AS AN AMENDMENT TO COMMONS AMENDMENT No. 37 (Hansard, 1 July 1991)

§ Lord McIntosh of Haringey
My Lords, I beg to move Amendment No. 37A and shall speak also to Amendment No. 37B. In speaking to an earlier amendment the Minister said that we are intent on the same purpose and are moving in the same direction to improve controls of demolition. That is right, but the trouble is that not all are willing to travel the same distance down that path. Amendment No. 37 is welcome because it is an improvement on the Bill which left this House. However, subsection (1) of that amendment is only a recognition of the law as it was laid down in the case of Cambridge City Council v. Secretary of State for the Environment and Milton Park Investment Ltd. It goes no further than that. We welcome the fact that "demolition" has been declared by the courts and now more explicitly by Parliament to be a building operation. That is right, but we begin to worry when we look at subsection (2) which provides that "demolition" is subject to a direction given by the Secretary of State. The Minister has made clear that it is the intention of the Secretary of State to interpret "demolition" under planning control as relating only to dwellings. Non-dwelling buildings will not be covered by the new definition.
I suggest that at the very least that departs from what is made explicit in subsection (1) which deals with the demolition of buildings. The subsection does not refer to the demolition of dwellings but to the demolition of all types of buildings. To make a written 784 commitment in subsection (1) of the amendment and then immediately in subsection (2) to withdraw that by fiat of the Secretary of State does not appear to make a great deal of progress.
The Minister then went even further by saying that subject to consultation there will be amendments to the general development order that will make it clear that virtually all demolition will be included as permitted development. In other words, almost all the protection that is provided in subsection (1) of Amendment No. 37 will be removed by the general development order. It is not good enough for the Minister to say that there is protection under Article 4. There has always been protection under Article 4 but the problem is that the local planning authority is required to step in when demolition is threatened and impose an Article 4 order before demolition takes place. The evidence that was produced time and again during the passage of the Bill through this House showed that unscrupulous developers simply arrive in the middle of the night and knock down the building. That is the end of the matter because then there is no chance to impose an Article 4 order.
The Minister qualified the reply by saying that under certain circumstances—and I should like to know what circumstances—the protection extends to buildings or small areas. What is a small area? I suspect that a large number of local authorities such as Cambridge City Council will seek to use the loophole which the Minister is now providing. However, they are not being given clear guidance about the extent of the additional protection.
We are on the same side and are trying to achieve the same objectives. I am sorry to say that the clause as drafted, particularly in the light of the Minister's comments, makes it clear that the additional protection to be provided by the clause will be minimal. I regret that having listened to the arguments and having paid lip-service to them in Amendment No. 37 the Government are not prepared to make them effective.

§ Lord Renton
My Lords, I am sorry to detain your Lordships further but the point that I wish to make arises in a most extraordinary way. Today when I was driving to the House in my car I heard on the lunchtime news a report of the most appalling act of vandalism against listed buildings which is becoming more prevalent; namely, painting them in garish colours. It was said that such acts applied even to medieval buildings.
One's hopes are raised by the amendment. I am sorry that I have not had the opportunity of speaking to my noble friend about the matter. Subsection (1) of Amendment No. 37 includes in its definition of "building operations": (c) structural alterations of or additions to buildings; and (d) other operations normally undertaken by a person carrying on business as a builder". However, it is the builders who are carrying out the painting work. The new clause is a welcome improvement, so far as I can understand it, because it 785 contains many references to previous legislation. I hope that the other operations will refer to vandalism by painting. Having said that, I do not know whether it is even reasonable that I should ask my noble friend to comment. However, if she has a comment and says that she is sympathetic, that would be good for the record.

§ Baroness Hamwee
My Lords, I sympathise with the la it comment about listed buildings. Anything which we can do to help local authorities and English Heritage to protect them will be welcome. However, I rise to speak in support of Amendments Nos. 37A and 37B.
I hope that the legislation will give teeth to what the public clearly wants. I say that because I have sat on many a development control committee where members of the public have expressed anguish at the prospect of buildings being pulled down and the local planning authority having no means to prevent it. I am referring to buildings outside conservation areas which are not listed but which, nevertheless, are valued by the local community. Article 4 directions exist, but they are very difficult and time consuming and one requires a lot of resources.

§ Baroness Blatch
My Lords, the point raised by my noble friend on painting is outside the scope of these amendments. However, I note what he says and I shall write to him specifically about that.
As regards anxieties about the amendments, I shall argue why I believe the House should not accept Amendments Nos. 37A and 37B. I know there has been concern on the part of local authorities but, when the noble Baroness, Lady Hamwee, considers not only the new impetus given to the use of Article 4 directions but their possible extended use, because they can now apply to local authority areas, I hope her faith will be restored.
Perhaps I may take your Lordships back to our first debate on this matter early in the year. In that debate I said that in the 175 responses to the consultation paper on the subject there was little evidence that the demolition of buildings was a general and widespread problem. Those problems that did arise were limited to dwelling houses. In the debates both in this House and in another place no further evidence has come forward to cast doubt upon that view. Indeed I believe it is generally accepted that the problem of speculative demolition is small-scale and limited, but when it happens I do not underestimate how distressing it can be.
However, where it occurs, the consequences can in some circumstances be very serious for neighbours and local amenity as the noble Baroness, Lady Hamwee, pointed out. For that reason, the Government decided to introduce selective controls—that is, in order to tackle a problem that arose in particular cases. Ensuring that the controls are selective requires the direction-making power to limit control to particular types of building and the use of the general development order so that authorities are 786 not swamped with minor applications. The consequences of these amendments would be a sledgehammer to crack a nut—a degree of control quite out of line with practice in other areas of development.
Perhaps I may take the argument forward. There are already adequate controls on demolition in a number of circumstances. The Building Act 1984 provides controls over the demolition of delapidated or unsafe buildings. Special consent by the local planning authority is already required for about half a million listed buildings in the country and for all buildings in over 7,000 conservation areas that are larger than the size of a typical garage. The Health and Safety at Work Act 1974 provides controls to protect the health and safety of employees and the public in the case of demolition. The Control of Asbestos at Work Regulations 1987, the Asbestos (Licensing) Regulations 1983 and the Environmental Protection Act 1990 also provide further controls that protect the health of employees and the public, as well as the environment, in the circumstances of particular kinds of demolition.
A further consequence of these amendments, therefore, would be the addition of unnecessary and duplicate controls in all these circumstances. For example, any demolition of a building in a conservation area would need not only conservation area consent for being in a conservation area but also planning consent for being a demolition. Moreover, while conservation area consent would not be necessary to knock down a typical garage in a conservation area, planning consent would be necessary. That is just not logical, and your Lordships will not want to be responsible for introducing such an anomaly into planning control. In such cases we are using not just one sledgehammer to crack a nut; we are using two.
Particular concern arises from the amendment proposing that no demolition could be permitted through the general development order. The purpose of the GDO is to grant permission for smaller or uncontroversial development in order not to clog up the planning system. The GDO works well; it has been operating since the beginning of the planning system. It is kept under review and any amendments to it take place only after public consultation and parliamentary scrutiny. Is it right that the GDO should allow a typical householder to build a limited extension to his house without a planning application, whatever its impact on local amenity, but not to knock it down; or to build a garage in most circumstances, or a greenhouse or kennels for the dog, but prevent him from knocking any of them down?
That would be the effect of this amendment. The typical householder would have to apply to the local planning authority for planning permission to knock down his old garage at the bottom of the garden. Just imagine the absolutely enormous extra demands on the local planning authority in terms of staff, time and money; imagine the resulting delays in deciding genuine applications for planning permission for development. Surely, to have such little faith in the general development order, which has served us so 787 well for so long, is to bring the whole system into disrepute. Neither planning authorities nor householders want it. They have not asked for it; we should not allow it to happen.
Contrary to the assertions by the noble Lord, Lord McIntosh, there has not always been the opportunity to use Article 4 procedures. Until now demolition has not been within the definition of development. Therefore, until now there have been no permitted development rights to withdraw. We need to look at each case on its merits.
In answer to my noble friend Lord Renton, I understand that there is already judicial authority to the effect that painting a listed building requires listed building consent. I understand that the case involves the Royal Borough of Windsor and Maidenhead. That is not appropriate for this Bill but, as I promised, I shall write to my noble friend.

§ Lord Renton
My Lords, I thank my noble friend for that clarification. I just add that the particular complaint about which I heard related to some listed buildings at Penrith.

§ Lord McIntosh of Haringey
My Lords, the Minister bases her response largely upon the argument which she used as the Bill was proceeding through the House earlier this year; namely, that there has been no widespread demand for improved control of demolition. She confirmed me in my view that the Government are simply acceding to the judicial interpretation of the law in the Milton Park case. They are determined to go no further than that. They have no intention whatever of extending controls over demolition in any significant way.
As to whether there is a demand for greater controls, only time will tell. The important point about the legislation is that it includes demolition as a building operation and, therefore, without a change in legislation the possibility arises in future to strengthen the provisions. Regulations made by this Secretary of State which fail to advance the prohibition of demolition can be undone by a future Secretary of State.
I remind the House that demolition is not merely an aesthetic matter. Developers quite deliberately demolish buildings, whether dwellings or other buildings, not because of any need to demolish them because they are in a bad condition but in order to force the hand of a planning authority to make it easier to obtain permission for something which would otherwise be unacceptable.
The nature of the replacement building, which is dealt with in Amendments Nos. 12 and 14 to 16, is the significant consideration. However, on the basis that the law has now been changed in such a way that future action can be taken without further legislation, I do not believe that it is appropriate to divide the House. I beg leave to withdraw the amendment.