HC Deb 08 December 2003 vol 415 cc852-7

'For section 200 of the principal Act (Orders affecting land where Forestry Commissioner; interested) there is substituted the following section—

"200 Tree preservation orders: Forestry Commissioners

(1) A tree preservation order does not have effect in respect of anything done—

  1. (a) by or on behalf of the Forestry Commissioners on land placed at their disposal in pursuance of the Forestry Act 1967 or otherwise under their management or supervision;
  2. (b) by or on behalf of any other person in accordance with a plan of operations or other working plan approved by the Forestry Commissioners under a forestry dedication covenant (within the meaning of section 5 of that Act) which is for the time being in force or under conditions of a grant or loan made under section 1 of the Forestry Act 1979.

(2) A reference to a provision of the Forestry Act 1967 or the Forestry Act 1979 includes a reference to a corresponding provision replaced by that provision or any earlier corresponding provision.".'. —[Keith Hill]

Brought up, and read the First time.

Keith Hill

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this it will be convenient to deal with the following: Government new clause 21—Tree preservation orders: Scotland.

Government amendments Nos. 1 to 7, 25, 61 to 65, 8, 66 to 71, 10 to 12 and 74.

Keith Hill

This very large group of two new clauses and 26 other amendments contains Government amendments to the Crown application provisions in part 7 of the Bill, together with some other associated changes. They could all be classified as fairly small-scale improvements and as tidying-up, but some will require more explanation than others.

With your permission, Mr. Deputy Speaker, I shall endeavour to present my remarks topic by topic so that the House can keep track of what is going on. I hope that all hon. Members will bear with me in what will inevitably be a detailed exposition.

New clause 5—together with new clause 21 and amendments Nos. 25 and 69—is about tree preservation and the Forestry Commissioners. In Committee, the Government tabled an amendment to section 200 of the principal Act that dealt with the effect of tree preservation orders on land in which the Forestry Commission has an interest.

Given that the Crown will no longer be immune from planning controls, we included a provision in the Bill to ensure that the tree work carried out by the Forestry Commission in line with its statutory duties would not become subject to the controls of tree preservation orders. This would place the Forestry Commission in more or less the same position as private landowners, whose tree work is also unaffected by tree preservation orders when carried out in accordance with a management plan approved by the commission.

The Government have looked again at the detail of section 200, as amended by clause 80, which, at subsection (1), also prevents local authorities from making tree preservation orders without first obtaining the commission's consent. Following consultation with the commission, we believe that this general restriction is unnecessary.

New Clause 5 removes the requirement on local authorities to obtain the Forestry Commission's agreement before making tree preservation orders on land that has been placed at the commission's disposal, or on privately owned land that is subject to a management scheme approved by the commission.

Mr. Clifton-Brown

Will local authorities still be able to make tree preservation orders on Forestry Commission land, or does the new clause effectively preclude that possibility?

8 pm

Keith Hill

I hope to come on to that in the course of my exposition. One never knows—inspiration may wing its way to me. Indeed, I believe that my next point may be germane to the hon. Gentleman's inquiry.

In effect, local planning authorities will be free to make tree preservation orders wherever they believe it is in the interests of amenity to do so, both on Crown land and private land. I should emphasise that no order could in any way interfere with the tree work carried out by the Forestry Commission or by private individuals under commission-approved schemes such as the woodland grant scheme. The new clause makes that absolutely clear. But an order might serve a useful and immediate purpose in cases where the commission's interest in the land comes to an end.

Amendment No. 25 deletes clause 80, which new clause 5 will replace. New clause 21 makes the same change to the equivalent section of the principal Scottish planning Act, the Town and Country Planning (Scotland) Act 1997. Amendment No. 69 deletes clause 90, which new clause 21 will replace.

I now turn to the details of the appointment of special advocates when applications are subject to directions concerning national security. These are covered by amendments Nos. 1, 2, 3 and 61. I intend to speak mainly to amendment No. 1, the lead amendment of this sub-group. The amendment is in two parts, the first of which deletes new section 321(6) of the principal Act, the Town and Country Planning Act 1990, the original provision which was modelled closely on the requirements of the Special Immigration Appeals Commission procedure.

In light of the concerns raised in Committee by the hon. Gentleman, who quoted representations from the Law Society, and the hon. Members for Ludlow (Matthew Green) and for Chipping Barnet (Sir Sydney Chapman), that the provisions were unduly restrictive, we have reconsidered this issue as I promised. We accept that competent planning specialists who have the appropriate experience and skills could carry out the function of a special advocate just as effectively as legally qualified representatives. Moreover, the Attorney-General will have responsibility for those appointments, which includes ensuring that special advocates have the necessary skills to do the job. We expect to set up a panel of suitably qualified and vetted people from which the Attorney-General can choose. That is yet another example of a listening Government responding to sensible representations.

The second part of amendment No. 1 inserts a new subsection (6) into section 321 of the principal Act. That allows the Attorney-General to appoint a special advocate for the purposes of the planning inquiry after a section 321 direction has been made. That is in contrast to the situation envisaged in new subsection (5), where the special advocate is appointed before a decision is made and can make representations as to whether a direction should be made. The new provision adds flexibility where, for example, all the parties agree that a direction should be made. The Secretary of State can therefore make the direction without waiting for a special advocate to be appointed.

Amendments Nos. 2 and 3 make parallel changes to the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Planning (Hazardous Substances) Act 1990. Amendment No. 61 makes an equivalent change to the Scottish provisions in clause 86 on the appointment of special advocates.

Amendments Nos. 4, 5, 62 and 63 deal with the way in which various requirements of the urgency procedure are prescribed. Amendments Nos. 4 and 5 make technical amendments to new section 293A in clause 77. At present, various requirements for publicising urgent Crown applications and the associated documents, and for specifying statutory consultees, are to be prescribed. Without any further qualification, "prescribed" means prescribed by regulations, as specified in section 336(1) of the principal Act. We think that the correct place for specifying those requirements is in the general development procedure order, which specifies the requirements for publicising ordinary planning applications. The amendments will therefore enable the Secretary of State to specify the requirements in the most appropriate subordinate legislation. Amendments Nos. 62 and 63 make equivalent changes to the relevant Scottish provisions in the Bill.

Amendments Nos. 6, 7, 64 and 65 deal with preventing disclosure of sensitive documents in cases subject to the urgent application procedure. Amendment No. 6 makes it clear that the Secretary of State will not be required to disclose documents relating to planning applications that are the subject of national security directions made under section 321(3) of the principal Act. It would be nonsensical to put into the public domain, under the urgency provisions, documents that are highly sensitive and cannot be disclosed at a public inquiry. Amendment No. 7 makes similar provision for the listed buildings provisions. Amendments Nos. 64 and 65 make equivalent amendments to the relevant Scottish provisions in clauses 87 and 88. The amendments remove a conflict in the legislation, and I commend them to the House.

I turn now to some minor drafting amendments, Nos. 8, 10, 11 and 12. Amendments Nos. 8 and 12 amend cross-references that were rendered incorrect by printing changes to the numbers of the new sections to which they refer. Amendments Nos. 10 and 11 correct a grammatical error by removing the superfluous word "means" from the relevant definitions of "appropriate authority" in the listed buildings provisions.

I now turn to some Scottish provisions on enforcement: amendments Nos. 66, 67 and 68. They introduce provisions that will supplement and clarify the enforcement mechanisms available against the Crown. Under each of the three main Scottish planning Acts, the planning authority will be able to apply to the Court of Session for an order declaring an act or omission of the Crown to be unlawful. The inclusion of such a provision is common in Scottish legislation, which exempts the Crown from criminal liability for contravention of statute. Its effect is that, although the Crown will be immune from criminal liability, the planning authority will none the less, in an appropriate case, be able to seek a court order to declare that any contravention is unlawful.

Amendments Nos. 70 and 71 make minor changes for Scotland, simply ensuring that provisions for the procedures for making statutory instruments appear in one clause rather than two. Amendments Nos. 74 and 78 correct an omission from the existing redundant provisions of the principal Scottish planning Act repealed by the Bill. The repealed provision in question relates to agreements relating to Crown land. A saving provision is not required to preserve the legal effect of such agreements.

Mr. Clifton-Brown

Although the wording and tidiness of new clause 5 are better than what is in the Bill, if the Bill had not been rushed through Committee, we might have improved it to the extent that new clause 5 would have been unnecessary. Having said that, it obviously makes a great deal of sense to remove Crown immunity from the Forestry Commission.

I am still slightly concerned that local authorities' role in making tree preservation orders on commission land will be quite impossible, but perhaps the Minister will be able to reassure me on that. Of course, similar provisions apply in Scotland.

On the whole, the commission manages its land pretty responsibly. When I have been involved in woodland grant schemes, among other things, on my own land, those have been administered properly. I would not normally see a need for tree preservation orders in those circumstances. How many orders have ever been placed on commission land? I imagine that there have been very few.

I am delighted to see amendments Nos. 1 and 2 because, as the Minister points out, Opposition Members made a strong case for them. I made a strong case from my experience: having worked for the Property Services Agency and having been subject to the Official Secrets Act, I can see no reason why properly qualified surveyors should not be able to make just as good a case as a legal advocate in cases involving national security. Can the Minister say a little more about how this panel of qualified and suitable people will work? Will they, for instance, have to have signed the Official Secrets Act? That would seem to me to be a fairly good prerequisite. Clearly, in planning matters, it is important that there are no leaks of plans and so on. I therefore welcome amendments Nos. 6 and 7, which, as the Minister says, stop confidential plans being leaked inadvertently into the public domain. I also welcome the similar provisions in Scotland.

On provisions in Scotland, can the Minister say a little about amendments Nos. 66 and 67? I understand that the Crown cannot be liable for criminal prosecutions in Scotland, but he said that an order may be sought that something done by or on behalf of the Crown was unlawful, and that a certificate can be obtained in those circumstances. If such a certificate were obtained, what sanctions would exist against that person acting on behalf of the Crown?

I welcome amendments Nos. 70 and 71. Clearly, any simplification of the Bill must be desirable, so one statutory instrument to deal with two clauses rather than two separate statutory instruments must be good. Again, the tidying-up amendments Nos. 10 and 11, which remove the superfluous word "means", are clearly sensible.

With the exception of the national security amendments dealing with persons who can appear at planning inquiries, and the new clause on tree preservation orders, the amendments are largely of a technical and drafting nature. The Opposition welcome the new clauses and amendments in this group, and we will not seek to oppose the Government on this occasion.

Matthew Green

We, too, welcome both the new clauses and the amendments, particularly amendments Nos. 1 and 2, which, as the hon. Gentleman said, are in response to a point that several members of the Committee raised. I am glad that the Government have listened to that and that they have made it clear that it is not just legally qualified people who can be positively vetted—that is the simplest way of putting it. That is a welcome step forward. The other amendments provide clarification in a number of ways, particularly on the issue of documents that could have an effect on national security being forced into the open by the Bill, which none of us would want. In that respect, we support amendment No. 7 in particular. I do not wish to detain the House further. Likewise, we will not oppose the Government on these matters.

Keith Hill

I am grateful to both hon. Gentlemen for their support on behalf of their parties for the amendments, which I am pleased to acknowledge that they played an extremely helpful part in securing.

The hon. Member for Cotswold (Mr. Clifton-Brown) asked two rather precise quest ions. He asked how many tree preservation orders had been placed on the Forestry Commission. I must confess that I do not have that information at my fingertips, but of course I shall undertake to write to him on that. In connection with amendments Nos. 66 and 67, which concern an application by a planning authority in Scotland to the Court of Session, declaring an act or omission of the Crown to be unlawful, he asked what sanctions were available in those circumstances. There are no extra sanctions, but the provisions give the local authority leverage in getting the Crown to comply, which is their purpose.

The hon. Gentleman also asked about the proposed panel. Of course, matters in general relating to the panel are for the Attorney-General but he asked specifically whether members of the proposed panel will have had to sign the Official Secrets Act, to which the answer is yes.

Finally, the hon. Gentleman asked for reassurance about the rights of local authorities to make tree preservation orders. Let me say, as I said earlier, that local planning authorities will in effect be free to make tree preservation orders wherever they believe that it is in the interests of amenity to do so, on both Crown land and private land. With those assurances, I hope that he will be content with the proposals.

8.15 pm
Mr. Clifton-Brown

The Minister will know that in discussions in Committee, the Crown takes many different guises. Sometimes it is land in the name of Her Majesty as well as land in the name of the Crown. Of course, the Crown immunity provisions discussed in Committee by and large treat both categories the same. Can I assume from what he has just said that the provisions in relation to tree preservation orders will treat both categories of land in the same way?

Keith Hill

I am grateful to the hon. Gentleman for asking that question. I think that our general expectation is that the answer is yes, but we will have to look at the matter in more detail—as she is only too well aware, I do not support the theory of ministerial omniscience. I think that he almost answered his own question in that regard—we will check it out, I think that he is right, but I will write to him on that subject, too.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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