, third party appeal rights are not the right way to go about the matter.
Amendment No. 92 would allow parish and community councils to appeal against the grant of planning permission if they had commented on the original application, unless it is consistent with the development plan. As the amendment of the noble Lord, Lord McIntosh of Haringey, recognises, parish councils already have the right to have their views taken into account by the local planning authority. I do not believe that this right needs to be extended. Local planning authorities must remain responsible —and democratically accountable—for their own planning decisions.
It may be considered curious by some that what is proposed is that a dispute between elected local authorities should be passed to the Secretary of State, or even to an unelected planning inspector. As I indicated earlier, the Government promote local choice in planning policy wherever possible. We feel that the noble Lord's amendment runs directly counter to that principle. However, I certainly do not suggest that the remedy of judicial review is in any sense a substitute for giving a third party the right to appeal; it is undoubtedly a right which can only be exercised in the very limited circumstances which have already been outlined to the Committee.
I now turn to address the wider provisions of Amendment No. 133A. This would impose still further burdens on local planning authorities. They would be required to prepare a formal statement of their reasons for any grant of permission for a controversial development, and to notify all of those who made representations of their decision.
Most local planning authorities are already unacceptably slow in processing planning applications. The proposed new clause would add another large slice of work. Following the argument which has already been advanced, I fear that its effect would be to slow down further the process of development control. I believe that it would make the process more expensive. I am also of the view that it would be virtually impossible to produce a definitive list of controversial developments as the amendment seeks to do.
The definition of "controversial developments" which appears in the amendment could also give rise 573 to side effects which the noble Lord, Lord Ross, may not have contemplated and which he may even find undesirable. His definition includes the words,any development for which an environmental statement has been prepared".As many Members of the Committee will appreciate, the 1988 environmental assessment regulations require developers to submit environmental statements on their proposals if they fall within certain defined categories of development and are likely to have significant effects on the environment. However, many applicants who, strictly speaking, are not obliged to produce environmental statements under the regulations, do in fact do so voluntarily. Such statements are very valuable additions to the evidence which local planning authorities have before them when determining applications.
However, if the amendment were allowed to go forward, any applicant who voluntarily prepared such an environmental statement would put himself at risk of having to face an appeal initiated by a disgruntled third party, even though his proposal had been accepted by the local planning authority after full consideration of all the material factors, including the environmental statement which he has voluntarily supplied. In such circumstances, the flow of voluntary statements could dry up completely and a very useful source of information might be lost.
Reference has already been made to the 1986 report of the Environment Select Committee in another place in connection with the calling-in powers afforded to the Secretary of State. That matter will be dealt with at a later stage of the Bill's proceedings. However, I should say that it seems to be correct that the Secretary of State should only use such power to call in sparingly. However, the Select Committee concluded that it would not be appropriate for third parties to have the right to appeal against the grant of a planning permission. That conclusion follows from the need for local choice and for certainty and efficiency in the planning system.
I have taken some time to respond to the three proposed new clauses. Clearly there is a point of concern in the matter. However, during the debate we have identified the fact that the approaches adopted by each of the three proposed new clauses are markedly at variance with one another. Having given the Government's reasons for declining to accept any of the amendments, I hope that Members of the Committee will also reject them.
§ Lord Ross of Newport
Before the noble Lord replies perhaps I may say that I shall obviously study everything that the noble and learned Lord said about Amendment No. 133A, which I realise is itself probably controversial. I had hoped that it would strengthen the Government's resolve on this matter which I know is of concern to all parts of the Committee.
§ Lord Renton
I am sure that all Members of the Committee are grateful to my noble and learned friend for his full reply to this wide-ranging debate. I thank 574 all Members of the Committee who have taken part, especially those who supported Amendment No. 91. Everyone who spoke, except my noble friend Lord Wade of Chorlton, was in favour of one or other or some of the amendments. I find the conclusion reached by my noble friend Lord Wade strange. He said that at present we had balance in our planning system: He said, "Let us leave it alone". The trouble is, we do not have balance. The only right of appeal is the right of those who have applied for planning permission to appeal against refusal. Those objectors who may have a good case on environmental, social, or whatever grounds they may be, have no right of appeal whatever.
None of us has suggested that there should be a general, or very general, right of appeal. The noble Lord, Lord Ross of Newport, went into a fairly wide field. I must say that he was pretty daring.
I return to Amendment No. 91 and to my noble and learned friend's comments. The fact mentioned by my noble friend that there are already a vast number of appeals against planning refusal has, with great respect, nothing to do with the case. It may have a certain amount of administrative content, but where we come to the justice of the matter it has nothing to do with it at all. We must bear in mind that those who are refused development are often developers with a big vested interest. Of course they will appeal if they can—they are allowed to at present—because of what they have at stake. No, there is no balance whatever in the present system.
The question is to what extent the present system might be modified. I do not want to rehearse the arguments again, but I join with my noble friend Lord Mottistone in asking the Government to bear in mind what has been said in this case and to consider it all carefully.
On the substance of Amendment No. 91, I feel obliged to add just two points. It was my noble and learned friend who prompted me on the first point. He rightly pointed out that Clause 22 is intended—we see this from the heading—to streamline development plans. If we are to make development plans more real, more important and better administered, then surely it is all the more important that local planning authorities should pay even greater regard to them. They are more likely to pay regard to them if objectors have a right of appeal where there is a bad departure from the development plan.
The other point—my noble and learned friend ducked this point as did the noble Lord, Lord McIntosh, when commenting on Amendment No. 91; subsection (1) (b) of the new clause refers to it—is that where the local planning authority has a vested interest in the development and it is a matter of controversy locally—there have been objections—the local authority should not remain the judge in its own cause; there should be an opportunity for further thought by way of appeal to the Secretary of State. That seems to me to be a reasonable and strong argument.
I do not wish to divide the Committee on Amendment No. 91. I do not know what noble Lords intend to do with their amendments, but I hope that 575 we have not heard the last of this important matter and that the suggestion made by my noble friend Lord Mottistone commends itself to the Government. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 92 not moved.]
§ Clause 13 [Notice etc. of applications for planning permission]:
Lord Stanley of Alderley moved Amendment No. 93:
Page 22, line 13, leave out ("to 68") and insert (", 67 and 68").
§ The noble Lord said: I speak also to my Amendment No: 97. Section 66 of the Town and Country Planning Act 1990 contains a valuable long-standing provision preventing local planning authorities from entertaining applications for planning permission unless the applicant furnishes certificates stating that the owners and agricultural tenants of any land in question have received notice of the planning application.
§ Under Section 71 the local planning authority must take into account any representations on those applications from owners and tenants of agricultural holdings and must give notice to them of its decision.
§ Clause 13 seeks to remove those safeguards for owners and occupiers of agricultural land by allowing for such notifications to be required under development orders. No doubt my noble friend will argue that the Government have every intention of replicating the present safeguards contained in primary legislation in future development orders. However, those hard-won safeguards could then be abandoned at the stroke of the Minister's pen. That is clearly unacceptable and, accordingly, the amendments retain the relevant provisions of the 1990 Act.
§ It is worth noting that the Government appear to be treating England and Wales inconsistently compared with Scotland. My noble and learned friend Lord Fraser has tabled Amendment No. 106 to the Scottish planning law which retains a reference to the rights of owners and agricultural tenants to be notified of planning applications, although I have to say that it is not an absolute statutory guarantee. One day the Department of the Environment might just have a word with the Scottish Office.
§ Finally—this is the most important point—the right of tenants to be notified is of crucial importance to them as they can be served with an incontestable notice to quit if planning consent is granted. Yet they could miss the opportunity to object if they were unaware of the application. I can fully understand that the Department of the Environment might not have been aware of that agricultural facet to its clause. I believe that my noble friend Lord Astor is to reply to the amendment, I hope sympathetically. He will realise, of course, that the principle behind the amendment involves our old friend Henry VIII. I beg to move.
§ Lord Norrie
I speak to Amendment No. 94 which is included in this group. Before I explain the purpose of the amendment I should like to point out a drafting error for which I apologise. The word "copy" in the 576 third line should read "summary". Clearly a requirement to distribute a copy of every planning application, including diagrams and maps, would be too burdensome on a local authority. I hope that my noble friend will take that point into account when he replies.
It is probably not widely appreciated that in England and Wales there is no requirement to publicise the vast majority of planning applications. A house can be erected and an extension built or a building society can be converted into a fast food store without any member of the public, including neighbours, being told of the application. This amendment resolves that anomaly as it places a statutory requirement on the local authorities to notify neighbours of planning applications. It would ensure a bare minimum of public participation where local authorities are reluctant to advertise planning applications on a discretionary basis. It would not prevent local authorities advertising more widely if they so wished.
My noble friend informed me by letter that the Government believe that local planning authorities are best placed to decide how the great majority of planning applications should be publicised. However, the compulsory notification of neighbours by developers is a formal requirement in Scotland. I do not believe that we should assume that the Scottish authorities are less likely to exercise their discretion responsibly.
It is clear that the current discretionary arrangements do not work well enough. Disputes over neighbourhood notification are perhaps the most common cause of complaint about the planning system. The number of complaints on planning received by the ombudsman has more than doubled in the past three years. No less than 30 per cent. of these complaints are on the specific issue of neighbourhood notifications. Noble Lords will not be surprised to learn that I am aware of the local ombudsman's support for efforts to make neighbourhood notification a legal requirement.
Certain developments require public advertisement, of which the so-called bad neighbour developments and those which depart from an approved development plan are the most common. There are problems even in that respect. First, there is a worrying trend towards advertising in obscure local free newspapers which are not available for public sale and have a notoriously unreliable distribution. Secondly, the choice as to whether a development is a departure from the plan is astonishingly made by the district council even where the county council's structure plan is being breached. There are too many occasions where departures from development plans are not advertised as they should be.
Thirdly, some changes are automatically permitted without needing a planning application. This can result in bad neighbour development being established without any publicity at all, or even without the local authority being aware of it.
577 The system for publicising planning is not as it should be. A basic system of neighbour notification is long overdue in England and Wales and would be achieved by this amendment. I beg to move.
§ 5 p.m.
§ Baroness David
I support the amendment on publicity for planning applications tabled by the noble Lord, Lord Norrie. The Nature Conservancy Council also strongly supports it. The Council says in its notes about the Bill that:The NCC supports the proposal for wider notification of planning applications. Whilst the NCC is already consulted over any applications for development on an SSSI, there are other areas of nature conservation interest which, while they do not reach SSSI standard, are nonetheless of great local importance. They are often owned or managed by local wildlife groups and those groups should automatically be consulted over applications in those areas … Secondly, a development which takes place adjacent to or in some instances some distance from an SSSI might have an effect on that site. The proposed alterations to the principal Act and consequent order should take account of this fact".I believe that the amendment moved by the noble Lord, Lord Norrie, deals with that.
I now speak to Amendment No. 95, in the name of my noble friend Lord McIntosh, which requires that neighbour notification, if made mandatory under Clause 13, is defined. I should like to make clear that this is a probing amendment. It is designed to establish the reasons for Clause 13 and the purpose to which it will be put. The amendment attempts to ensure that, should the Secretary of State make an order requiring a local authority or developer to publicise the fact that an application for planning permission has been made, he should clearly specify to whom notice should be given. The persons to whom notice should be given should be established after consultation with the local planning authority.
There is need for a clear definition of "neighbour". This term could relate narrowly to the property next door or, in the case of a road, it could apply to all the properties along the line of the road. Prior consultation with the local planning authority is required in order to ensure that the Secretary of State accurately identifies the properties affected by the development before notification.
I speak also to Amendment No. 98 which has been put forward by the National Association of Local Councils. It proposes a new clause headed:Notification of applications to adjoining occupiers".Neighbours of a site which is being developed, even where the works are quite small, may be the ones most seriously affected. Yet no one is under any duty to tell them about proposals for properties which might dominate their garden, spoil their outlook or inhibit the use of their premises.
The amendment puts an obligation on the developer to notify every adjoining occupier and allows the planning authority to notify where it is not happening, with the developer's reasons for failure to notify. The amendment adapts the legal certificate system already in use to notify those with legal interests in the land to be developed.
I first deal briefly with the one government amendment in this group, Amendment No. 106. It extends to Scotland a similar regime to that which Clause 13 applies to England and Wales. It provides an enabling power to prescribe by order the publicity and arrangements for notifying owners and agricultural tenants of planning applications.
The effect of Amendments Nos. 93 and 97, tabled by my noble friend Lord Stanley of Alderley, would be to retain in the 1990 Act the detailed provisions for notifying planning applications to owners and agricultural tenants which Clause 13 proposes should be prescribed by order. The amendments would reduce the scope for clarifying and streamlining this aspect of planning application procedure.
We are not simply dealing here with bureaucratic tidiness but what I believe to be a helpful move towards making the development control system easier for applicants to understand. The Department of the Environment undertook public consultation on the principle of this streamlining in a 1989 consultation paper Efficient Planning. The consultation paper clearly indicated the Government's view that the present arrangements are onerous for users of the system, who are required to find their way through two documents to understand the effect and requirements of the notification provisions. The responses to the consultation paper indicated overwhelming support for the Government's view.
I fully appreciate the misgivings expressed by my noble friend and I agree that to have detailed provisions in primary legislation represents the maximum safeguard against any potential future change by whim. Nevertheless, if all such misgivings were to be the paramount consideration in shaping planning legislation, the planning Act would be vastly more complex and lengthy than it is today. It is salutary to consider that the 1947 Act comprised 120 sections and 11 schedules, and the 1990 Act contains 337 sections and 17 schedules.
It is not the Government's intention to abolish the requirement to notify owners of land or agricultural tenants of relevant planning applications. Indeed, we have said that owners and agricultural tenants should not only be informed of planning applications but should at the same time be advised of their rights. The Department of the Environment is at present drafting amendments to the general development order which will give effect to this commitment. Our proposals will not provide tenant farmers with protection from notices to quit when planning permission for non-agricultural development is granted; nor do they enjoy such protection now.
I assure the Committee that in introducing Clause 13 the Government have no intention of disadvantaging tenant farmers. The inclusion of provisions in subordinate legislation does not mean that proposed amendments are lost from view. It is the Government's policy to undertake public consultation on substantive changes to the general development order and to take full and careful account of the course laid before Parliament.
I now wish to deal with the concern expressed that we should not use secondary legislation as a means of 579 avoiding parliamentary scrutiny of government proposals. However, at the same time we must improve the efficiency of the planning system. We consulted widely and found overwhelming agreement on the need to streamline the notification procedure. At present notification procedures are subject to a muddling combination of primary and secondary legislation. Our proposal represents an essential first step towards ending that muddle. It would always be open to Members of the Committee to pray against our detailed proposals for implementation through the general development order if they thought we had made an error. I hope that the noble Lord will agree to withdraw his amendment.
The aim of Amendments Nos. 94, 95 and 98 is to require the owners and/or occupiers of land neighbouring or abutting a site which is the subject of an application for planning permission to receive individual notification of that application. Amendment No. 94 tabled by my noble friends Lord Norrie and Lord Renton would place the responsibility for such notification on the local planning authority. The purpose of Amendments Nos. 95 and 98 tabled by the noble Lord, Lord McIntosh, would be to require such notification to be undertaken by the applicant, who would need to certify to the local planning authority that he had done so. Although Clause 13 would enable these requirements to be made by a development order, it is a step which the Government consider undesirable and unnecessary.
The amendment tabled by my noble friends Lord Norrie and Lord Renton would place a considerable additional administrative burden on local planning authorities, many of which are already falling well short of meeting the Government's target of deciding 80 per cent. of applications within eight weeks. The task of determining the extent of "neighbouring land" and of identifying all those with a notifiable interest in it for each of the 600,000 or so planning applications submitted each year in England and Wales would be daunting. Although the burdens on local authorities would be reduced if applicants were required to notify occupiers of abutting land, as proposed by the noble Lord, Lord McIntosh, local authorities would still have the added task of checking that the applicants' certification was in order.
To put the principal burden for notification on the applicant would be unwelcome to the business applicant and to the householder proposing to erect an extension. The Government have consistently sought to make planning procedures more streamlined and user friendly for applicants, many of whom represent small businesses and who have been daunted by a range of statutory requirements.
I believe that local planning authorities are best placed to decide how the great majority of planning applications should be publicised. Local authorities are free to undertake the notification of neighbours where they feel that would be appropriate. Furthermore, details of all planning applications, including all the submitted plans, must he placed by the local planning authority on the planning register, which is available for public inspection. No publicity arrangements for planning applications can be 580 foolproof. But generally speaking, I believe the existing arrangements work well and provide a fair and appropriate balance between the need to safeguard the public interest and the need to keep bureaucracy and delay in the planning process to a minimum. In view of this I hope the noble Lords will agree not to pursue these amendments.
§ 5.15 p.m.
§ Baroness David
I am not sure whether the Minister answered my point as regards a clear definition of "neighbour". If he did not, will he do so?
I said that the task of determining the extent of neighbouring land and of identifying all those with a notifiable interest in it for the many applications that are submitted would be daunting.
§ Lord Stanley of Alderley
My noble friend has said that my amendment is too complicated. If officials were asked their opinion on such a matter, they would always vote for less work and more pay. I would do the same myself if I had the chance. My noble friend gave me no assurance whatsoever regarding the ability of some future Secretary of State to change the rules by statutory instrument if he so wished. I did not like my noble friend's reply at all. I shall write to him on the subject and I hope he will change his mind. If he does not, I may well have to return to the matter on Report.
§ Baroness David
I must repeat that the Minister did not give me a satisfactory answer. I shall read all that has been said and consider whether it is worth trying to get a better explanation on a later occasion.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 94 and 95 not moved.]
Baroness Hollis of Heigham moved Amendment No. 96:
Page 23, line 3, leave out ("3") and insert ("5").
§ The noble Baroness said: This is a modest amendment. At present applicants seeking planning permission are required to submit honest information when filling in the statutory certificates on interest and property under Section 27 of the new codified legislation. Alas, it is not unknown for applicants to be less than truthful, especially as the potential gains in terms of planning permission can be so large. We believe that raising the level of fines for the giving of false information would help to police untruthful applications. This amendment seeks to raise the fines from level 3 to level 5; that is, to £2,000.
§ As the Bill stands, the fines available to the courts are lower than the fines currently imposed for false information under Section 330 of the Town and Country Planning Act 1990 which permits imprisonment for up to two years or a statutory maximum fine at level 5 for virtually identical offences. This amendment seeks to bring this offence into line with Section 330 of the Town and Country Planning Act. We believe it is useful, fair and consistent. I hope it is also transparently virtuous. I beg to move.581
The effect of Amendment No. 96 would be to increase the maximum penalty for a person guilty of an offence under the proposed new Section 65(6) of the 1990 Act from a fine not exceeding level 3 on the standard scale, which is at present £400, to a fine not exceeding level 5, which is at present £2,000. The offence in question is the issuing by an applicant for planning permission of a certificate to the local planning authority in respect of the publicity or notification requirements for planning applications which either deliberately or recklessly contains a false or misleading statement.
The Committee may be aware that the Criminal Justice Bill, which is being considered in another place, proposes a general up-rating of the standard scale. Increases to £1,000 and £5,000 respectively are proposed for levels 3 and 5. The effect of the amendment tabled by the noble Lord, Lord McIntosh, could therefore increase the maximum penalty for an offence under Section 65(6) to £5,000. I am inclined to think that the proposed up-rated level 3 fine of £1,000 represents an appropriate maximum penalty for the offence in question. However, I recognise that Clause 1 of this Bill proposes that a person on whom a planning contravention notice has been served and who is guilty of making a false or misleading statement purporting to comply with a requirement of such a notice is liable to a fine not exceeding level 5. I am therefore prepared to consider this matter further.
§ Baroness Hollis of Heigham
I thank the Minister for that response. In the light of that assurance, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 97 not moved.]
§ Clause 13 agreed to.
§ [Amendment No. 98 not moved.]
§ Clause 14 [Power of local planning authority to decline to determine applications]:
Baroness Hollis of Heigham moved Amendment No. 99:
Page 23, leave out lines 29 to 46 and insert:
(2) For the purposes of this section an application for planning permission for the development of any land shall only be taken to be similar to a later application for development if the development and the land to which the applications relate are in the opinion of the local planning authority without material significant amendment.").
§ The noble Baroness said: This amendment deals with repetitive applications. Repetitive applications along with twin tracking, which is the subject of the next cluster of amendments, add significantly to the strain on the planning system and, as a result, build in delay for other and first time applicants. Professional planning staff are hard to get and, given charge capping, they are not always easy to afford. Local authorities are trying to deal with an increased number of applications with, for the most part, 582 reduced staff. Repetitive applications and twin tracking help to account for the fact that only 50 per cent. of applications are determined within eight weeks and not the 80 per cent. of applications that is the desired figure. Amendment No. 99 has the support of the Association of District Councils, the National Housing and Town Planning Council and the Council for the Protection of Rural England. It proposes that similar applications may not be resubmitted within five years rather than the two years specified in the Bill. That is a period which is broadly coterminous with the commonsense life of a local plan.
§ We also suggest in the amendment that applications should not be resubmitted not only if the Secretary of State has refused the application on appeal but also if the local authority has refused it and the developer has not challenged that refusal by going to appeal, presumably because the developer does not expect success.
§ We all know of garages, golf clubs and garden centres having two or three attempts at obtaining planning permission without necessarily going through to appeal. The amendment would signal clearly to developers that they will not be able to wear down a local authority by persistent, repetitive applications which they are not willing to take to appeal during the life of a local plan. It will stop them clogging up the system and therefore, and importantly, allow local authorities to put their scarce resources into dealing speedily with first-time applications. I commend the amendment to the Committee.
§ The Deputy Chairman of Committees (Lord Alport)
If the amendment is agreed to I shall not be able to call Amendments Nos. 100 to 103.
§ Lord Ross of Newport
Amendments Nos. 100 and 101 appear in my name and are almost identical to those so ably moved from the Labour Front Bench a moment ago. As I indicated in my Second Reading speech I greatly welcome the Government's decision to install a two-year ban. However, extending that to five years would substantially improve the effectiveness of the planning process.
The Government's proposals, however, would not resolve the problem of repetitive planning applications which are not taken to appeal but which may eventually wear down the authority to the point where planning permission is granted. Those of us who have taken an interest in planning matters over the years know that unfortunately that happens. I therefore support the amendment to allow local planning authorities to decline to determine a planning application which they have refused within the previous five years rather than limiting that provision to applications turned down on appeal within the previous two years.
A vital measure to complement both the amendment and the government proposals is the power to refuse to determine repetitive planning appeals. Otherwise developers could simply appeal against decisions. The cost mechanism, if properly used, might be a deterrent but the option of leaving an appeal on the table should be open. I should like clarification from the Government as to how an 583 appeal to the Secretary of State on the basis of the application not being determined by the local authority would be dealt with. I believe that a paper has just been issued by the Government on that very subject and the matter of cost. It may be that that is what the Government seek to do, and I await further information in reply.
§ Lord Mottistone
I should like to speak to Amendments Nos. 102A and 106A which are grouped with the amendments. Amendment No. 102A relates to Clause 14 and applies to England, and Amendment No. 106A relates to Clause 37 and applies to Scotland, but both amendments are exactly the same. I have been advised by the CBI on the amendments.
The purpose of the amendments is to introduce some discipline into the way in which a local planning authority deals with an application which superficially might appear to be a repeat of an earlier one but in respect of which circumstances have significantly changed. Business does not object to the principle that identical applications in identical circumstances should be refused. It does object to a planning authority having the unbridled power to refuse to entertain an application without any right of appeal on the grounds that it was the same or substantially the same as previously. The development and the land can remain the same but the planning policy for the area may have changed.
The applicant may have different views from the authority as to what "substantially the same" means. Those differences need not be tested under the clause as currently drafted. My amendments are designed to put that right by putting the planning authority under a specific legal obligation to make sure that circumstances have not changed before refusing to entertain the application and by introducing a right of appeal in the case of dispute.
The amendments are intended to introduce some discipline. In practical terms the effect would be to make a planning authority think twice before refusing an application. The number of occasions on which such a provision would apply would be very limited, but it would make the planning authority think about the matter. In due course I may beg to move the amendments.
§ The Earl of Lytton
It will be seen from the Marshalled List that my name is down as opposing the Motion that Clause 14 should stand part of the Bill. It may be for the convenience of the Committee if I say my piece at this juncture rather than later.
Before doing so I should like to pay tribute to the Minister and the members of her department who spent considerable time with me and a delegation which accompanied me discussing various aspects of the Bill. I appreciate that very much.
Repetitive applications can be seen as a significant log jam but the matter boils down to some extent to the quality of the planning policy and decision-making process of the local planning authority concerned. Therefore, while I am sympathetic in broad principle I believe that the problem arises from the planning system as it is currently conducted. I am concerned 584 that as yet I have no evidence regarding the statistical frequency of the problem. I have been unable to unearth any.
As the Bill stands the clause would apply to only a very limited category of repetitive applications following the dismissal of an appeal by the Secretary of State. Other amendments in the grouping would extend the categories which would fall into that exclusion provision so that it would relate to the refusal of a previous application by the local planning authority. I agree with what has already been said. I am reluctant to see a provision go forward which would allow the planning authority to be judge and jury in its own cause.
The Committee's attention has been drawn to the difficulty of interpretation. I have very grave doubts as to whetherthe same or substantially the samecan be interpreted accurately on all occasions. It would be a legal minefield. In any event, in leaving it to the local planning authority to determine what is in accordance with the wordsthe same or substantially the sameor other wording such as "similar application" or "significant change" which also appear on the face of the Bill there is a real risk that it will be interpreted in favour of the local planning authority. I do not believe that that is how the Committee intends the matter should be dealt with hereafter.
I am also concerned at the lack of clarity regarding the wording of any rights of appeal. The noble Lord, Lord Mottistone, has suggested that there should be a right of appeal. I agree, if it is intended that the clause should stand part of the Bill, in that it is a useful safeguard. However, that creates a further level of difficulty in the administration of an already complicated system, and on administrative grounds I have grave doubts about it.
I do not know the background to Clause 14 but I suspect that it is intended to placate vociferous community groups who are worried and frustrated about what they see as repetitive planning applications. But if the purpose of the exercise is to placate them, I think that they will be very frustrated. When looking at what on its face is a repetitive planning application, a local planning authority is likely to accept the application either because it does not strictly fall within the definitions and the authority is unsure of its position or because the authority wants to play safe and avoid fuss and bother. From the point of view of the community which may be disaffected by the decision, as it sees it, the proposal may be exactly on all fours with the one that it thought it had just defeated and seen off. There is a problem about implementing this measure.
It is only fair to touch on a general point that has surfaced at various times throughout the course of the Bill so far. I have written to the noble Baroness about this matter. I do not want to dwell on it in detail but it centres around the broader activities of local planning authorities in their planning and other functions. We all know of situations in which local planning authorities have used the system to their advantage—that may be the easiest way to put it—in 585 a manner that is seen by those who may be closely affected as overtly unfair. The authorities may see themselves as guardians of the public good in this matter but there is an undeniable conflict of interest between the planning activities of the local planning authority and the role of that same authority as landowner and developer in its own right. A number of significant abuses have taken place about which I do not want to go into detail. I have written to the noble Baroness and hope to receive her reply.
I am concerned about this issue. It is a matter that attracts increasing public attention and anxiety. I feel that it ought to be addressed at some stage. I am not certain whether the answer is in some way to have safeguards such as additional rights of appeal. I should be hesitant about clogging up the system in that way. Perhaps there should be some decoupling of the planning function from the other functions of local planning authorities. Obviously, all these matters have resource implications, so I cannot say. But I am concerned to ensure that the system is operated fairly and equitably. I feel that anything that can be done to achieve that goal is worthy of consideration. I do not consider that Clause 14 takes that aim any further. That is why my name is on the Marshalled List to oppose the Motion that Clause 14 stand part of the Bill.
§ 5.30 p.m.
§ Baroness Blatch
Amendments Nos. 99 to 101 would make three changes to the proposed arrangements. First, Amendments Nos. 99 and 101 would allow a local planning authority to decline to determine a second application even if the first refused application had not been taken to the Secretary of State on appeal or been the subject of a call-in. However, the requirement in Clause 14 that the new power can operate only where a similar proposal has already been rejected by the Secretary of State is an intentional and necessary safeguard.
The planning system already restricts the rights of owners to develop their properties as they would wish. The introduction of the proposal in Clause 14 to remove in certain defined circumstances the right of developers to have certain of their planning applications determined is not a step that we have taken lightly. In the Government's view such a restriction on developers' rights could be justified only where the development is clearly unacceptable and further consideration of the proposal would simply be a waste of everyone's time. It seems to us that the rejection of a proposal by the Secretary of State would present sufficient and reasonable grounds to define a proposal as unacceptable for these purposes and to justify use of the proposed new power.
Secondly, both Amendments Nos. 99 and 100 would extend the period during which repetitive applications were barred from two to five years. The Government proposed a period of two years because it offers a reasonable balance between the need to prevent the uncertainty associated with repetitive applications and the importance of minimising the infringement of people's rights to develop their land. 586 I suspect that if the period were extended as the noble Lords propose, the provision which disbars use of the power if there has been a material change in circumstances would come into play more frequently. Thirdly, Amendment No. 99 changes the wording of the requirement that there should be no significant change in circumstances and the definition of "similar" applications.
The text of the noble Lord's revised version of subsection (1)(b) does not make it clear in what matters there must have been no material change. However, I think that noble Lords from the Government and the Opposition have similar intentions on this point, and I suggest that it is a matter of choosing the best wording. I believe that the concept as set out in Clause 14 of a significant change in considerations material to the application is more appropriate here. The revised wording of subsection (2) similarly conceals no difference of principle between us. I think that there is little to choose between the two formulations, although we should perhaps trust to parliamentary counsel's form of words.
In summary, the Government take the view that the noble Lords' amendments have some technical shortcomings. But, more importantly, they would introduce an unacceptable change in the delicate balance between the rights of developers, local planning authorities and residents. I therefore hope that the noble Lords will agree not to press Amendments Nos. 99 to 101.
Amendments Nos. 102A and 106A are intended to give applicants the right of appeal to the Secretary of State against a local authority's refusal under Clause 14 to consider an application. Amendment No. 103A, which we are to discuss shortly, will do much the same thing. However, the Committee will appreciate that such a right would negate much of the purpose of the provision, which is to provide certainty for a period after a decision is made. The new power is intended to prevent developers from wearing down the resistance of local planning authorities and communities. We believe that allowing a right of appeal would undermine that objective.
Any abuse of that power will be open to review by the courts. In particular they will ensure that the safeguards built into the clause are respected. The applications must be "similar" (which the clause defines as "the same or substantially the same"); the previous application must also have been refused by the Secretary of State and not just by the planning authority; and the power cannot be used if there has been any significant change in a consideration material to the application.
Any appeal against the decision under the clause would turn on whether the power had been exercised properly and not on planning merit. Such questions are properly decided by the courts and not by my right honourable friend.
We do not agree that widespread litigation is likely. Authorities have a generally good record of staying within the boundaries of planning law. The new provision is clearly drafted and we should expect very few difficulties to arise.
587 The noble Earl, Lord Lytton, raised a number of points. First, he mentioned the statistical frequency of repetitive applications. We do not have systematic figures to indicate how many repetitive planning applications are put forward each year. However, Ministers receive a significant flow of correspondence from individual members of the public, Members of Parliament and local amenity groups who are completely worn down by developers putting in repeated proposals for the same site. Self-evidently such repeated applications waste the time of all concerned. We are well seized of the point.
The noble Lord, Lord Ross, was concerned about repetitive appeals. It is difficult to see in what circumstances appeals would be repetitive if, following the enactment of Clause 14 of the Bill, developers are precluded from submitting repetitive applications.
The noble Earl, Lord Lytton, referred to the conflict between the planning activities of the local authority and its role as landowner. We shall discuss that issue when we come to Clause 17.
Most Members of the Committee agreed with the principle of the original clause but I have noted all the comments that have been made and the objections raised. It is true that we are concerned that some developers use repetitive planning applications. I have said that that can be a serious wearing-down process. I repeat just once more, because it is important, that safeguards are built into the clause. The applications must be "similar", which the clause defines as,the same or substantially the same",the previous application must have been refused by the Secretary of State and not just by the local planning authority and the power cannot be used if there has been any significant change in a consideration material to the application. That change can be on the part of the local planning authority: a change of circumstance in the way in which the planning application was considered or, indeed, something material specific to the planning application itself. I have listened carefully to all the arguments. However, I hope that with that explanation the amendments will not be pressed.
§ Lord Mottistone
With regard to my Amendments Nos. 102 and 106A I shall read carefully what my noble friend has said and consider whether her comments meet the requirements. I reserve the right to come back on Report if I am not happy.
§ Lord Ross of Newport
In moving the amendment I was trying to point out that a second planning application might be sent to the local authority, which may refuse to deal with it and let it lie on the table. The application becomes out of time and then the applicant appeals to the Secretary of State because planning consent was not given in time. Will the Minister take the appeal or not? That situation is not covered in the Bill.
§ Baroness Blatch
I am not certain of the specific circumstances. The whole thrust and purport of the Bill are to avoid the kind of delay that leaves applicants sitting around feeling absolutely frustrated and with no right of appeal.
§ Baroness Hollis of Heigham
As regards subsection (2) of Amendment No. 99 I defer to the opinion of the Minister's parliamentary draftsmen and do not wish to challenge her. As regards paragraph (a), however, the period of two years as opposed to five years is a matter of judgment. We are concerned that, for example, the neighbours to a golf course are never off duty because they are fighting continuous applications for housing development on land. Whether two years is sufficient or whether five years would be a fairer time limit is obviously a matter of judgment. I hope that the Minister is right in saying that two years gives the planning system a chance to put its resources where the priorities lie and gives those who live close to land which is the subject of unsatisfactory applications a breathing space between repeated proposals. But I doubt it and I may wish to return to the matter at a later stage. However, I now beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 100 and 101 not moved.]
§ 5.45 p.m.
Baroness Hollis of Heigham moved Amendment No. 102:
Page 23, line 40, at end insert:
("(1A) A local planning authority may decline to determine an application for planning permission for the development of any land if at the time of the application, or within eight weeks thereafter, the applicant submits a similar application on appeal to the Secretary of State, and for the purposes of this subsection a similar application shall be taken to mean an application falling within subsection (2) below.").
§ The noble Baroness said: I shall speak also to Amendment No. 103 which is consequential. The Committee will be aware that twin tracking occurs when a developer submits two identical planning applications to the local authority. While negotiating with the local authority in respect of one he submits the other to appeal on the grounds of non-determination after eight weeks. These amendments will check that practice.
§ I urge the Committee to consider the problem, because it is most serious. The number of appeals has risen by 30 per cent. per year. Nearly 80 per cent. of enforcement notices go to appeal, yet 40 per cent. are subsequently withdrawn. In the meantime the same members of staff who should be determining the application within the eight-week period that we should like to see are simultaneously trying to fight off the appeal. As the Minister has rightly said in respect of Clause 1 of the Bill, local authorities are not so well endowed with professional staff that they can afford to be overstretched in this way. No one wishes to limit the right to appeal. On the contrary, noble Lords on this side of the Chamber believe that it is an important protection for applicants. However, we wish appeals to follow and not to parallel an application.
§ Perhaps I may give an example from my own local authority. During the past year in the outer area of Norwich—that is outside the historical core in a smaller, less contentious area—there were eight duplicate applications. Of those, seven were refused, five went to appeal and four were dismissed. For the most part the practice is about manipulation. For 589 many years twin tracking has been a process common in large shopping developments. It is done in the somewhat cynical belief that the planning process is a formality with which developers can dispense. The process is increasingly used in small bids such as for a service station on a bypass.
§ Following her earlier and helpful letter I suggest that the Minister might respond in one of three ways. She might say that in Clause 24 the Government are taking a firm line to discourage the late withdrawal of appeals. Presumably they are withdrawn because the applicant realises that he has little chance of success. That is helpful but, although a late withdrawal may save the cost of the inquiry, it will not save the cost of the work of the local authority in fighting off a potential appeal which does not come to realisation. I am led to believe that Bedfordshire County Council spent £100,000 of poll tax payers' money preparing to fight a major development application on the twin-tracking principle even though the appeal was subsequently withdrawn. Not only did it cost £100,000 but it caused weeks of delay to other applicants in the planning system.
§ Secondly, the Minister might argue that Clause 15 allows the Secretary of State to dismiss an appeal where the ultimate delay is unreasonable. That clause is also welcome but the circumstance is not our concern. Our concern is where the appellant fails to delay but instead twin tracks.
§ Thirdly, the Minister may wish to push her case hard by rightly arguing that the decision should have been made within the eight weeks and in that case there could be no ground for twin tracking. Clearly, the eight-week period is desirable but I argue that it is obtainable only where the staff resources match the planning workload, on the one hand, and where the cases are straightforward or in conformity with the local plan, on the other hand.
§ Let us consider a large and complex retailing proposal of perhaps 100,000 square feet. It will have major traffic implications requiring negotiation with the adjacent local authorities, with the police and, in the case of a district council, with the county council's highways authority. It will have major implications for shopping patterns, rightly requiring consultation with high street traders and the chamber of commerce. It is likely to be a noisy and late-night business. Local residents will require not only consultations but exhibitions and displays. It will have streetscape implications and the local architects' conservation panel will expect to be consulted. It will have employment implications which may need reference to other committees of the council.
§ It may also be entirely proper to consider planning gain; for instance, a subway under a street to link it to the main shopping centre, additional car parking above and beyond operational car parking, additional landscaping and possibly a crèche for toddlers while mothers shop. All that must also be negotiated and considered by all the committees of the council. For such consultation to be effective one is likely to need pamphlets, graphics, exhibitions and questionnaires. 590 We are talking about large developments which might last for 80 years and which will have considerable economic impact on the locality. Does the Minister really believe that in respect of a sensitive, complex and large development all that can be done within eight weeks? If it cannot, there remains the invitation to the developer to twin track.
§ Sensitive, complex and large developments such as major retailing outlets which need the longer time are precisely those which have the financial muscle and resources to submit a twin track application. Effectively they are using that muscle to push their way to the head of the local authority planning queue. They wave the sword of Damocles and appeal over the heads of the local authority—and who pays? That muscle deforms the planning system to the disbenefit of the smaller and less powerful applicant who cannot command such clout.
§ I suggest that an orderly planning system is faster, and that is what everyone wants. Twin tracking distorts it. I emphasise that overwork in the planning process brings delay; delay brings twin tracking; and twin tracking creates overwork. The losers are the small, first-time applicants to whom, if the Minister is minded to support the amendment, we can give proper priority. In a proper and orderly way we can protect the interests of first-time applicants as we all would wish. I beg to move.
§ Lord Stanley of Alderley
The noble Baroness is very persuasive. I am not sure that she has entirely convinced me. My worry is that she is looking after the planning authorities rather than the speed with which an application goes through. However, I shall listen to what my noble friend says. I am inclined to ask her to resist the amendment.
§ Baroness Blatch
It goes without saying that we all wish to see an end to the worst abuses of this practice. The Bill must be seen as a package. It aims to strike a balance between constraints which address the abuses and flexibility to allow the applications to be dealt with fairly and speedily.
These amendments seek to outlaw twin tracking. I say that because there is a flaw in the drafting of the amendments. They refer to the appeal being submitted within eight weeks from the date of submission of the first application. In cases where the two applications are submitted simultaneously it would be more than eight weeks before the submission of the appeal. The amendments as drafted would therefore fail in their purpose. I shall nonetheless address the remainder of my remarks to what I believe to be the intention behind the amendment.
The Government are familiar with the arguments against twin tracking. The practice can create confusion for local residents, as the noble Baroness so eloquently said. It can also give rise to some wasted effort in the Planning Inspectorate, although this should be reduced if Clause 15, which allows the Secretary of State to dismiss an appeal if the appellant delays unduly, is enacted. It is also true that it makes life complicated for local authorities' planning 591 departments which must prepare for an appeal with one hand while continuing to consider the application with the other.
However, we must bear in mind that the planning system already involves significant constraints on the individual's freedom to develop his property as he would wish. We should therefore need to consider very carefully the introduction of any further restraint which impinges on the important freedom to make a planning application. It is a question of balance. My noble friend was considering whether one should be more concerned about the planning authority than the rights of an applicant. On balance, the Government believe that Clause 14 as it stands can be justified in this way because it seeks to prevent the abuse of that freedom. It gives local planning authorities the power, for a period, to decline to determine an application which is the same, or substantially the same, as one that has recently been refused by the Secretary of State. In other words, it is designed to eliminate a practice that is clearly a waste of everyone's time and effort. Amendments Nos. 102 and 103 cannot be justified in this way. They seek to prevent behaviour which, although perhaps inconvenient to others, does not represent a blatant abuse of the system.
As in many areas of the planning system, it is a matter of achieving a sensible balance. The Government consider that it is important that applicants should continue to have the remedy of an appeal against non-determination to ensure that their proposal can be decided within a reasonable time. Twin tracking is a useful side-effect of that remedy because it allows some choice to remain at the local level even after the submission of an appeal. It also provides some discipline on local authorities to consider applications speedily. On the other hand, twin tracking can give rise to the abortive use of scarce resources. Again, that was a point well made by the noble Baroness. On balance, we should like to see the use of this practice decline, but it would be wrong to achieve this by undermining important freedoms.
We are in danger of dealing here with the symptoms and not the cause. The most effective remedy for the difficulties caused by twin tracking is in the hands of the authorities themselves. An authority which determines applications expeditiously should not find itself under any pressure from twin tracking. It will determine the simpler applications within the eight week period, and the more complex ones long before any appeal against non-determination can be decided.
The noble Baroness referred to the fact that eight weeks may be too short for major applications involving very time-consuming consultations. We fully accept that eight weeks may be too short a period for some applications. The Government have set local authorities a target of dealing with 80 per cent. of applications in eight weeks. We believe that that is achievable with good management and taking into account the manning of departments. However, major development proposals are a small minority of the applications. Of course, this amendment would apply to all applications. I hope that the amendment will not be pressed.
§ Baroness Gardner of Parkes
Can the Minister tell me whether anything in the Bill allows longer time for such major developments because that is the point which impressed me most in the moving of this amendment. I do not oppose twin tracking. In fact, I have often advised small people to use it because some councils do not get on with planning applications. However, I believe that the noble Baroness made a very relevant point about the length of time required for consultation.
I know that for some major developments—and I have had personal experience of this—the council asks for a delay while consultations take place. However, if the developer says that he is not prepared to do that then it is impossible for the required degree of consultation to take place. Is there anything in the Bill which allows for those circumstances in which further time is required?
§ Baroness Blatch
I have made the point that the applications referred to by my noble friend are in the minority. However, I take the point about their time-consuming nature. We have included a number of measures in the Bill—Clauses 12, 14 and others—which will speed up the process, minimise abuse of local authorities and address the problems of wilful or intentional delay.
Our view is that if one takes out of the equation both the 80 per cent. of applications dealt with within the normal time, if the system is efficient, and also those applications which do not resort to twin tracking because the system is better and more efficient, then one is left with a very small number of applications which will be subject to abuse. One must ask whether this amendment needs to be accepted in order to address a difficulty arising on an even smaller minority of applications. That does not minimise the particular difficulties, referred to by both noble Baronesses, of the time-consuming nature of some applications.
§ Lord Jenkin of Roding
Like my noble friend Lady Gardner of Parkes, I have listened to the debate on the amendment. I sympathise very much with the case made out, although not necessarily the amendment moved, by the noble Baroness, Lady Hollis.
When I had to deal with these matters I took the view that the major retail applications and certain other very large planning applications were such that the planning system choked on them. Indeed, that was a phrase once used by one of my officials. A system designed for the vast majority of small and medium-sized applications did not seem to be able to cope with the very large applications within the parameters of the legislation.
The point made by the noble Baroness, Lady Hollis, about the amount of consultation which must take place before such an application can be considered by a committee is very strong. And yet, what is the position of the applicant? Unless some pressure is put upon the local authority to get ahead with the consultation and not just appear to yield to the clamour from the vocal local groups which always resist these major applications, the temptation to delay is substantial.
593 I have tried to see whether this matter could be dealt with through costs. However, sometimes in the last resort councillors on the local authority may feel that the authority may incur costs which it must pay. There cannot be a surcharge for unreasonable delay on a major proposal because that would be absurd. However, I am left with the uneasy feeling that there exists here a serious problem. My noble friend on the Front Bench is right to say that the problem concerns only a tiny proportion of the whole, but the applications are often large, conspicuous and very often controversial. Somehow the balance is not right and the eight week period is not appropriate for those applications. Therefore, the temptation to twin track, as was stated by the noble Baroness, Lady Hollis, is very strong.
It may not be the right amendment; it may not be right to abolish the procedure altogether. But a problem exists and the legislation and the Bill does not address it. I hope my noble friend will be able to take the matter away and reconsider it. Other procedures, such as the use of a planning commission, could be used. Special planning procedures could be found for the larger applications. It may be that that is the right way to deal with the problem.
We cannot expect permissions to be given within eight weeks. In those circumstances, developers being aware of the pressures on local authorities and the likelihood of delay, will seek other means. The noble Baroness used the phrase "Sword of Damocles". That is exactly what the developer is trying to use. The present procedures are not appropriate; they are not apposite for some applications.
§ 6 p.m.
§ Baroness Blatch
I made the point that the Government see this specific amendment as being flawed. I also made the point that for the vast majority of applicants, where a local authority is sluggish in its treatment of a planning application, the Bill provides a useful tool. It may not be widely used, but nevertheless the freedom and right exist.
I am entirely seized of the point raised by my noble friend Lord Jenkin of Roding that a tiny minority is involved and that the minority will be even smaller by the time the Bill is enacted. Nevertheless, the time consumed by that minority on the part of planning authorities is disproportionate both in terms of manpower and costs.
As I have said in regard to a number of other amendments, the amendment should not be accepted. However, I shall give considerable thought to it between now and Report stage, and read carefully what has been said during the course of the debate. I shall speak with my officials in the department on the specific point of addressing the small minority which nevertheless take up the time of local planning authorities. In those circumstances, I ask the Committee to reject the amendment.
§ Baroness Hollis of Heigham
I not only thank the Minister, but also the noble Lord, Lord Jenkin of Roding, and the noble Baroness, Lady Gardner of 594 Parkes, for the helpful comments that they made. It is clear that all sides of the Committee share the concern regarding these large, time-consuming and disproportionately demanding applications.
I intended to ask the Committee to divide, but given the support and recognition of the Committee that a serious issue exists for a small number of applications, and given the Minister's response, I do not propose to do that. However, I should like to mention one or two matters.
I am not clear about the legal drafting of the amendment. That is something I shall need to discuss. But returning to a point made by the noble Lord, Lord Stanley, I wish to emphasise that this issue is not about the applicant versus the self-interest of the local planning authority. The local authority is not a private interest. The local authority is seeking, according to its best judgment and within the framework of the development and structure plan, to adjudicate between conflicting goods; the rights of a developer for development, and the rights of other people very often not to have their peace, their traffic, and so forth, congested by that development.
It is not a question of the local authority's self-interest. It is a question of balancing two interests. That is why so many people recognise that consultation is important. Therefore I am uneasy when listening to phrases such as, "the vested interest of the local authority". The local authority is seeking to maintain the right balance for the entire community against development and non-development, or possibly and preferably some negotiated development.
The point made by the noble Lord, Lord Jenkin, regarding costs is right; it was only recently brought to my attention and I am not sure whether other Members of the Committee are aware of it. One of the incentives for both repetitive applications and twin-tracking is that if the second application is submitted within 28 days of the first, the fee attached is only one quarter of the cost. It may be that the Minister could resolve that matter so that at least the fees are commensurate with the workload imposed.
Would the Minister consider whether there is any other way round the problem, perhaps by introducing a 16-week period of consideration or by the Secretary of State referring back to the local authority on appeal precisely those major development applications identified by the noble Lord, Lord Jenkin of Roding? That would give it further time to consider the points raised. That might be a way forward. We shall want to return to this matter at Report stage. If the Minister could find an amendment which has the support of the Committee to deal with that category of the significant, the substantial, the sensitive and the complex development, and which does not give a red light to sluggish local authorities, we shall consider ourselves satisfied.
With those comments, with the consent of the Committee I beg leave to withdraw the amendment, given the support of the Committee to the issue behind the amendment as moved.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 102A and 103 not moved.]
Lord Meston moved Amendment No. 103A:
Page 24, line 1, leave out subsection (2) and insert:
("(2) After section 78(2) of that Act (right to appeal to Secretary of State) where local planning authority have failed to take a decision on an application insert—
(2A) Where a local planning authority decline to determine an application for planning permission the applicant may by notice appeal to the Secretary of State against the decision on the ground either that the condition in section 70A(1) (a) has not been met or that the opinion of the authority mentioned in section 70A(1)(b) was incorrect".").
§ The noble Lord said: I beg to move Amendment No. 103A. I am conscious of its similarity to Amendment No. 102A which is in the name of the noble Lord, Lord Mottistone. I hope that the amendment will be seen as adopting a slightly different approach to the same question.
I accept that a local authority should be able to turn away a repetitive planning application if the second application is similar to the first, and if there have been no significant changes in any material considerations in the meantime. However, these criteria are essentially matters of opinion, as is stated in the Bill in the proposed new Section 70A (1) (b), in the phrase,
in the opinion of the authority there has been no significant change".
§ That being the position, I suggest that there should be some right of appeal against a local authority decision to exercise its powers to determine an application on those grounds. It should be possible for such an appeal to be handled fairly simply, since the developer concerned will need to identify either reasons why the second application is not similar to the first or what significant change has arisen in the local circumstances since the earlier application was submitted. It should be possible for the Secretary of State to decide such an appeal on the basis of a written notice by the developer and written comments on that notice by the local authority. Such a procedure should entail little or no cost and little delay.
§ I recognise that under the present proposals in the Bill it would be open to a developer to seek judicial review of a local authority decision. However, as we know judicial review is an expensive procedure and can be time-consuming unless one is able to indicate urgency. Furthermore, the burden of proof based on the well-known Wednesbury decision is a heavy one; the applicant needs to show that no reasonable local authority could have reached the decision it did on the basis of the information available to it at the time. Therefore I suggest that judicial review is not a satisfactory basis for challenging local authority decisions under Clause 14 as it presently exists. A straightforward written procedure should be included in the clause. It is an appeal procedure which will concentrate on, if not be confined to, a change in circumstances or other new considerations. It would not enable the developer to do what it is accepted he should not be allowed to do; namely, to go over the same ground again.
§ Baroness Blatch
As the noble Lord has said, most of these issues have been addressed in speaking to Amendments Nos. 102A and 106A. This amendment 596 is intended to give applicants the right of appeal to the Secretary of State against the local authority's refusal again under Clause 14. As I said earlier, such a right would negate much of the purpose of the provision, which is to provide certainty for a period after a decision is made. The new power is intended to prevent developers from wearing down the resistance of local planning authorities and communities. Allowing a right of appeal would undermine that objective.
I have noted the noble Lord's cynicism about judicial review, but I have to say that the courts will be able to review the use of the new power and local authorities will be mindful of that fact in using it. We believe that that is the proper safeguard. If we agree with this amendment, we shall remove the protection that the clause seeks to give to communities threatened by repetitive planning applications. I hope that with those remarks, and with what I said in response to Amendments Nos. 102A and 106A, the noble Lord will not press this amendment.
§ Lord Meston
What I had hoped to suggest was a straightforward, simple appeal rather than a method of making representations, which I think was suggested in the earlier amendment. It was certainly not my intention to negate the purpose of Clause 14 itself, nor to enable developers to wear down planning authorities, as the noble Baroness suggested.
I am not cynical about judicial review. I know its limitations. But I should like to think about this matter further and read not only what the noble Baroness said in relation to my amendment but what was said in the earlier debate, not all of which I was able to hear. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 14 shall stand part of the Bill?
§ The Earl of Lytton
I have already spoken to this clause and there is nothing more that I need do other than thank the noble Baroness for her comments to which I listened with great interest. I still feel that it is something which in practice will not work particularly well, and there are plenty of opportunities for circumventing it. But other than reserving my position in the event of there being an appropriate moment later to raise the matter again, I have no further comment to make.
Clause 14 agreed to.
§ 6.15 p.m.
Lord Renton moved Amendment No. 104:
After Clause 14, insert the following new clause:
§ ("Objection by conservation bodies
. In section 77 of the principal Act—
(a) after subsection (2) (b) there is inserted—
(c) must be given if there is an unresolved objection from the Nature Conservancy Council, the Countryside Commission, the Countryside Council for Wales, the National Rivers Authority, English Heritage or the County Council for the area in which the land to which the application relates is situated;
(b) in subsection (5) after "wish," there is inserted "or any of the bodies mentioned in subsection (2) (c),".").
§ The noble Lord said: Amendment No. 104 is a new clause in the names of my noble friend Lord Norrie and, I am glad to say, the noble Baroness, Lady Nicol, also, as well as myself. It deals with objections by conservation bodies and I must stress that they are statutory conservation bodies. I shall deal with that aspect further in a moment. Amendment No. 104 is grouped with Amendment No. 105 in the name of the noble Lord, Lord Ross of Newport. They overlap to an extent but they are quite different in structure and purpose. Amendment No. 104 is also grouped with Amendment No. 148 and that, too, deals with the question of what is to be done with the statutory conservation bodies when there are planning applications.
§ Noble Lords will see that it is suggested that when there is an unresolved objection from the Nature Conservancy Council, the Countryside Commission, the Countryside Council for Wales, the National Rivers Authority, English Heritage or the county council for the area—there is legislation by reference here, but perhaps I may briefly explain the effect —the Secretary of State is required to issue a direction regarding a planning application referred to him by one of those bodies.
§ I should remind your Lordships that each of the bodies mentioned is given various responsibilities by statute to protect the environment in various ways, and if the local planning authority ignores or rejects the views put forward by the statutory body the will of Parliament is indirectly frustrated. There is a conflict and it is a conflict which surely Parliament should try to overcome. This amendment and Amendment No. 148 attempt to do that although in slightly different ways.
§ I should mention that the National Rivers Authority is particularly keen about this amendment and I should like by way of example to explain some of the situations which can arise in which Parliament has given the National Rivers Authority and its predecessors various responsibilities. For example, there is sometimes undesirable development in a river catchment area which is liable to flooding or pollution, and the development may add to the risk of flooding or pollution. Then sometimes developments in flood plains have been allowed by local planning authorities against the advice of the NRA or its predecessor bodies.
§ Of course, the social and practical costs, as well as the economic costs, of flooding and indeed of increased pollution are considerably more if development has taken place without proper precautions being taken than if advice by the river authority about how a development should be sited or designed has been accepted. Sometimes some infrastructure capital works—at some public cost, admittedly—are necessary to avoid those situations.
§ In most cases the local planning authority and the National Rivers Authority, or any of the other bodies mentioned, will come to an agreement which is 598 satisfactory to both sides, but there have been cases where they have failed to do so and there may be occasional cases in future. This is not likely to lead to an enormous volume of work in the Department of the Environment, but it is a situation that we should envisage, anticipate and guard against.
§ I should refer to the method in the two different amendments. In Amendment No. 104 we state that the Secretary of State, having called in the case, should hold a public inquiry if any of the statutory bodies request it. In Amendment No. 148 it is stated that where the local planning authority seeks to adopt a local development plan to which one of the statutory bodies has raised an unresolved objection, the particulars should be sent to the Secretary of State and the development plan should not be adopted until he has given his authority, his approval, for it to go ahead with or without the objection being accepted; with or without it being modified.
§ I should have thought that each of the two amendments is necessary in order to drive sense and consistency into our statute law. Otherwise Parliament will say that it is not doing its duty. I beg to move.
§ Lord Norrie
I support Amendments Nos. 104 and 148 because they will provide new and important safeguards to protect national environmental interests and prevent them from being ignored. It is a considerable anomaly in the planning system that the views of official government advisers on the countryside, nature conservation, water and heritage issues can be ignored by a local authority either when faced with a planning application or when adopting a local plan.
It is even more surprising that even when a government quango objects to a development proposal the Secretary of State does not have to be made aware of it. The serious damage that has been caused to our sites of special scientific interest, to our national parks and to our archaeological and historical heritage can, in no small way, be put down to the weak role of the Nature Conservancy Council, the Countryside Commission, English Heritage and the National Rivers Authority in the planning system, and I welcome their support for efforts to increase their stature.
This amendment does not mean that no development would ever be allowed because these bodies object. Far from it. It would merely ensure that the most serious threats to our heritage would have to be looked at closely by the Secretary of State and that he would be fully aware of the effect of his decisions.
I have already expressed concern about the over-selective use of the Secretary of State's call-in powers, and it is said that he will only call in applications of national or regional significance. Surely our sites of special scientific interest, our national parks and our ancient monuments are of national significance, yet the Secretary of State has refused to call in almost one third of the cases where English Heritage has asked him to intervene. This is despite the fact that English Heritage does not involve him in 99 per cent. of the applications that it considers.
599 The Committee will be aware of the recent controversy over the granting of planning permission for housing development at Canford Heath in Dorset. That heath is an SSSI. It is also protected by the United Kingdom's international obligations under the Berne Convention, but the local authority was free to give itself planning permission for the development. I have seen reports from a recent meeting of the Berne Convention that the Government promise to consider strengthening the planning protection for sites covered by the convention. I hope that when my noble friend replies she will be able to give us an indication of what this new protection might be.
The general strengthening of the role of the Government's own advisers would be an important first step towards recognising the need to take environmental considerations fully into account before authorising irreversible damage. This amendment would also give a much-needed boost to strategic planning. One of the most welcome features of the Bill was the assurance of a continued role for the county structure plan at the heart of the planning process. However, there has been a problem in implementing these plans when county councils are not responsible for making most of the decisions on planning applications.
This amendment would ensure that the county council's fears could not be lightly dismissed. There is particularly widespread support for this amendment, and I hope that my noble friend can give the Committee a positive response when she makes her reply.
§ Baroness Nicol
We support the amendment so ably moved by the noble Lord, Lord Renton. I would remind the Committee that the Government agreed, during the passage of the Environmental Protection Act, that it was desirable that conservation criteria should have consistent values throughout the United Kingdom. The Countryside Commission, English Heritage, the Nature Conservancy Council and the National Rivers Authority are all responsible for ensuring that standards are maintained. It is therefore essential that unresolved objections should be examined by the Secretary of State to ensure that matters of national importance are determined according to national rather than local criteria.
There is evidence of serious damage to important features in developments that have been given planning permission, and if I may I shall just give the Committee an example from the Nature Conservancy Council's annual report. The example concerns damage to sites of special scientific interest in the year April 1989 to March 1990. As regards activities in respect of which planning permission was granted one site was completely lost, partial loss was suffered in five sites, and long-term damage was done in nine sites. I should particularly like to draw to the Committee's attention the long-term damage figure because it covers an area of 1,031 hectares.
The farmer is often held up as the bogeyman of the site of special scientific interest. However, in that same report we find that long-term damage done by agricultural activity to sites of special scientific interest 600 was confined to 16 sites. There were no sites lost and no partial or complete loss, and it covered 189 hectares. Therefore, one can see that the damage done by developments with planning permission was considerably greater during that year than the damage done by agriculture. I have to say, of course, lest the farmers feel too complacent, that there was a considerable amount of short-term damage, but that is not in the same category.
The Association of Metropolitan Authorities opposes these amendments, which it sees as fettering the Secretary of State's decisions, but surely the contrary is true since the Secretary of State will be given extra opportunities to express his views. The AMA is rightly concerned that economic needs should not be ignored, but neither should environmental needs. The facts revealed in the Nature Conservancy Council's statistics cannot be ignored, and must be viewed in the light of the new approach to conservation of the environment now being built into every government department.
These amendments will help to ensure that in the comparatively small number of cases to which the noble Lord, Lord Renton, drew attention where unresolved objections exist, a better balance may be struck. If our Amendments Nos. 104 and 148 failed, then I think that the amendment of the noble Lord, Lord Ross of Newport, would be a useful strengthening of the Wildlife and Countryside Act. However, I feel that our amendments would do a more useful job, and I hope that they will be supported.
§ Lord Chorley
I had not intended to intervene on this particular amendment, but I listened with the greatest of interest to the noble Lord, Lord Renton, and as chairman of the National Trust I should like to support his amendment. The National Trust is not a statutory body, but we are a national institution and I would suggest that our objectives are national public interest objectives. Of course we enjoy close relations with the statutory bodies listed in the amendment.
I see the amendment being, on occasion, of great benefit to our purposes, which I say are national purposes. I support the amendment, and I hope that we shall get a sympathetic reception from the noble Baroness when she replies.
§ Lord Ross of Newport
I should like to be linked in this amendment with the noble Lords, Lord Renton and Lord Norrie, and the noble Baroness, Lady Nicol. My amendment is No. 105, to which reference has been made. The purpose of Amendment No. 105 is to provide for automatic reference to the Secretary of State of unresolved objections by the Nature Conservancy Council to the granting of planning permissions that would affect sites of special scientific interest.
We have the noble and learned Lord the Lord Advocate on the Front Bench and I have to say to him that we are extremely worried about the situation in Scotland following the decision recently taken in your Lordships' House on the Natural Heritage (Scotland) Bill. We see a real challenge to SSSIs in the amendment that was carried, and I hope that the 601 Government will stand firm on that issue. I hesitate to comment on Scottish affairs although I have a Scottish name and Scottish ancestry, but in my view Scotland is three-quarters of the heritage of the British Isles and the most important part of it. I hope that the Government take the same view.
The noble Baroness, Lady Nicol, pointed out the problems of planning consents that have damaged so many SSSIs. To put her comments into perspective, nearly 40 per cent. of the cases of loss or serious damage to SSSIs for the year ending 31st March 1990 resulted from conscious decisions taken by planning authorities. In addition, 373 hectares—I prefer acres, but I suppose that we must now talk in terms of hectares—of SSSIs suffered short-term damage for the same reason.
SSSIs form a national, mutually supporting system of independent sites selected according to well-worked, nationally agreed criteria. Sites are not included just at someone's whim. Loss or damage to any SSSI is a loss to the national nature conservation resource as a whole. That is especially true of biological systems including mobile animals such as migratory birds.
It may be thought that a prima facie case exists for refusing planning permission for developments that would damage the integrity of any SSSI. The only mitigating circumstances might be where an overriding national need exists for the development proposed. I would like it to go on record that I am totally in favour of planning. I support very strongly the amendments I am putting forward to this Bill. I believe that the Bill is moving very much in the right direction. However, I do not want to be seen as anti local authority planning. I thank God for the Town and Country Planning Act 1947. I wish that we had stuck with it. If that were the case, all land would now be changing hands at existing use value. However, we changed the provision and, unfortunately, we mucked it up. When one goes to Japan or Southern Ireland one sees what problems arise when there is no form of planning. The situation goes completely awry.
I am grateful that the Government are now looking towards planning in order to protect our environment. We have gone through a period when we suspected that would not be the case. Perhaps I should not go much further. Nevertheless, conflict does arise between national values which underlie decisions taken by local planning authorities which unfortunately allow—and under pressure in many cases—damaging developments on SSSIs. These pressures inevitably loom larger than matters of wider concern. It is the Secretary of State for the Environment, whether the issue involves Scotland, Wales, England or Northern Ireland, who has to go to Brussels or wherever to defend this country as regards the Berne Convention. That is the reason why we have problems such as those in Dorset.
Because local planning authorities have no statutory obligation to preserve the natural environment but have an explicit duty under the planning Acts to plan for the improvement of the physical development, they are caught in a cleft stick. All the 602 urging in government circles to have regard to nature conservation is worth little in the hard light of day where statutory decisions have to be taken at a local level and subject to local political pressures. I shall not say any more. I very strongly support the amendment moved by the noble Lord, Lord Renton. I hope that the Government will at least take some note of the amendment to which I have just spoken.
§ 6.30 p.m.
§ Lord Gisborough
I do not think that there is justification for special powers of this nature to be given to these bodies. In effect, the amendments would put these bodies in a stronger position in the planning system than any other group, including the elected local authorities, such as parish and community councils, and the individual members of the public. That would unjustifiably unbalance the planning system. Planning authorities are already required to take into account representations made to them whichever quarter they may come from, and that includes the bodies which have been mentioned.
§ Lord Moran
I support these amendments, which have been so ably spoken to by three noble Lords and the noble Baroness. They are very important. Amendments Nos. 104 and 148 include the county councils among the bodies from which objections would trigger a requirement for planning applications to be called in. The statutory bodies mentioned in these two amendments are very responsible bodies. I am sure that in the great majority of cases the differences will be capable of resolution in discussion. That means that, in the few cases in which a planning application is put forward to which one of the bodies objects strongly, the matter will not be decided by them but put to the Secretary of State. That is entirely right.
I am particularly glad that Amendments Nos. 104 and 148 include the National Rivers Authority among the bodies concerned. During an earlier stage of this Bill I spoke about fish farming and the need for the National Rivers Authority to be consulted at an earlier stage and the advantages that that would bring. The point that the noble Lord, Lord Renton, made about flood plains is extremely important. The building of houses may be allowed by planning authorities in areas which are subject to flooding. There is then a tremendous fuss when flooding occurs and great expense and difficulty is incurred which could have been avoided had the National Rivers Authority been consulted earlier as required by these amendments. Amendments Nos. 104 and 148 are the more desirable amendments because they are wider, though the thought behind the amendment tabled by the noble Lord, Lord Ross, is equally valid.
§ Baroness Carnegy of Lour
I share the anxiety expressed by the noble Lord, Lord Ross, about some of the decisions taken by your Lordships during the passage of the Natural Heritage (Scotland) Bill the other day. I was anxious about that. As regards the present matter, I agree with my noble friend Lord Gisborough. One has to look at the issue from the point of view of the planning authority which takes a 603 position on an application when one of these bodies or the county council objects. There is a discussion and an attempt is made to resolve the matter. If Amendment No. 104 is adopted the planning authority is automatically overridden and the decision to call in is made by an unelected quango or by the county council.
If one is elected to be a member of a planning authority the person who should decide whether to overrule that authority's decision is another elected person; namely, the Secretary of State. I am very anxious that these bodies should have their say. I was very surprised to hear the Labour Front Bench speak as it did. The relationship between conservation quangos is a very delicate matter. The noble Lord, Lord Chorley, put the point of view of the National Trust. These expressions of opinion have to be listened to with great care. It is wrong to allow an unelected quango completely to overrule a decision and for the application to be sent directly to the Secretary of State. The decision comes in the wrong place. The right person to decide whether a matter should be called in is another elected person. That is absolutely basic to our planning system. I was very sorry to hear the suggestion that has been made.
§ Lord Renton
There is no question of the automatic overruling of a local planning authority. In the rare cases in which the statutory body (which has duties imposed on it by Parliament) has been unable to persuade the local authority, then under Amendment No. 104 the matter would be called in by the Secretary of State. He can hold a local inquiry at which all views can be heard. His inspector would report back to him. There is no question of the democratically elected local authority simply being overridden.
§ Baroness Carnegy of Lour
I did not mean that. I meant that the decision to call in is made by the quango. I do not believe that that is right. The decision to call in should be made by an elected person —the Secretary of State.
§ Lord Ross of Newport
I welcome the first comment made by the noble Baroness. Does she accept that Scotland is regarded as the jewel in the crown as regards nature conservation?
§ Lord Wade of Chorlton
I support noble Lords who have said that the Government should not accept these amendments. I do so because of the very well explained position put forward by the noble Baroness, Lady Hollis, concerning the role of the planning authority. She was extremely clear and effective in explaining that it is the planning authority which has to take in the range of views expressed and, having considered all those various views, make the final decision. There is no question that the statutory bodies will play a very important part. What is being suggested is that certain bodies have a second bite at the cherry, because they can come back again. But what about all the others who might equally disagree or find that they cannot accept the decisions that are 604 made? They might be extremely important for the area, such as whether the employment is correct, whether investment can take place or whether consumers can be satisfied. It would be wrong to accept these amendments as suggested.
§ The Earl of Lytton
Before the Minister rises to reply, if I may take up the time of the Committee, I should like to raise an important point in connection with what was said by the noble Lord, Lord Wade. At the risk of crossing swords with the noble Lord, Lord Renton, it would be fine if all the various bodies spoke with one voice; but they do not do so. Very often they cannot agree among themselves. For instance, I know of a situation where the National Rivers Authority, on the one hand, and the Nature Conservancy Council, on the other, are at loggerheads because they cannot agree on the correct policy for dealing with a certain area of land. Thus I see the situation opening up a complete débâcle of the planning system where these bodies, with all their various interests which do not coincide, may have rights in the way that is proposed by these amendments. It is right and proper that such bodies should have an input of which great regard is taken, but, for the reasons that I have stated, I question whether these amendments are the right vehicle.
§ Baroness Blatch
Amendment No. 104 concerns the exercise by the Secretary of State of his powers to call in an application for his own determination under Section 77 of the principal Act. It would reduce his discretion, because objections to a planning application by a range of conservation bodies or the county council would require automatic call-in of the application concerned.
The Government have the greatest respect for the wisdom and judgment of conservation bodies. We recognise too the vital role played in the planning system by the county councils; but we do not believe that we must invariably defer to their judgment. To do so would be an abdication of our responsibilities.
We are anxious about the amendments on three counts. First, if we breach the principle that the decision to call an application in is the Secretary of State's alone, we would give a privileged position to only some of the bodies on whose advice we rely, while others would feel justly aggrieved. That point has been well made by a number of noble Lords. Secondly, conservation bodies and others have specific roles to play in the planning system and specific interests to promote. But planning decisions should be taken in a wider context than that, in the light of all material considerations, and in the public interest. Thirdly, the Government's approach is not to interfere with the jurisdiction of the local planning authority unless this is absolutely necessary—again a point well made by my noble friend Lady Carnegy of Lour. We are very selective about calling in cases for our decision and in general do so only if planning issues of more than local importance are involved.
Amendment No. 105, in the name of the noble Lord, Lord Ross, relates only to sites of special scientific interest (SSSIs), or land subject to a nature conservation order. The Government attach great 605 importance to nature conservation. DoE Circular 27/87 advises local planning authorities to have proper regard to nature conservation considerations in determining planning applications, and to consult the NCC not only—as they are legally required to do—on developments within SSSIs, but also on those which affect SSSIs indirectly. The environment White Paper announced that the Department of the Environment would be issuing further policy guidance to help local planning authorities. It is my intention to continue to pursue that document, and the hope is that it may be available, if not before this Bill passes through the House of Lords, certainly before it does so through the House of Commons.
The Secretary of State has shown that he is prepared to call in planning applications on SSSIs: for example at Lydd Airport, at the Isle of Sheppey and at Chichester Harbour. The Government are considering making more explicit the criteria relating to such call-ins, but we believe that the question of call-in is a matter for the judgment of the Secretary of State, taking account of all material considerations. He will pay very careful regard to the views of the Nature Conservancy Council and to other advisory bodies in reaching his decision. But the decision to call in should be his and it should not be dictated by another body's views.
Amendment No. 148 would provide that where the named organisations had objected to local plan proposals and the planning authority did not propose to modify them to take account of the objection, the authority would be obliged to send the objection to the Secretary of State, together with their reasons for not modifying their proposals, and could not proceed to adopt their proposals until authorised by the Secretary of State. Where the organisation maintained their objection, the Secretary of State would be obliged to call in the proposals for his own decision.
Clearly any objection raised to a local plan by any of the bodies listed in the amendment is something which needs to be considered very seriously by the local planning authority. But the local plan procedures for objection at deposit stage, for their consideration by an independent inspector at inquiry, and for objection at proposed modification stage, already provide ample opportunity for objections to be fully considered. The further power proposed in the amendment for the named organisations to require the Secretary of State's intervention at adoption stage would only serve to create delay in the plan process. If an organisation were unhappy at the council's decision following the public local inquiry, they could ask the Secretary of State to use his reserve powers to direct modification or call in at that stage; and the Secretary of State would consider their representations very carefully. But I am sure it is right that the decision whether to call in a local plan should be a matter for judgment, and not something automatically triggered by the lodging of an objection, even from one of those bodies. It has been pointed out to me that if, say, four of the named objectors agreed and only one disagreed that would still trigger off automatic call-in. There is no doubt that one of the 606 main problems about this amendment is that it would make some bodies and some interests more equal than others.
A very important point was raised by my noble friend Lord Renton, and the noble Lord, Lord Moran, concerning the issue of development in river catchment areas which adds to the risk of flooding. The Government have recently invited the National Rivers Authority to consider whether there is any need for updating the DoE, MAFF and the Welsh Office circular giving guidance on development in flood risk areas. That has been taken into account by my department.
The noble Baroness, Lady Nicol, referred to statistics. It is important to put on record some statistics which need to be taken into account regarding these amendments. The NCC's 60th annual report may have been the document used by the noble Baroness. It is a fact that during the 1980s there was a decline in damage to SSSIs. I must emphasise that that is not a reason to be complacent. The report indicates that 418 SSSIs were added to the network in 1989–90, increasing the coverage from 1,414,335 hectares to 1,618,641 hectares, which was an increase in Great Britain of 204,306 hectares. Before a noble Lord says, "Yes, but that is the gross figure, not a net figure" I would say that nevertheless the net figure is still an increase of 116,590 hectares.
The NCC also indicated that there had been a sharp increase in short-term agricultural damage, which I think was a point made by the noble Baroness. There were 122 sites compared with 71 sites in 1988–89, but this was partly due to better monitoring and the difficulties encountered in reaching agreements with commoners. As monitoring and the system for negotiating agreements improve, the hope is that we shall see an overall improvement in the system. The importance of this subject is not under-estimated by me or by my department; nor is it by the Government. However, it must be said that this amendment is calling for special consideration for special interests and special organisations. But, as I said, only one of the named organisations can trigger off automatic call in.
The Environmental Protection Act, this Bill when it reaches the statute book, many of the statements in the White Paper This Common Inheritance and much that will flow therefrom, are all placing many duties on local authorities. A significant duty is the obligation that they must take into account and have regard to, the environment and areas of special scientific interest, outstanding natural beauty and so on. The Government take such matters very seriously, but this amendment is unacceptable.
§ Lord Renton
I am most grateful to my noble friend for that reply. I am somewhat encouraged by it. In moving Amendment No. 104 and speaking also to Amendment No. 148, I must confess that I felt that this would be a test of the environmental friendliness of Her Majesty's Government and indeed of noble Lords. I am grateful to all Members of the Committee who have spoken, some of whom revealed greater environmental friendliness than others. I also felt that 607 consideration of the two amendments to which I referred would be a test of the credibility of the Government's White Paper.
The somewhat differing views which we have heard today—if I may say so with the deepest respect, as noble Lords who spoke have in many cases much greater experience than I have in such matters—revealed a misunderstanding about what goes on and about the intention behind the amendment. However, I should not weary the Committee by answering all those points. I shall simply say that these amendments have achieved something considerable: they have made my noble friend at the Department of the Environment and her colleagues think about what more they ought to be doing in order to ensure that these statutory bodies with their responsibilities—that is, the quangos—are not utterly frustrated in what they do.
My noble friend has made it clear that the Secretary of State does call in cases where there is a conflict or a likely conflict. She has also listed various further steps which the Government intend to take to protect the environment. In view of all that, I feel thankful enough to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ross of Newport had given notice of his intention to move Amendment No. 105:
After Clause 14, insert the following new clause:
§ ("Planning applications in respect of certain land
§ After section 77 of the principal Act there is inserted—"
§ "Planning applications in respect of certain land.
§ 77A.—(1) Where a local planning authority receives an application for planning permission in respect of a development which would affect land within any area notified under section 28 of the Wildlife and Countryside Act 1981 or the subject of an order under section 29 of that Act, and where—
- (a) the Nature Conservancy Council have objected to the grant of planning permission and have not withdrawn that objection; and
- (b) the local planning authority proposes that planning permission should be granted, the application shall be referred by the local planning authority to the Secretary of State for determination by him.
§ (2) An application for planning permission referred to the Secretary of State under this section shall be determined as if it were the subject of a direction given under section 77, and the provisions of that section shall apply with any necessary modifications." ").
§ The noble Lord said: I wish to God that I still shared the belief in local planning expressed by the noble Lord, Lord Wade. That is no longer the case. I now believe that there has to be a radical reform of local government. In the circumstances, I shall not move the amendment.
§ [Amendment No. 105 not moved.]
Loud Fraser of Carmyllie moved Amendment No. 106:
Before Clause 37, insert the following new clause:
§ Notice etc. of applications to owners and agricultural tenants
§ (".—(1) For section 24 of the 1972 Act (notification of applications for planning permission) there is substituted—
§ "Notice etc. of applications to owners and agricultural tenants.
- (a) notice to be given of any application for planning permission, and
- (b) any applicant for such permission to issue a certificate as to the interests in the land to which the application relates or the purpose for which it is used,
§ (2) Notice under subsection (1) of this section shall be given to any person (other than the applicant) who at the beginning of the period of twenty-one days ending with the date of the application was—
- (a) the owner of; or
- (b) the tenant of any agricultural holding any part of which was comprised in,
§ (3) A development order or regulations may require an applicant for planning permission to certify, in such form as may be prescribed by the order or the regulations, or to provide evidence, that any requirements of the order or the regulations have been satisfied.
§ (4) A development order or regulations making any provision by virtue of this section may make different provision for different cases or different classes of development.
§ (5) A planning authority shall not entertain any application for planning permission unless any requirements imposed by virtue of this section have been satisfied.
§ (6) If any person—
- (a) issues a certificate which purports to comply with any requirement imposed by virtue of this section and contains a statement which he knows to be false or misleading in a material particular; or
- (b) recklessly issues a certificate which purports to comply with any such requirement and contains a statement which is false or misleading in a material particular,
§ (7) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
§ (8) In this section "interest in land" includes an interest in any mineral in the land.
§ (9) Proceedings for an offence under this section may be brought at any time within the period of two years following the commission of the offence."
§ (2) For section 26(3) of the 1972 Act there is substituted—
- "(3) Where an application for planning permission is accompanied by such a certificate as is mentioned in subsection (1) (b) or (3) of section 24 of this Act a development order or regulations may—
- (a) provide that a planning authority shall not determine an application for planning permission before the end of such period as may be prescribed;
- (b) require a planning authority—
- (i) to take into account in determining such an application such representations, made within such period, as may be prescribed; and
- (ii) to give to any person whose representations have been taken into account such notice as may be prescribed of their decision.
- (3A) A development order or regulations making any provision by virtue of this section may make different provision for different cases or different classes of development."").
§ On Question, amendment agreed to.
§ Clause 37 [Power of planning authority to decline to determine applications]:
§ [Amendment No. 106A not moved.]
§ Clause 37 agreed to.
§ Clause 15 [Dismissal of appeals in cases of undue delay]:
§ [Amendments Nos. 106B to 106E not moved.]
§ Clause 15 agreed to.
§ Clause 38 [Dismissal of appeals in cases of undue delay]:
§ [Amendments Nos. 106F to 106J not moved.]
§ Clause 38 agreed to.
§ Clause 16 agreed to.
§ 7 p.m.
Lord Moran moved Amendment No. 107:
After Clause 16, insert the following new clause:
§ ("Limitations on duration of planning permission
.—(1) For section 91(1) (b) of the principal Act (general conditions limiting duration of planning permission) there is substituted—
(b) five years beginning with such a date (whether specific or by reference to the completion of other development consisting of the winning and working of minerals which is already being carried out by the applicant for the planning permission) as the authority concerned with the terms of the planning permission may direct.
§ (2) In section 91(4) paragraph (d) is omitted.").
§ The noble Lord said: The Committee will be aware that on receipt of ordinary planning permission in the case of, for example, an extension to one's house or something of that nature work must begin within five years, or such other time as specified; otherwise it lapses and the applicant has to re-apply.
§ The amendment proposed refers to minerals such as peat and gravel extraction. The objective is to ensure that the same conditions apply; in other words, that the work should begin within five years of the permission being granted or within five years of completion of the mineral extraction from an existing site, or if the work has not been started, a new application would have to be made.
§ My reasons for putting forward the amendment are that I believe that the public perception of environmental priorities has changed considerably. There is now a much greater wish among the public to protect the environment from unnecessary change than there was some years ago. The same applies in respect of planning authorities. Decision-makers in the planning machinery are rightly under pressure to minimise damage to the environment and to pursue sustainable development objectives.
§ Therefore, against that background, it seems to me that a developer should not be allowed to take more than five years to decide whether to begin a development for which planning permission has been granted. I say that because over a period of five years the acceptability of such a development in environmental terms may change. Indeed, people may become more aware of the environmental value of a piece of land, or there could be changes in planning policy.
§ In the mineral field at present a planning authority has no means of revoking the original planning 610 permission before it is time-expired other than by a complex bureaucratic process which involves the payment of compensation. In practice, local authorities are reluctant to withdraw planning permissions which may make them liable to pay very high sums of money in compensation.
§ The idea of putting forward such an amendment came to my mind primarily because of my interest in the preservation of our peat resources, about which I initiated a debate on 9th May of last year. Members of the Committee may be aware of the case involving planning permission to extract peat from an area known as the Fens and Whixall Mosses in the Welsh Borders. In that case the planning authority was not made aware of the nature conservation importance of the site until several years after permission had been granted. To have revoked planning permission could have resulted in compensation of up to £1.5 million. That is the sort of case I had in mind when I tabled the amendment.
§ I wish to create a safety net which would limit the duration of the permission to a period of five years. However, the amendment has been drafted to recognise the fact that special consideration needs to be given to mineral developers who need to secure the continuity of, say, aggregate supply for building developments. That is the object of the amendment. I very much hope that the Government will be prepared to accept it. I beg to move.
§ Baroness David
I strongly support the amendment. I became very much aware of the problem when the noble Lord, Lord Moran, tabled his Unstarred Question about peat resources last May. It was quite clear how much damage was being caused as a result of these old planning permissions which had been allowed to continue for over 40 to 50 years in some cases. During that debate I said that only new legislation revoking licences issued before a certain date and laying down much stricter conditions for new ones could stop the rot which looks likely to finish our supply of peat by the middle of the decade. Are the Government alive to the problem and, if so, do they propose to do anything about it as Germany has done?
The NCC strongly supports the review of mineral workings and says that there should be a once-and-for-all cut-off for long-standing planning permissions, including those granted under interim development orders. Linked to Amendment No. 107 moved by the noble Lord, Lord Moran, are Amendments Nos. 114A, 115A, 120A and 129A. I shall refer to those amendments because they are linked and I shall try not to be too long. Three of them have been suggested by the Royal Society for Nature Conservation, which welcomes the amendment to make all mining sites subject to review by the local authority. That plugs the loophole where local authorities can avoid their duty to review early planning permissions (such as interim development orders which have a planning permission) which have been operated for a time but have been dormant for more than five years.
However, about 39 reviews only have been started by mineral planning authorities and few have been 611 completed since the reviews were introduced by the 1981 Act. Section 105 should be further amended to take account of that failure and to make the duty to review all sites every five years a requirement. That would bring us into line with other European countries such as Germany, as I said in my speech last May and which I quoted again this evening. Amendment No. 114A would achieve that objective.
Amendment No. 115A relates to the special basis for compensation in respect of orders affecting mineral workings. At present, the mineral compensation modifications made by regulations under Schedule 11 do not apply if the order for which the compensation is offered imposes any restriction upon the winning and working of minerals. In other words, full compensation has to be paid if any substantial changes to a mineral extraction site are made. That makes it impossible for mineral planning authorities to deal effectively with any of the post-war planning permissions which were granted over indeterminate areas and which can be reactivated after 30 years' or 40 years' dormancy.
The interim development order permissions granted between 1946 and 1948 are of concern. They cover extensive areas which are valuable wildlife habitats. The threat of reactivation of those permissions causes considerable disruption to people's lives and to the countryside. The case of Carmel Woods in Dyfed shows how an IDO has caused years of conflict between local people and McAlpine's, the quarry operators. Dyfed County Council, which is the mineral planning authority, has been unable to resolve the dispute over the extent of the claimed permission or to arrive at satisfactory arrangements for the operation of the quarry. The case is now going to the High Court where the extent and the validity of the permission will be determined. The reason for the dispute is that the original maps which were attached to the permission are claimed to have been lost. Three farms are threatened by the claimed permission and also a nationally important woodland SSSI with caves supporting Greater Horseshoe Bats.
Amendment No. 115A has been produced to try to change that situation. Since the review of planning permissions for minerals are statutory reviews, it would be appropriate to make the EC directive on environmental assessment applicable to the reviews of those permissions. The EC directive did not exist when the 1981 Act was passed, and the Bill is an opportunity to bring mineral planning law into line with European law. Environmental assessment is a useful means of considering the steps needed for the protection of the environment.
Amendment No. 129A does not come from the RSNC. It deals with interim development orders and tries to bring them under planning control. Those orders are interim permissions for mineral developments which were required by the Town and Country Planning Acts during the period July 1943 to July 1948, when the Town and Country Planning Act 1947 came into force. They were preserved by that Act, and 612 now, by paragraph 3 of Schedule 3 to the Planning (Consequential Provisions) Act 1990, no fresh planning permissions are needed to implement IDOs.
There are two major problems: under the 1947 Act there was no requirement to register the IDO permissions. There is therefore uncertainty as to how many of those orders exist or how much land is affected. As there is no requirement to register the orders, they do not show up in land searches. As a result, significant distress can be caused to those people whose property is affected by extensions to quarries, or new mineral developments, who often bought their properties while being unaware of the existence of IDOs. IDOs often relate to large areas of land and not to particular sites, such as the immediate environs of quarries extant in the 1940s. I have further examples of such sites but I shall omit them because I do not have the time to give them.
Amendment No. 129A seeks to do three things because of all those problems. First, it repeals the relevant provisions of the 1971 and 1990 Town and Country Planning Acts which preserve the planning permissions granted by the IDOs in the 1940s. Secondly, it gives the Secretary of State, following consultation with interested bodies, the power to review the IDO permissions and to grant planning permission for those developments which he feels would be appropriate today, subject to whatever conditions he may impose. Thirdly, where planning permissions granted by IDOs are not renewed or are subject to more stringent conditions than those imposed under the original permission, the occupier may apply to the mineral planning authority for unrestricted planning permission to carry out the development to which the relevant permission relates. An application will be lodged with the local planning authority and recorded on the planning register when the occupier of the land gives a copy of the original IDO to the mineral planning authority.
The amendment will remove some of the worst effects associated with the IDOs. In particular, those IDOs which are not presented to the mineral planning authority within a specified time will lapse, removing much uncertainty and potential environmental damage.
Amendment No. 120A is a further amendment put forward by the RSNC. It relates to the aftercare conditions imposed upon grant of permission. To put it briefly, the amendment imposes an obligation upon those who have abandoned mineral sites which become important wildlife habitats. It would be sensible to make a nature conservation after use, the deemed restoration condition; for example, where peatlands, gravel pits and small limestone quarries are concerned.
I am afraid that I have given a rather hurried explanation of the amendments because I am aware that everyone feels that we should be making progress. That does not mean that I do not feel strongly about them. This is an important nature conservation matter. For instance, when peat was extracted in the 1940s, it was more or less done by hand, spade or whatever the instrument was. We now have huge 613 machines that ravage the earth, which is something that we should try to stop. I hope that the Minister will look sympathetically on this raft of amendments.
§ Lord Ross of Newport
I am sure that the Government are aware of the problems which have given rise to the amendments, which I support. My attention was drawn to them by the BBC programme "Country File" which is broadcast at 12.30 p.m. on a Sunday, to which I give great credit, and which dealt with a problem that is arising in South Wales. I wrote immediately to the BBC and asked for a copy of the handout which came from the RSNC. A number of farmers and landowners suddenly found that their land could be excavated for minerals due to a consent which was granted before 1947. The noble Baroness, Lady David, has explained the background to such events.
My attention has also been drawn to what is happening in Lancashire in the constituency of my honourable friend—I call him my friend—the Minister for the Environment, Mr. David Trippier, where a large amount of gravel is being extracted from quarries which date back to before 1947. One problem occurs when people buy properties in such areas. Their solicitors make searches but those facts do not turn up. The people are unaware of the fact that they have bought a property which may suddenly become part of a great quarry. The County Planning Officers Society—and for once I am on the right side of the local authorities—which represents planning officials in England and Wales joins the CPRE and the RSNC in calling for legislation to end the validity of these consents.
I realise that these permissions are banked in large companies which need to extract the minerals. We have a big building programme in roads, railways and similar works and minerals are needed. However, we should rectify the situation and make sure that we take them from the areas that cause the least damage.
Amendment No. 116A which appears under my name would amend Schedule 9 to the Town and Country Planning Act 1990. Compensation is normally paid under Section 116, where old mineral permissions are revoked or modified under Section 97 of the Act and paragraph 7 of Schedule 1 to the Bill. Some of the compensations could be in the millions, but the Bill introduces a power to make regulations to restrict the compensation. My amendment will allow the specific problem of the pre-1948 provisions to be addressed.
Amendment No. 118 deals with the definition of waste. The courts may interpret "waste" in planning law differently from its definition given in the Environmental Protection Act 1990. In R v Rotherham MBC ex parte Rankin the court gave "waste" in planning terms its ordinary meaning. While this may not lead to great differences at present, the complexity of definitions in European Community directives would be made worse if there were a difference between "waste" for planning purposes and 614 "waste" for environmental control purposes. That is nitpicking but I hope the Government will be able to deal with the situation. I beg to move.
§ Lord Fraser of Carmyllie
Any appreciation of what is provided for by Schedule 1 should lead to the conclusion that the Bill already covers fully a number of the problems that undoubtedly exist in relation to mineral workings and other voids. It is clear that there is a good deal of concern about the adequacy of the provisions that were introduced by the 1981 Minerals Act to deal with old permissions. The amendments grouped together here all have that common theme.
I recognise the increasing concern about old planning permissions for mineral workings, including those for peat extraction and especially those granted under IDOs which are unlikely to have conditions attached that would meet today's standards. The powers introduced by the 1981 Minerals Act providing for mineral planning authorities to carry out reviews of mineral sites in their areas and to make appropriate orders revoking and updating the permissions to modern standards were intended to deal with the problem. We are disappointed that more progress has not been made.
It was announced in the environment White Paper that we intended to review the operation of the provisions introduced by the 1981 Minerals Act and the compensation arrangements under it. We shall look at the method and timing of the duty to review sites, the provisions governing time limits on mineral permissions; the order-making powers and the entitlement to and amount of compensation; and the adequacy and effectiveness of restoration and aftercare conditions. The particular issues raised by IDO permissions will clearly form an important part of this review. The comments made during the course of this debate will undoubtedly be taken into account.
However, as I have indicated from that summary, the review will be necessarily a wide-ranging one covering all aspects of the 1981 Act, including consideration of the special problems to which the noble Lord, Lord Moran, had particular regard; namely, peat extraction. Work has already started on that review, but it is expected that such a review would take 18 months to complete, given its necessary complexity.
I have some sympathy with the overall intention behind these amendments but a careful balance must be struck between our concern to protect the environment and the legitimate rights of mineral operators to exercise what are today valid planning permissions. The removal of existing development rights with no compensation would be a fundamental change in the principles of the land use planning system which should not be made hastily.
Nevertheless, I wish to emphasise that the concern about IDOs is recognised and in the light of the amendments that have been tabled and that we are discussing now, the Government are considering whether some action should be taken in advance of the findings of the review to which I have just referred. It is hoped to be able to announce the Government's 615 conclusions during the passage of the Bill. In any event, I hope that mineral developers will recognise that it is in their own interests to take heed of the concerns that have been expressed and will make every effort to ensure that all their operations are run on the basis of best possible practice and that their activities pay due regard to the environment.
Perhaps I may turn specifically to Amendment No. 118 in the name of the noble Lord, Lord Ross of Newport. I understand the reasons for his amendment. I trust that after what I have said he will accept that it is not necessary.
The proposals in Schedule 1 to the Bill have two broad objectives. The first objective is to ensure that the creation or enlargement of a mineral working deposit is treated in the same way as the winning and working of minerals for the purpose of planning legislation. The second is to extend, for use in suitable circumstances, the power to impose aftercare conditions to all planning permissions for waste disposal and to revocation, modification and discontinuance orders.
However, we do not otherwise intend to alter provisions in the Town and Country Planning Act 1990 relating to the deposit of such materials. In those provisions, for example, Section 55(3) (b) uses the phrase:the deposit of refuse or waste materials on land".The phrase is unaltered from the 1971 Act and although not defined for the purposes of planning legislation, it has been used in tandem with the predecessor of the Environmental Protection Act 1990—Part I of the Control of Pollution Act 1974. It has been so used for many years without, so far as we are aware, causing problems of definition for the statutory authorities or the industries concerned. It is arguable that in certain circumstances, adopting the definition that the noble Lord has advanced might have a constraining effect rather than allowing for a better use, as he anticipated.
Given what I have said about the review and what I further indicated we anticipate will be possible before the passage of the Bill is concluded, I hope that noble Lords will not press their amendments.
§ 7.15 p.m.
§ Lord McIntosh of Haringey
I am trying to find something helpful and hopeful in what the noble and learned Lord the Lord Advocate stated. When he said that legislative action may have to be taken in advance of the review, is he speaking in code? Does he mean that action may have to be taken during the passage of the Bill?
§ Lord Fraser of Carmyllie
It was not intended to be coded, but I will repeat what I said. We hope to consider many of these matters in advance of the wider review which will take 18 months. We hope to announce our conclusions during the passage of the Bill.
The noble Lord will appreciate that when one deals with matters of compensation and restricting the rights of compensation that are otherwise available 616 under existing law, one has to proceed very cautiously indeed. Courts beyond this land might suddenly show an interest in what is done. It is not intended to be a coded or vague indication. The strength of feeling over this is clearly understood. It is complicated, but I intended to convey to the noble Lord in my remarks that we hope to announce our conclusions before the Bill has completed its passage.
§ Lord Moran
I am grateful to the noble and learned Lord the Lord Advocate for the full and comprehensive reply that he has given to my amendment and those grouped with it. I am encouraged by what he said about the progress of the review and the intention to announce the Government's conclusions, possibly during the passage of the Bill and also by the recognition in what he said that there is a serious and difficult problem on which many Members of the Committee have strong views.
I look forward to hearing the Government's conclusions. Having said that, it is obviously appropriate for me to withdraw the amendment. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 108 not moved.]
Lord Ross of Newport moved Amendment No. 109:
After Clause 16, insert the following new clause:
§ ("Meaning of development
§ . In section 55(2) (e) of the principal Act (meaning of development) after "afforestation)" there is inserted ", other than agricultural or forestry operations prescribed by development order." ").
§ The noble Lord said: I wish to deal with this amendment briefly as I do not intend to divide the Committee on it. I wish to clarify a comment that I made in our previous debate on Thursday 17th January about agricultural buildings. I have given notice of my intention to discuss this matter to the Minister and to the noble Lord, Lord Stanley of Alderley. Unfortunately the noble Lord is not present at the moment. On 17th January we had a slight difference of opinion as regards present planning consents for agricultural buildings. As understand it, the planning consents are covered by part six of the general development order of 1988 which makes it clear that no consent is needed for buildings of less than 5,000 square feet, provided the building in question is to be used for agriculture and is not within 25 metres of a classified road or 400 metres of a dwelling house, or more than 12 metres in height.
§ However, the point I sought to clarify was whether a further building of less than 5,000 square feet could be added to an existing building of less than 5,000 square feet without the need for further planning permission. Apparently such a building can be erected after two years have elapsed, or in any event if it is more than 90 metres—that is about 100 yards—from the existing building. Furthermore, the size of the holding need not be more than one acre in extent.
§ The Government have issued a discussion paper which suggests that this size may be extended to five hectares—I believe that is about 12 acres—provided the building in question is for agricultural use. The current situation is profoundly unsatisfactory and 617 must be reviewed. I wished to get the matter straight as we did not get it straight when we first debated the matter. I hope that what I have said is correct and I look to the Minister to respond. I beg to move.
When this matter was discussed in a previous debate I was rather silent. The discussion took place mainly between the noble Lord, Lord Ross, and my noble friend Lord Stanley of Alderley. I allowed the noble Lords to get on with the discussion as I was not certain of the answer to the problem at that stage. However I can confirm that the broad understanding of the noble Lord, Lord Ross, of permitted development rights for agricultural buildings is correct. I could go into details if the noble Lord wishes, but in the interests of time I hope I may leave the matter at that.
§ Lord Ross of Newport
I am sorry that the noble Lord, Lord Stanley of Alderley, was not present earlier. However, he is present now and I shall talk to him later. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Nicol moved Amendment No. 109A:
Before Clause 17, insert the following new clause:
§ ("Common Land
§ .—(1) Part 1 of this Act shall apply to common land to the extent that any use, operation or activity on the land does not fall within the terms of a management scheme drawn up in accordance with Schedule (Common Land).
§ (2) Schedule (Common Land) (which provides for the exclusion of planning controls by management schemes) shall have effect").
§ The noble Baroness said: I am not sure of the wisdom of moving this amendment at this hour but I shall do my best to be brief. Amendment No. 109A and the others grouped with it would implement those recommendations of the Common Land Forum which are concerned with access and management. I fear that it is necessary to supply some background as this is a long and tortured story.
The Royal Commission on Common Land worked for three years from 1955 to 1958 on this matter. In 1958 it published a report which stated its recommendations on access. I have been unable to obtain a copy of the report, which is now unavailable, except in the Library. Paragraph 314 stated:
We recommend that all common land should be open to the public as of right but subject to the general conditions in paragraphs 318 and 319".
The conditions state that access should he as set out in Schedule 2 of the National Parks and Access to the Countryside Act and should be subject to any by-laws for the prevention of nuisance and the preservation of order.
§ There were many other recommendations in the report, including those for registration, but we are not dealing with those this evening. The Commons Registration Act was passed in 1965. I shall refer to that Act briefly later. It was found to be defective and has been quite disastrous in its operation. In 1975 to 1978 a Department of the Environment-led interdepartmental working party largely upheld the Royal Commission's report. In June 1983, concerned by the 618 lack of progress, the Open Spaces Society convened a national conference of all the parties who were interested in the matter. That was so successful that in the autumn of 1983 the Countryside Commission set up a forum to review the report of the Department of the Environment's working party and to formulate proposals for future legislation which would command the support of all forum members.
§ It is important at this stage that the Committee should know the identity of those forum members. They were the Association of County Councils, the Association of District Councils, the Association of Metropolitan Authorities, the British Horse Society and the Byways and Bridleways Trust, the Council for National Parks, the Council for British Archaeology, the Council for the Protection of Rural England, the Council for the Protection of Rural Wales, the Country Landowners' Association, the Countryside Commission, the Crown Estate Commissioners, Ian Mercer, an officer of Dartmoor National Park who is now the chief executive of the new Countryside Council for Wales, the National Association of Local Councils, the National Farmers' Union, the Nature Conservancy Council, the National Trust, the Open Spaces Society, the Ramblers' Association, the Sports Council, the Association of Welsh Commoners and an English Commoner. All those bodies were under the chairmanship of Mr. Maurice Mendoza. Mr Mendoza is aware of the amendments we are proposing tonight and he supports them.
The Committee will therefore appreciate that the forum was a representative body. It met from January 1984 until May 1986, when it published its report. The report gained widespread acceptance. It was signed by all those who had taken part in the forum and there was no dissent. In 1986, after the publication of the report, the Moorlands Association was formed—that may be a coincidence—with the objective of,
The conservation of heather moorland in England and Wales for the lasting benefit of all those entitled to enjoy it".
I shall say no more about that at this stage.
§ In May 1987 the Conservative Party was so keen on the findings of the forum that it incorporated them into its 1987 election manifesto. However, after that the story becomes rather unclear. Constant questioning in this Chamber and in another place gained the answer "When parliamentary time permits" or similar replies. Rumour had it that a working party was attempting to sort out differences, mostly raised by the newly formed Moorlands Association. The noble Earl, Lord Peel, was a member of that association. He was consulted during the passage of the forum's investigation. He insisted towards the end of 1990—at that time I tabled yet another Question about commons—that the differences of the association had been resolved.
On 26th July 1990 in response to pressure in both Chambers a statement was issued reiterating the Government's commitment to legislation. However, at that point there was a subtle change of emphasis which led Dr. Clarke of the Countryside Commission to comment in a press release that,
the implications of the statement for the public use of commons were as yet unclear: the recognition of the importance of public access to common land is welcome. But the statement seems to signal that under any new legislation public use of a common could be restricted (eg to rights of way) by a local decision of the main legal interests in the land in each case. We too want access and management issues tackled at the local level —that was what the Forum recommended—but within clear, nationally agreed guidelines on what sort of restrictions are likely to be reasonable in what circumstances.
These guidelines should be based on the premise that people should be free to walk on all commons unless there is a good reason, connected with the management of the land, for that freedom to be curtailed. There should also be proper representation of the public interest when local decisions are being taken. Otherwise the practical effect of a Bill might be to make the public less welcome on some commons than they are now".
§ The amendments which we have put before the Committee implement those aspects of access and management which the forum agreed on and which the Countryside Commission supports—at least it did so until that date and so far as I know it still does so. We believe that the need for legislation is urgent and that the recommendations of the forum are the best possible basis for such legislation. The amendments fulfil all of the requirements.
§ Commons are being lost at an alarming rate. Privatisation of water, electricity and parts of the Forestry Commission has contributed to a loss of land to which we have had a right of access. That makes the commons even more precious.
§ Thanks to the defective 1965 Act, up to July 1990 5,238 commons have been enclosed and rights of common and of access have been lost. The amendments would secure rights of access to what is left and still respect the rights of owners and commoners. It would be a start. I beg to move.
§ 7.30 p.m.
§ Lord Middleton
The noble Baroness has made a most interesting speech on what ought or ought not to happen in relation to the commons and the history of the discussions which have taken place about commons. However, the Bill is intended:to amend the law relating to town and country planning; to extend the powers to acquire by agreement land which may be affected by carrying out public works; to amend the law relating to compulsory acquisition of land and to compensation".I wonder whether this Bill is the correct vehicle for very wide-ranging legislation on commons.
§ Baroness Nicol
Perhaps it may be helpful if I try to put the noble Lord's mind at rest on that point. It is not our intention to extend any of the present planning laws. However, we feel that it is perfectly proper to bring the matter forward in the Bill. The reference in Amendment No. 109A to the "use, operation or activity" relates to special terms in planning law to make it clear that no extension of controls is envisaged beyond those which would currently apply if there were no agreement. If it is felt that that is not clear, we could make a consequential amendment that would clarify it.
§ Baroness Castle of Blackburn
I want very briefly but very strongly to support the amendment. It is 620 designed to help the Government—an activity in which I often engage. It helps the Government in this way. The Government made a very solemn election pledge. In their 1987 election manifesto they declared that:Only the Conservatives have a serious costed agenda for further environmental action for another 5 years of government".Under the same general heading they continued:We will … legislate to safeguard common land on the basis of the Common Land Forum".They have not done so yet. They have let three and a half of those precious five years slip by. In putting forward the amendment we are pointing out that there is absolutely no reason for any further delay in implementing that part of the Common Land Forum's recommendations.
As my noble friend, Lady Nicol, pointed out, a great deal of thought has been given by the Common Land Forum to the problem of common land. As she made clear to the Committee, the forum did not just represent the Ramblers' Association or conservation interests. It was deliberately given a very representative membership, which included the Country Landowners' Association, the National Farmers Union and local authorities as well as all the other bodies to which my noble friend referred, so that all the difficulties could be ironed out in discussion. And they were, very intensively, over a period of two years. The result was agreement on a model management scheme and on rights of access.
The Government cannot do better than that, however long and complicated the consultations they may say that they want to have. Those consultations have taken place, in the most representative forum one could have. Those recommendations are embodied in our amendment.
The Government need to be reminded of two points. They have at most only 18 months left of those five years in which they were going to show that they were the only party which had a serious, costed agenda for the extension of environmental safeguards and public rights. They will have to hurry up if they really meant what they said in order to win votes in 1987.
I also want to point out to the Government that if they stray from the model agreement they are straying from a carefully worked out compromise and balance of views. Why should they want to do that? What hidden minority vested interests are trying to make them betray or modify in any way the model agreement that has been reached?
I look forward confidently to the Government thanking us tonight for giving them the opportunity to avoid betraying their election promise. I look forward to hearing them say, "Yes, just as we pledged in 1987 that we would accept proposals on the basis of the Common Land Forum so we accept this amendment wholeheartedly".
§ Lord Roskill
Perhaps I may begin by disclosing an interest. In 1905, before I was born, my parents bought a house on the edge of a large common in north Hampshire. I still live in that house. Since my parents' death 50 years ago I have owned it. The 621 history of that common can be traced back, so I am told, to 1214, the year before Magna Carta. It is an historic common.
Under the 1967 legislation I registered common rights over that common. Thank goodness I did, because, in view of some of the things that have been happening and the unfortunate failure of the Government to take any steps to remedy the chaotic state of the present law on commons, only those rights which are registered seem available to protect the commons in the South of England, of which there are many in north Hampshire and west and central Berkshire, from the activities of those such as developers who seek to acquire manorial rights and then turn those manorial rights—which used to belong in the past to the lord of the manor—to possible private profit for themselves.
It so happens in the case of the common in which I am interested that until very recently the lord of the manor was my noble friend Lord Carnarvon. He disposed of the manorial rights. Indeed, I understand that down to 1925 my father paid two shillings a year by way of copyhold tenure for a small portion of our land. I often wondered which bit of land it was that someone some time back must have stolen off Newtown Common.
However that may be, what is happening now is that people are understandably anxious to get rid of manorial titles. Other people who are less interested in the preservation of the countryside buy up those titles in the hope that in so doing they will obtain rights which they will be able to exploit.
The noble Baroness, Lady Nicol, mentioned the enormous area of common which has been lost. In its judicial capacity your Lordships' House a few months ago decided a case over a common in central Hampshire. I was not a party to that decision and I can say it was right. Happily that decision prevented that bit of common in that part of Hampshire from being exploited for development purposes.
Almost the only way in which the present state of the law can protect the rights of those who want to have access—and there are many commons over which it is extremely doubtful whether as a matter of law the public have any right of access whatever—are the existence of certain registered common rights which were registered under the 1960 legislation. But as the noble Baroness said, that legislation has failed dismally in its purpose. One can only hope that the amendment of the noble Baronesses may—if I may be forgiven the colloquialism—put pins in the Government to do something about this problem.
I must say that I respectfully question whether this amendment has the right form to achieve the intended result. There is much in its detail which is wrong and I venture to suggest that a planning Bill is not perhaps the right place to secure a much needed reform of common. What is needed is a new commons Act. It is to be hoped that such an Act will not come only after another Royal Commission because it took years after the last Royal Commission to put the 1967 legislation 622 on the statute book. However, unless something is done more and more common will be lost to the public.
I notice that the noble Baronesses propose that there should be rights given to casual riders. I am all in favour of those who ride on marked paths over commons, but the casual riders are a menace to those who otherwise enjoy the commons because they cut up the footpaths and destroy the general amenity. But that is a matter of detail. What is important is that urgent steps should be taken.
If one lives on the edge of a common it is impossible not to sympathise with the movers of this amendment in what they seek to do. Whether it is right to try to achieve their aim in that way is another matter and, as I said, I venture to question that. The Committee will be very grateful to the noble Baronesses for having raised the matter within this Bill in order that the present most unsatisfactory state of the law can be explored and remedied as soon as possible.
§ 7.45 p.m.
§ Earl Peel
I agree with my noble friend Lord Middleton. I find it strange, to say the least, that such an amendment should be tacked on to the Bill that the Committee is discussing at the moment. It seems to me quite clear that the complexities of common land and its future legislation are such that they must be dealt with in a separate Bill. As I understand it, the Government made a clear Statement in July this year to the effect that legislation would be forthcoming. To take a piecemeal shot—the part legislation that is being attempted at the moment—is not the right way forward. I go so far as to claim that it does not do justice to those many parties and individuals who have been involved in this prolonged common land discussion. They, above all, deserve the Bill that the Government have proposed. I believe I am right and that the Bill in question is likely to contain at least 100 clauses. That perhaps puts the prospective Bill into its right form and demonstrates that to try to solve these problems in the way suggested by the noble Baronesses is not the right way forward.
Apart from anything else, I am quite convinced —I am well advised—that the amendment is technically incorrect and could lead to all kinds of problems. I do not propose to discuss them now because it would entail a long and protracted debate for which I believe the Committee is not ready. However I make that point because I believe that it would be almost impossible to implement the proposed amendment at the moment.
I agree with everybody that there is undoubtedly a need for legislation and a need to safeguard common land. I am sure that nobody disagrees with that basic principle. There is certainly a need to improve the management structure on many commons, principally those in the South of England. The northern commons are now on the whole effectively and well managed. There is no question but that there are many anomalies deriving from the 1965 Act which need to be sorted out in such a piece of legislation.
I take the opportunity to mention yet again the Moorlands Association, of which I am a member and 623 which I know has been criticised in many quarters for perhaps being responsible for the delays that have occurred. We make no apologies for that because we believe that the measure was not right in the first instance. I make the point that we seek legislation along with everybody else. I agree that there are some differences, in particular on the issue of public access. That is principally where we differ. But we want legislation and urge the Government to bring legislation forward as quickly as possible.
I should like to make only one point on the issue of access. Again, I do not propose to enter into a prolonged debate on this point. The noble Baroness, Lady Nicol, spoke about a framework in which a general right of access could operate on commons. The association differs, and agrees with the Government that each common is different. Each common needs to be able to construct its own framework. Public access may be perfectly acceptable on some commons but it may be extremely detrimental to the management of other commons and their wildlife.
My last point concerns the 1979 bird directive, in which certain protected species were given special status, as the Committee will know. I am quite convinced that uncontrolled access to common would undoubtedly have an adverse effect on the principles behind that 1979 directive. I shall say only that I quite understand why the noble Baronesses have brought forward this amendment. I hope that they will not press it. This is not an appropriate place to bring in such a measure. But I agree that we must press the Government to bring forward proper and comprehensive legislation as soon as they think fit.
§ Lord Gisborough
I should like to support my noble friend Lord Peel. There is no doubt about it; this Planning and Compensation Bill is a totally inappropriate vehicle for the wide-ranging legislation on common land which would have to take place and which would need its own Bill.
There is an enormous difference between the southern commons and the northern commons; and as my noble friend said, even within them there are big differences. The southern commons are often not maintained and do not have to be. On the northern commons a great deal of maintenance is needed. That would fall if they were to lose their value and become open to all.
The North Yorkshire Moors Report was published three or four months ago. It is interesting to note that 84 per cent. of walkers prefer to walk on footpaths. Therefore, we are talking about the needs of only 16 per cent. of walkers. I was also interested to hear it said that people should be allowed to walk on commons, but that they should not be allowed to ride anywhere that they wish. No doubt the riders would say that it is all right to ride anywhere but motorcyclists should not be allowed to go anywhere that they wish. That goes on for ever, with everyone saying that they should be allowed to do as they wish but that others should not.
624 I wish to draw attention to Eston Moor, an upland heather moor near Middlesbrough. It is open to the public and I walk on it occasionally. It is intercrossed by paths. There is no heather, the bracken is taking over and a massive birch scrub is growing everywhere. One might be hit by a motorcyclist or a pellet from an airgun because there is no control. That is what happens when public pressure is put on common land to be open to full access. There is not a single bird on the moor. And the moor is covered in mud.
§ Lord Chorley
As Chairman of the National Trust, I warmly welcome the amendment. I congratulate the noble Baroness, Lady Nicol, on the extremely cogent but moderate way in which she put forward the argument. Predictably it has been said that the subject of common land has no place in this Bill and that it should be dealt with by separate legislation. That may be so but we have had no other legislation. I find encouraging the fact that from all sides of the Chamber there has been a recognition of the need for a degree of urgency for legislation.
The noble Baroness briefly but succinctly outlined the history and experience of the past 30 years, in particular of the past five years. It all points to the dangers and damage that has been done by the delay and fickleness of government. The Common Land Forum was remarkable in its achievement. Many different parties, including the National Trust, were brought together and were able to agree. The recommendation was welcomed by the Government and was contained in the 1987 election manifesto. In 1990 there was a retreat on crucial points. Members of the National Trust wrote to the Minister requesting clarification. His reply dated 20th September 1990 stated:I am unable at present to comment on the form and content of such legislation or to give any commitment about timing".That kind of reply has engendered dissatisfaction on all sides of the Committee. In the light of that retreat, we must take this opportunity to move forward because we cannot wait. The amendment may not be perfect but it fairly reflects the Common Land Forum Report. I hold certain reservations about the amendment but I shall not go into them now because they are minor and the hour is getting on.
Since 1987 we in the National Trust have tried to follow the precepts set out in the Common Land Forum Report. We have made a start by setting up management associations and schemes on the commons owned by the Trust. However, in the main we must rely on voluntary agreements. We need powers to set up associations and to secure agreements that can be enforced. That is why we need legislation. We could promote our own legislation but surely this is a national issue. The right and only proper way forward is through a Government Bill.
§ Lord Moran
I intend to speak briefly because all that I intended to say was said so eloquently by my noble and learned friend Lord Roskill. I agree entirely with his remarks. I am sure that the Government will not accept the amendment despite the eloquence and persuasiveness with which it was moved by the noble Baroness, Lady Nicol. However, I hope that it will 625 smoke out the Government because, unlike the noble Earl, Lord Peel, I read the Government's statement as not indicating their intention about legislation. In particular, the deregistration of so many commons, which is taking place at an alarming rate, is a haemorrhage which must be staunched most urgently. I agree that the subject of access is difficult and complicated. I sympathise with the views put forward by the noble Lord, Lord Gisborough, and the noble Earl, Lord Peel. However, such views can be dealt with in legislation. I hope that tonight we shall hear what the Government intend to do and that it will be done soon.
§ Baroness Blatch
Many of the provisions in the new schedule are based on the recommendations of the Common Land Forum. The noble Baroness, Lady Castle of Blackburn, was right to remind us that in January 1987 the Government announced that they accepted the case for legislation based broadly on the forum's report and intended to introduce legislation at a suitable opportunity when parliamentary time permitted.
Following an extensive consultation exercise, my colleague the Minister of State for the Environment and Countryside, Mr. Trippier, in a further statement issued on 26th July last, indicated our policy concerning the safeguarding of common land and the arrangements needed for better management. It stated that improvements to public access of common land could best be achieved by local agreement wherever possible. That could result in various access arrangements varying from general access through a range of management and access solutions to reflect the individual character of commons up to and including improved access through extension of the public rights of way system. Only where agreement could not be reached locally would it be necessary for a decision to be taken by the Secretary of State. The statement also indicated that we should be embarking on detailed discussions to work out the proposals.
Since then officials from my department have had such discussions with a wide range of bodies. They include other government departments, the Countryside Commission, the Nature Conservancy Council, local authority representatives, land owning and farming organisations, voluntary nature conservation group bodies and a number of the access groups including the CPRE, the Open Space Society and the Ramblers Association. The work done by my department since last July on the proposed management and access arrangements, and our discussions with the various interests, have confirmed our view that the arrangements outlined in the July statement would be appropriate and workable.
However, the major national access bodies have expressed opposition to our access proposals. They have pressed us to ensure that, in particular, comprehensive legislation should include a general right of access to all commons. These interests have urged on the Government not to proceed with comprehensive legislation on the basis of the arrangements proposed in the July statement and have recommended that a Bill should be introduced 626 instead. Its main purpose should be to safeguard the status of properly registered common land while enabling incorrectly registered land to be deregistered.
As I pointed out to the noble Baroness, Lady Nicol, when she raised the subject of common land legislation in the debate on the humble Address last November, the Government are committed to improving public access to the countryside. However, as regards common land, that can be achieved only in the context of a better management which will take full account of the proper interests of owners and other important factors, including the nature conservation interests and the European Community birds directive. I said then that we were reviewing the situation in the light of reactions received to the statement of 26th July. That is still our position.
The sponsors of this new clause and schedule have shown considerable ingenuity in endeavouring to link management of and public access to common land with enforcement, development control and other provisions contained in this Bill. However, the provisions in these amendments go a long way beyond the aims of the Bill and conflict with the policy for management and access to common land set out in the 26th July statement.
The noble Baroness, Lady Castle of Blackburn, said that there was unanimity on the forum's recommendations. There are clearly reservations by a number of bodies as regards some of those recommendations. The Moorland Association is not the only body to express opposition. Some of the nature conservation bodies, such as the Royal Society for Nature Conservancy, have said that they are not content with some of the recommendations of the Common Land Forum.
The noble and learned Lord, Lord Roskill, was anxious about a number of points and supported the amendment. There appears to be little real evidence available on loss of common land. In the course of this debate there has been some exaggeration and it is important to obtain real evidence for our debates. However, the noble and learned Lord referred to the judgment in this House by the Law Lords about a site in Hampshire. The decision in that case has stopped up a potential loophole by means of which common land might have been deregistered. It appears that there is now only a trickle of deregistrations taking place.
In the 26th July statement my right honourable friend Mr. Trippier said:I am confident that in the overwhelming majority of commons satisfactory arrangements for proper management and improved public access can be achieved through local agreement. Such agreements will, however, need to take full account of special circumstances … I want to restate the Government's commitment to improved public access to the countryside. Access to common land is an important element of this but improvements may best be achieved by local agreement. The result could vary from general access, through a range of management solutions to reflect the individual character of commons up to and including improved access through the extension of the public right of way system".That is a positive statement which aims to achieve many of the objectives of the supporters of these amendments.
627 It must be recognised that there is tension regarding management of land and access to it. During the course of this debate, that tension has been much simplified. It has been said that this Bill is not the vehicle by which the issue of common land and access to it should be addressed. It deals principally with planning, enforcement and compensation and does not deal with common land.
It has been mentioned also that the amendment is flawed. Given the real intentions of the Government to address the issue of access to common land and the promise of a Bill to address protection of common land, I hope that this amendment will not be pressed.
§ Baroness Nicol
I am disappointed with that answer although I expected it. The amendments were accepted as appropriate to the Bill and I have been advised since that time that they are acceptable in terms of the Bill. Therefore, I do not accept that part of the Government's argument.
The problem is that the Government did not make a clear statement that they would legislate as the noble Earl, Lord Peel, seemed to think they had. That is the nub of the problem. Every time this subject is raised we are given vague promises about forthcoming legislation but we are never told when it will come forward. The Department of the Environment has been working on this matter since 1975, long before the forum. I cannot believe that in that time a workable solution has not been reached. We are now told that we must continue to wait.
The statement of 26th July to which the noble Baroness referred demonstrated a change of emphasis, as I said in my opening remarks. I do not believe that it is acceptable in those terms. The management and local interests about which the noble Baroness is anxious would be catered for by the management bodies set up for each common with the brief to look after local interests and to meet local needs.
The noble Lord, Lord Gisborough, made the case for the right to roam when he pointed out that very few people wish to exercise that right. Most people are quite happy to walk on paths but surely the small number of people who feel the need to roam should be allowed to do so. The amendments before us give every opportunity for restrictions on the right to roam at times when it is inconvenient for the owners or managers of the land.
§ Lord Gisborough
I should like to give an example to the noble Baroness of one person who likes to roam. He is a hawker. He likes to roam wherever he can in order to spot the nests of the kestrel so that he can go back later to steal the birds. I do not know how he does that. I could continue with many examples of people who would like the right to roam in order to act in such a way.
§ Baroness Nicol
I believe that the noble Lord's example is rather unusual. I do not believe that there are very many people behaving in such a fashion.
However, I do not wish to prolong the debate. It is quite obvious that we shall make no progress on this amendment. I should have been happier if the noble Baroness had given the Committee the timetable 628 which is in the Government's mind. It seems to me that, although she may say that this Bill is not the right place for this amendment, I should test the feeling of the Committee.
§ 8.6 p.m.
§ On Question, Whether the said amendment (No. 109A) shall be agreed to?
§ Their Lordships divided: Contents, 33; Not-Contents, 82.
|Division No. 2|
|Airedale, L.||Jeger, B.|
|Birk, B.||Lockwood, B.|
|Castle of Blackburn, B.||McIntosh of Haringey, L.|
|Chorley, L.||McNair, L.|
|Cledwyn of Penrhos, L.||Masham of Ilton, B.|
|Clinton-Davis, L.||Mason of Barnsley, L.|
|Craigavon, V.||Moran, L.|
|David, B.||Nicol, B.|
|Dean of Beswick, L.||Parry, L.|
|Dormand of Easington, L.||Robson of Kiddington, B.|
|Galpern, L.||Roskill, L.|
|Graham of Edmonton, L. [Teller.]||Ross of Newport, L.|
|Stoddart of Swindon, L.|
|Grey, E.||Underhill, L.|
|Hacking, L.||Walpole, L.|
|Hollis of Heigham, B. [Teller.]||Walston, L.|
|Howie of Troon, L.||Winstanley, L.|
|Allenby of Megiddo, V.||Kimball, L.|
|Arran, E.||Long, V.|
|Astor, V.||Lyell, L.|
|Blatch, B.||Lytton, E.|
|Blyth, L.||McColl of Dulwich, L.|
|Boardman, L.||Mackay of Clashfern, L.|
|Borthwick, L.||Margadale, L.|
|Boyd-Carpenter, L.||Merrivale, L.|
|Brabazon of Tara, L.||Mersey, V.|
|Butterworth, L.||Middleton, L.|
|Carnegy of Lour, B.||Monk Bretton, L.|
|Carnock, L.||Montagu of Beaulieu, L.|
|Cavendish of Furness, L.||Mottistone, L.|
|Clinton, L.||Mountevans, L.|
|Coleraine, L.||Norrie, L.|
|Craigmyle, L.||Orr-Ewing, L.|
|Darcy (de Knayth), B.||Palmer, L.|
|Davidson, V. [Teller.]||Park of Monmouth, B.|
|Denham, L. [Teller.]||Pearson of Rannoch, L.|
|Dilhorne, V.||Peel, E.|
|Downshire, M.||Plumb, L.|
|Eccles of Moulton, B.||Rankeillour, L.|
|Elliot of Harwood, B.||Reay, L.|
|Elliott of Morpeth, L.||Renton, L.|
|Faithfull, B.||Renwick, L.|
|Fortescue, E.||Saltoun of Abernethy, Ly.|
|Fraser of Carmyllie, L.||Selsdon, L.|
|Gainsborough, E.||Shuttleworth, L.|
|Gardner of Parkes, B.||Soulsby of Swaffham Prior, L.|
|Gisborough, L.||Stanley of Alderley, L.|
|Glenarthur, L.||Stockton, E.|
|Grimston of Westbury, L.||Stodart of Leaston, L.|
|Grimthorpe, L.||Strathclyde, L.|
|Harmar-Nicholls, L.||Strathmore and Kinghorne, E.|
|Harvington, L.||Thomas of Gwydir, L.|
|Henley, L.||Trumpington, B.|
|Hesketh, L.||Ullswater, V.|
|Hives, L.||Vaux of Harrowden, L.|
|Hooper, B.||Vestey, L.|
|Joseph, L.||Wade of Chorlton, L.|
|Kenilworth, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.629
I beg to move that the House be now resumed. In moving this Motion, I suggest that the Committee stage on the Bill be resumed at 14 minutes past 9 o'clock.
Moved accordingly, and, on Question, Motion agreed to.