HL Deb 20 April 1961 vol 230 cc740-4WA
LORD SILKIN

asked Her Majesty's Government:

Whether the Lord Chancellor has now had an opportunity of considering the report he has received from the Council on Tribunals about the planning appeal relating to land in the Saffron Walden area.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

I have made a very full examination of the procedure followed by my right honourable friend the Minister of Housing and Local Government on this appeal. The complaint is that in deciding to allow the appeal by Messrs. Heath and Son, Limited, for permission to win and work chalk on their land, the Minister relied on advice which he obtained, after the inspector had reported, from the Minister of Agriculture without affording to those who had taken part in the inquiry an opportunity of commenting on this advice. It is further complained that the proposal to win and work the chalk was known to have the support of the Ministry of Agriculture, but that that Department was not represented at the inquiry.

I think it will be helpful if I first set out what happened on the appeal, and then explain what is the procedure which the Government decided to adopt in cases of this kind, following the Report of the Committee on Administrative Tribunals.

To deal first with the position of the Minister of Agriculture, he is, among other things, concerned with the production of chalk from the standpoint of the demand for agricultural chalk and the eligibility of particular proposals for winning chalk for agricultural lime subsidy. It was solely from this point of view that the officer of that Department concerned with lime production informed Messrs. Heath that their proposals would be regarded as acceptable; he was not concerned with the application for planning permission. Indeed, I understand that when he was first consulted on the matter he was not aware that the existing planning permission was shortly due to expire and that fresh permission would be needed. Officers of the Agricultural Land Service of the Ministry of Agriculture advise planning authorities on applications involving loss of agricultural land, and it is they who are concerned with planning applications which affect the use of land. Although the local officer of this Service was made aware of Messrs. Heath's application, and attended a preliminary site meeting with the agricultural lime officer, the planning authority in fact reached their decision without waiting for his comments; and as no loss of agricultural land was in any event involved he never made any.

There was thus no question of the attendance of any officer of the Ministry of Agriculture at the appeal inquiry. The Ministry's concern with Messrs. Heath's proposals from the standpoint of agricultural lime production and lime subsidy may have given rise to some misconception as to the part it played in connection with the planning application. These two things are quite separate, but this may not have been understood locally. It may have been thought locally that the Ministry were committed to supporting the applicants in their appeal; but there was in fact no justification for any such belief. It is the standing practice of the Ministry where they are concerned with the production aspect of any proposal to leave the developers to make out their own case for planning permission.

Coming now to the action of the Minister of Housing and Local Government, it was clear to my right honourable friend, on receiving his inspector's report, that the inquiry had raised two main issues. One was the need for the production of chalk in the area; the other was the damage which the operations might cause to neighbouring interests. But his conclusion, after considering the evidence, was that the case really turned on the second point—viz., whether the winning and working of chalk on the particular site would cause an unacceptable degree of damage. On this the inspector had reported (paragraph 14) that the appellants proposed to use the "kibbling" methods (which means a process whereby large lumps of soft minerals are crushed and torn to produce small lumps) to meet the fears which had been expressed that chalk dust would be blown about, but said, nevertheless (paragraph 48), that he was not satisfied that chalk "ground from a maximum of 1 inch diameter down to powder size" would not be blown out of the pit during windy weather. He therefore recommended that the appeal be dismissed.

My right honourable friend concluded that on this point he must be advised by those with expert knowledge of the effects of chalk working on neighbouring land; and he therefore consulted the experts in his own Department (the alkali inspectors) on the point. They, having considered the evidence at the inquiry, advised him that there was no real likelihood of dust emission in this case on such a scale as to cause trouble; and in giving that advice they assumed that the "kibbling" method would be used, as the inspector had been assured that it would be. But the Minister also thought it right to consult the Minister of Agriculture, partly because of his concern with the production of chalk for agricultural purposes, but mainly because it had been argued at the inquiry on behalf of neighbouring owners that there would be dust which might be detrimental to crops and animals, on which point of course the expert knowledge is to be found in the Ministry of Agriculture. Their experts confirmed the view already expressed by those in the Ministry of Housing. They said that in their opinion there was unlikely to be dust nuisance from the proposed working, even in the driest weather, and that even if some dust were dispersed beyond the site the quantity would not be sufficiently large to have any deleterious effects on crops or livestock. The Minister of Agriculture also expressed agreement with the evidence produced by the appellants at the inquiry about production need.

The Minister of Housing and Local Government therefore decided to allow the appeal; but in doing so he made it a condition (in addition to others designed to protect neighbouring interests) that no crushing and no processing of chalk other than kibbling should take place on the site.

I come now to the Government's view of the proper procedure in cases of this kind. Following the Report of the Franks Committee the Government announced that they were able to accept wholly or substantially the great majority of the detailed recommendations [OFFICIAL REPORT, Commons, October 31, 1957; col. 403]. So far as the Ministry of Housing was concerned this was followed up by a circular (No. 9/58) setting out the changes to be adopted in their procedures to carry out the decision of the Government, and the material paragraph for the present purpose was paragraph 20 which read: If new factual evidence is brought to the Minister's notice from any source after an inquiry, and in his view, it may be a material factor in the decision, he will give the parties an opportunity of commenting on it. If the Minister considers it necessary, the inquiry will be reopened.

I think that there has been some misunderstanding in this case about the meaning to be attached to the words "new factual evidence"; and that may be partly due to the fait that the Franks Committee, in their recommendation, said that "factual evidence" should include "expert evidence", and in paragraph 350 of their Report sought to draw a distinction between "expert opinion on matters of fact" which ought in their opinion to be disclosed as "factual evidence" and "expert assistance in the evaluation of technical evidence given at the inquiry" which they agreed should not be disclosed.

The Government were unable to accept this distinction. They have always been clear that new factual evidence which ought to be disclosed could not include technical or other advice given by Government officials on the issues raised at the inquiry and on the weight to be attached to evidence submitted there. Ministers must be free to seek such advice, and cannot be obliged to disclose the advice tendered to them by officials before they come to a decision. The Minister must inform himself, on the best advice available to him, on the right conclusions to be drawn from the argument, and those interested in the application cannot expect to be brought into this process; always provided that if any new factual evidence in the sense I have indicated—or any new issue which may affect the decision—is brought to his notice that must be disclosed for comment before he reaches a conclusion.

In this connection I must make it clear that the Government do not consider that there is any distinction to be drawn between experts who may happen to be in the Department of the deciding Minister and experts in another Department. The way in which the work of Government happens to be organised is neither here nor there for this purpose. In the case under consideration no new factual evidence, no new issue, was brought to the Minister's notice. He simply received confirmation of the appellants' argument that chalk from the appeal site would make a useful contribution to the area, and advice on the argument which had taken place at the inquiry about the damage which the chalk might be expected to cause; and his advice was that on this point the inspector's conclusion could not be supported, given the conditions which were to be imposed.

My conclusion is that in this case the Minister of Housing and Local Government acted strictly in accordance with the procedure approved by the Government following the Report of the Franks Committee. I also think, following my review of it in this case, that the procedure is a proper one, given the nature of the Minister's jurisdiction.

The case has also raised the question of the rights of so-called third parties who give evidence at planning appeal inquiries. It is the practice of the Ministry of Housing and Local Government to allow anybody to express views at inquiries, whatever his interest. His interest may, indeed, be simply that of a member of the public. The expression "third parties" has therefore in this context a very wide meaning; and as my right honourable friend has already said in another place, it does not seem practicable to give all such persons legal rights in relation to the decisions which follow inquiries. I would add to that that it does not seem to me practicable to distinguish, as a matter of law, between third parties with a close though no legal interest in the usual meaning of that term, and those with a general or remote interest. The question of "third parties" is, however, to be discussed with the Council on Tribunals in connection with the rules of procedure to be adopted for the conduct of inquiries, and this aspect of the case can be considered further then.

House adjourned at a quarter past six o'clock.