§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Studholme.]
§ 4.3 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
The number of appeals under the Town and Country Planning Act to the inspectors appointed by the Minister is growing. There were about 4,000 of them three years ago, and now they have almost doubled in number. Not only is their number growing, but the number of people attending them is growing, so that more and more people are being brought into the process of town and country planning. That is in itself a good thing, but of course it also means that people are becoming somewhat critical of some of the details of the procedure of these appeals.
The problem is this. These appeals are held in the form of a legal trial. I know that there are many theoretical objections to their being so described, and some of them, although theoretical, are perfectly valid in that the process of the hearing of an objection to a refusal to be allowed to develop is only one of the means by which the Minister informs his mind of the pros and cons of any case. Nevertheless, the public does not appreciate that and I do not think it ever will, and, therefore, since this procedure which looks like a trial has been adopted, I think we must make it as much like a trial, at least in appearance, as possible.
It may be that we ought never to have started this procedure and that we ought to have had a more inquisitorial procedure, rather in the way in which the Monopolies Commission works, which 1617 means that the inspector would have to make all the running himself, and ask the questions, and that there should not be a contest between the two parties, as is at present the case. It is now much too late to do that, however, and I do not think that anybody would wish to alter the fundamental procedure. Therefore, I suggest that we must see whether what the public takes to be a trial—and the public has a very good instinct as to what is or is not a fair trial—is working with that appearance of justice which we all demand.
I am going to make one or two suggestions. They are not original. They are largely the suggestions of Mr. Desmond Heap in his presidential address to the Town Planning Institute, but from my own experience of these proceedings I think that they are all thoroughly justified. I also say from my experience, and I am sure that it will be echoed from the other side of the House, that the inspectors who carry out the appeals do a really magnificent job. It is remarkable how a body of men not primarily trained and indeed often not trained at all as lawyers conduct these proceedings in a most judicial way.
The first of these suggestions is that the burden of proof is not seen to be on the right shoulders. It is for the objector, that is the planning authority, to discharge the onus of proof. The presumption should be that anybody who wants to develop should be allowed to do so, unless good cause is shown against it. What happens very often is that all the applicant receives when his first application is refused is simply a statement saying that the application to develop is rejected because it is not in conformity with good town and country planning principles or does not conform with the county plan or something of that sort.
That does not tell the applicant enough. He ought to be told more exactly what is the planning authority's ease. Even more, I think that the planning authority ought to open the proceedings, because the applicant does not really know the case which he has to meet until the planning authority has put that case. I am sure that hon. Members opposite have had the experience which I have had, that one goes to one of these hearings, if one is appearing for the applicant, and one does not really know what the authority's case 1618 will be. All one gets is the intimation on the document rejecting the application.
If, as I believe is right, the planning authority should begin, the person who wishes to develop would know before he opened his case exactly what objection he had to meet. I believe that the public would prefer it. I do not go so far as to say that it is always to the advantage of the developer, because by that process he loses the last word. Nevertheless, I think that that is something which should be sacrificed for the sake of the right legal position, which is that the man who has to discharge the onus of proof should be the man who begins.
In addition, I think that before the hearing begins planning authorities should be encouraged to supply the developers, so far as possible, with copies of plans and of any written statements that are to be put in at the time of the hearing. I dislike written statements very much. It is much better to have oral statements, but if written statements are to be put in, there is no reason why they should not be supplied to the developer before the hearing begins. He can then see what the case is and, if necessary, he can consult experts himself and ask their opinion about it. At present these statements are put in after his case is closed and he cannot get evidence from his experts or witnesses upon them. So at present there is a considerable element of surprise which frequently works against the developer.
The second thing which might be done to improve matters is that both the developer and the public should feel that everything likely to persuade the mind of the Minister should be open and aboveboard at the hearing. That raises the problem of other Government Departments and their reports to the Minister. At present that step takes place either before or after the hearing but not at it, and so frequently the developer, and certainly the public, does not know what other Government Departments, such as the Ministry of Agriculture, Fisheries and Food or the Ministry of Education, are saying about his case, and he cannot cross-examine the people from those Departments who are making whatever case they wish to be made.
There appears to be a mystical objection to making a change on the ground that the representative of one Government Department should not appear 1619 before the representative of another Government Department, but that again seems to me to be a purely theoretical objection. Frequently in a court of law the Crown is on both sides of the record, and I do not see why it should not occur in the much less formal and much less theoretical atmosphere of an inquiry. And there is no reason, to my mind, because of the natural objection of Government servants to giving evidence at all, why they should not have their views aired at the hearing and be subject to cross-examination. I think the public would feel that that would be a much less hugger-mugger way of doing things, and that everything was being exposed to the light of day.
The third point concerns the question of the publication of the report of the inspector. I can see no objection to that. It is done in the cases of the inspectors in the hearing of Ministry of Education appeals, there is no great hardship there and no harm is done that anyone has discovered. Why should the same not be done in the case of appeals to the Minister of Housing and Local Government? Again, it would give a much better impression to the public and to the developer.
The general experience is that people do not so much mind their case, or their neighbour's case, being rejected if they feel that the matter has been thrashed out in the light of day, whereas all sorts of false rumours often get about as to backstairs and back-stage influence if all these matters are not brought out into the open. Accordingly, I do not believe there is any valid objection to that procedure, but if there is, it can be weighed against the fact that the public often thinks that under the present system things are hushed up. That is a far greater objection than that of perhaps disclosing sometimes something that is inconvenient to the Government.
I promised that I would be brief because I know that some hon. Gentlemen opposite wish to speak, but I hope that my hon. Friend the Parliamentary Secretary will not say that all this is very much in mind and that it will no doubt be considered by the Franks Committee on the question of administrative taw and machinery which the Govern- 1620 ment have set up recently. That Committee will range far wider than this quite narrow ambit. It will range over the whole of the Government machine. It is bound to take a long time to report, and it is necessary, in my submission, that these few, detailed and easy reforms should be considered and put into practice independently of the Franks' Committee.
It is said that it is often a convenience for the Government to have a Committee sitting considering a subject so as to give an opportunity for delay. I am sure my hon. Friend is not guilty of that. It would not be right to delay these small, simple reforms, to which no objection can be taken by any member of the Franks Committee, which are by no means new, which have been canvassed very freely ever since this procedure under the Town and Country Planning Acts was erected, and which are supported by majority opinion among not only lawyers but those who are, in a sense, on the other side of the fence.
I hope that no theoretical objections will be allowed to stand in the way of these reforms because those who, like myself, believe very strongly that town and country planning has come to stay—and a good thing too—consider that it is vital to carry the population with us in the matter, and we shall not do that as long as people think there is some hanky-panky about the hearings and that the dice are loaded secretly and strongly against the would-be developer.
§ 4.16 p.m.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I am glad to have the opportunity to intervene in the debate for a very short time. I agree with what has been said by the hon. Member for Darwen (Mr. Fletcher-Cooke). I wish to draw to the attention of the Minister one or two additional matters.
First, I believe that the reason why so many difficulties arise in procedure in town and country planning appeals often lies in the imprecise form of the grounds of refusal prepared by local planning authorities. If the grounds of refusal are vague and imprecise, this casts a shadow upon the whole conduct of the hearing, takes up a great deal of time, and involves difficulties in the way of evidence and so on.
1621 I take the view that the Minister must be regarded as having some responsibility for this, because to the extent to which the Minister's decisions upon planning appeals are vague and imprecise, local planning authorities may be thought to be tempted to be vague and imprecise themselves. I acknowledge that the letters conveying the decisions of the Minister in town and country planning matters in recent years have steadily improved. They now go to the length of setting out very fairly the evidence that has been given upon either side. But when we come to the all-important matter of the reasons which have led the Minister to come to the decision at which he has arrived, these are often vague and imprecise.
If these decisions could be made clearer and more distinct, I believe that an improvement would be found in the statements of the grounds of refusal by local planning authorities, and as a direct consequence of that, greater clarity would also be found in the statements of grounds of appeal. It should then be possible for evidence and argument at these inquiries to be confined, with special exceptions, much more easily than they are at present to the matters set out in the grounds of refusal and the grounds of appeal.
I suggest that the Minister should, as he has power to do, make a point of insisting that an appeal shall not be heard until the local planning authority has adequately and sufficiently clearly set out its grounds for refusal. This need not result in greater delay than occurs at present. I believe that, if that were done, many of the difficulties would disappear.
There is one other point I desire to mention. We are told that the inspectors receive instructions from the Minister about the taking of evidence and matters related thereto. When I asked a Question in the House about that some time ago and asked that the appellant should be given copies of the instructions sent to inspectors by the Minister in this regard, the Answer from the Minister—Vol. 537, c. 137—was that it would not be helpful to appellants to see the instructions but that a copy would be deposited in the Library. I am very glad to note that the President of the Town Planning Institute, whose address has been mentioned, calls attention in that address to that Question and Answer and says: 1622Is it really necessary for the Minister to indulge in this gratuitous obscurantism? Rules as to the conduct of public inquiries should surely be public rules whether they tend to be helpful or obstructive to appellants.I hope that attention will be given to that. The point is that if the guidance which the inspector has received as to evidence is known to all concerned at the inquiry it is easier for those appearing for appellants to recognise when it is legitimate to raise objections to the admissibility of evidence, if objections there are.
I conclude by saying that I particularly agreed with what the hon. Member for Darwen had to say about the desirability of the local planning authority giving prior notice of the plans and maps and statements that are to be produced, because although I share his high regard for the inspectors it is very much open to objection that these matters sometimes come as a complete surprise to the appellant. I also entirely agree with what he had to say about the desirability that where Government Departments are playing a part in influencing that decision the evidence from the Department's representative should be available in the open at the inquiry.
§ 4.22 p.m.
§ The Parliamentary Secretary to the Ministry of Housing and Local Government (Mr. W. F. Deedes)
My hon. Friend the Member for Darwen (Mr. Fletcher-Cooke) and the hon. Member for Edge Hill (Mr. A. J. Irvine) have raised an issue of wide and topical interest which might have well stimulated a longer debate, had we had the time. Despite the final reference which my hon. Friend made to the Committee recently appointed by the Lord Chancellor, and which is under the chairmanship of Sir Oliver Franks, I must stress, without wishing to be evasive, the fact that the appointment of the Committee does put me under a certain disability. Part of its terms of reference includes:…the working of such administrative procedures as include the holding of an inquiry or hearing by or on behalf of a Minister on an appeal …I will go as far as I can in meeting some of the points which have been raised, but the procedure at these inquiries is what might be described as sub-quasi-judice at the moment and my hon. Friend 1623 really cannot get away with the suggestion that the reforms are simple and small and that we can proceed without any reference to the Committee. I cannot accept that. I should like to comment, but not pass judgment, on the various points which he has raised and I am grateful to him for giving me notice about them, because they are very technical.
My hon. Friend referred to the address which Mr. Desmond Heap gave on 3rd November and which I have read in full. I agree that it is stimulating and I have no doubt that others will read it in the future. My hon. Friend's first point was that the onus should be on the planning authority to open the proceedings. Normally, the appellant opens the proceedings and calls witnesses who can he cross-examined and then the authority states its case and its witnesses can be cross-examined. The appellant has the further opportunity to speak again, if he so desires.
We think that it is not a bad thing that the appellant should, as it were, be in a position to set the scene from the start. He is often in a position to give the basic information which is needed. From that point of view there may be advantages in having the procedure that way round. But I want to stress that it should not be assumed from that that the onus of proof lies on the appellant. Circular 61/53 to planning authorities made it clear that they should, when considering applications for planning permission, give the applicant the benefit of any doubt. I would add that this procedure is not inflexible. There is no objection at all, if the parties agree, to the planning authority opening the proceedings. There is no reason why that should not be done.
Perhaps I might refer here to the reply my right hon. Friend gave to the hon. Member for Edge Hill, when he said that he was ready to consider any proposals for improving the procedure—but … I have not had any general demand for a change of that kind."—[OFFICIAL REPORT, 13th December, 1955; Vol. 547, c. 998.]I think that that was a fair comment on the suggestion which has been made.
The second point was that if the planning authority submit written evidence it should give the appellant a copy beforehand. When an appeal is 1624 made to my right hon. Friend, the normal practice is to invite the planning authority to comment on the grounds of the appeal as stated by the applicant, and a copy of the comments received from the authority is sent to the applicant. Here again there are circulars involved Planning authorities have been urged, particularly in Circulars 69 and 61/53, to discuss proposed development with the applicant for planning permission both before and after the authority issues its decision.
What I do freely accept—and I think that this is really what my hon. Friend has in mind—is the principle that the appellant should be in possession of sufficient material in order to prepare and to fight his case effectively. I think that that is really the most important issue here. Another important point is that evidence at these inquiries is always given orally. Proofs of evidence are sometimes produced at inquiries, and an inspector may be handed a copy, but this practice. I am advised, is at least as commonly adopted by the appellants as by the planning authority.
My hon. Friend mentioned the question of the evidence of Government Departments, which, I know, is a very thorny subject and one which has attracted a good deal of criticism. The present practice, which I recite without comment, by reason of my earlier remarks, is founded on the constitutional argument that since the Government is ultimately one it is undesirable for representatives of one Department to give evidence, especially on policy, at inquiries of another Department. I do not add to that but, as I think my hon. Friend knows, that is briefly the point.
The fourth and most important point—and this is certainly a most difficult point—is that the inspector's report should be published so that there should be no suggestion in anybody's mind that there has been any "funny business." This is a very difficult and complicated question. I have no doubt at all that it is bound to get the full attention of Sir Oliver Franks' Committee. I would only say that the inquiry is part, but only part, of the process by which the Minister makes up his mind on what is really generally an administrative issue. The fact that the issue is largely administrative was recognised in the presidential address to which reference has been made.
1625 It is, I think, a matter for very careful consideration whether there is any difference in principle between the officer who holds the inquiry and other officers of the Ministry who comment on the case. It is a long-established principle that officers should advise the Minister in confidence. The question I put to my hon. Friend is, if publication of reports is to become the general practice, should any comments that go with these reports be published with them, or should those comments be withheld. That is the question which must be answered if we are to go into the matter. What I have said deals mainly with inspectors' recommendations, but the report also contains a statement of the facts of the case.
If there is to be criticism that an inspector has incorrectly reported the facts, I must point out that always in the letter stating the Minister's decision are stated the facts on which he based his decision. They are repeated openly in that letter. Experience is that complaints of misrepresentation or failure to inform the Minister fully are practically nonexistent.
I am glad that my hon. Friend paid tribute to the work done by the inspectors, not all of whom are lawyers—though that is not necessarily a disadvantage. Whatever procedure or system is eventually adopted, we shall rely largely on the personal qualities of these inspectors. I see these reports, and I am struck by the efforts they make and the pains they take to produce an answer which is fair to both sides. As a past critic of this system on other occasions, I say frankly that I have revised some of my ideas. From one point of view I wish that the reports could be made public. They 1626 would reassure those who think that there is some "funny business" going on behind closed doors.
I hope that my hon. Friend will not think that I have tried to dodge the difficulties or hidden behind the Franks' Committee, but these are contentious issues. We have had my hon. Friend's able statement of the situation which, I have no doubt, will sooner or later reach the members of the committee. I am sure that the findings now awaited on this most important issue will prove satisfactory.
§ 4.30 p.m.
§ Mr. Elwyn Jones (West Ham, South)
I wish to congratulate the Minister on his statesmanlike reply. Although I agree with my hon. Friends on most of their suggestions there would not have been unanimity between us, had there been time to develop the matter, on the question of the publication of the reports of the inspectors. I think there is strength in the famous words of Lord Shaw in the Aldridge case on this matter, that grave difficulties arise where disclosure of such reports can be compelled.
The real trouble about these tribunals is that the public mistake their function, which is essentially administrative rather than judicial. Although, their form being judicial, it is imperative that justice should manifestly be done, I think it our duty to emphasise that their function is administrative. The major points of criticism are based on the error of thinking that their function is also judicial.
§ Question put and agreed to.
§ Adjourned accordingly at twenty-seven minutes to Five o'clock.