§ 4 p.m.
§ Lord LYELL
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, that the House do now resolve itself into Committee.—(Lord Lyell.)
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 1 [Stop Notices]:
§ Lord FOOT moved Amendment No. 1:
Page 1, line 18, at end insert—
("( ) Before serving a stop notice the local planning authority shall have regard to the extent to which the activity or activities to be prohibited by it appear to be offensive and to the seriousness of the consequences of the prohibition for any person upon whom it is to be served".)
§ The noble Lord said: I observe that the noble Baroness who will be dealing with the Bill on behalf of the Government is not yet in her place, and perhaps I could therefore take this opportunity of telling the other Members who are in the Chamber what is the purpose of the Amendment, and to explain its contents—
§ Lord STRABOLGI
I am sorry to interrupt the noble Lord, but the Front Bench is fully manned, and we are taking note of what the noble Lord says.
§ Lord FOOT
I did not want to make that a point of criticism in any way, and looking at the Front Bench, I entirely agree that it is fully manned.
The Amendment was the subject on which I spoke at the Second Reading of the Bill, and perhaps I might explain its context to the Committee since it is a rather technical point. Under the town and country planning legislation up to this time the local planning authorities, when they consider that there has been a breach of planning control, have certain remedies at their disposal. Under Clause 1(2) of the Bill it is proposed to add another weapon to the armoury of weapons with which the local planning authorities are already vested. Perhaps I might explain, in as brief as possible terms, what is the 564 present state of the law. If the local planning authority considers that there has in some way been a breach of planning control, it has at its disposal first of all the remedy of issuing an enforcement notice. The authority issues a notice which requires the person who is assumed to be in breach of planning control to cease the activity, whatever it may be, within a certain period of time.
Development under our planning law falls into two categories. First, there is the type of development which involves some physical alteration of the premises or the site concerned, and, secondly, there is a quite different form of development, which is constituted when somebody decides to change the use of existing premises. Both of these activities are forms of development. With regard to the first kind of development—that is, doing something physically to alter the site or the premises—there has long been available for the local planning authority (certainly since the Act of 1971, which is the main Act) a double-barrelled gun. It can first of all issue an enforcement notice, and when that is done the individual concerned is required to cease that activity within a particular period of time specified in the notice. But the individual concerned has a right of appeal. If he appeals against the notice, the matter goes to an inquiry, and it might be quite a long time before the issue is resolved.
Meanwhile, however, if only an enforcement notice has been issued, the individual can continue with his activity until such time as his appeal is heard and decided on. That has manifest insufficiencies. If a local planning authority is confronted with an activity, with something physically being done on the site or the premises, which seems to constitute a breach of planning control, and if the authority can have resort only to the enforcement notice procedure, and the person concerned appeals, this means that the individual concerned can continue with his activity, however objectionable it may be, throughout the whole of the appeal procedures. It may well be—and no doubt it very often happens—that if, for example, one is constructing a building, then before all the procedures have been gone through the building has actually been put up; or, alternatively, the building has actually been pulled down.
565 Therefore in order to meet that obvious gap in the law, it was provided by the Act of 1971—if not before—that there should be an additional weapon. That is that if in these cases of physical development the local planning authority decided to issue an enforcement notice because it thought that there had been a breach of planning control, and then went on to think that it was a matter of urgency, it could issue additionally a stop notice, which could bring the activity to an immediate, or very nearly immediate, halt. I think that everybody is agreed that in cases of that kind that additional stop notice procedure is very valuable and important.
But the situation up to now has been that the stop notice procedure is available to local planning authorities in the event of a physical change in the premises or the site, but it is not available in the second kind of development; that is to say, where there is a change in the use of the premises. The main purpose of the Bill, which I regard in principle as wholly laudable, is to fill that gap and to make the stop notice procedure applicable in some instances to the development which is a change of use. It was in 1975 that Mr. George Dobry, who had been asked to investigate the whole of our planning procedures, issued his report in which he recommended that the stop notice procedure should be extended to the change of use development in cases where the change of use was of an offensive nature. As I understand it, the Bill is designed primarily to implement the recommendation that was contained in that report.
I have no objection—and I have never suggested this—to an extension of the law as Mr. Dobry contemplated it and recommended it. I have no objection to the extension of the stop notice procedure to development by way of change of user, if that change of user is indeed offensive. But the Bill goes a long way further than that, and in Clause 1 it provides that the stop notice procedure shall be available to local planning authorities in the case of all changes of use, however inoffensive or offensive they may happen to be. It is to that matter that the Amendment is directed.
My argument to the House on Second Reading was that, if the Bill went through 566 in its present form, allowing a local planning authority to use the stop notice procedure in any case where there had been a change of user, it could be used oppressively, and particularly oppressively against small people. From the many examples which I could have chosen to illustrate my argument, the kind of case which I chose was that of a person who is occupying a house as his residential accommodation, as his home, and who decides, for example, to start some small line of business. If when he does that he uses his own home for meeting clients, for example, or for meeting people with whom he is doing business, he may well be in breach of planning control because that may constitute a change of user. Under Clause 1 of this Bill as it is now drawn, it would be open to a local planning authority in a case of that kind, if they so wished, not only to issue an enforcement notice and allow the whole matter to go to appeal, but to issue a stop notice requiring the person to cease that activity forthwith, even though the activity was wholly intrinsic and even though the activity was one which the local community and his neighbours might welcome as providing a useful service for them.
Therefore, my argument was that it was wrong in principle to extend the power of local planning authorities to issue stop notices in all such cases because of the danger that it might be used oppressively in that way. After all, if somebody in their own home sets up a hairdressing business, for example, or something like that, and uses the front room for that purpose, it is very difficult to believe, is it not, that that is doing any harm to the people of the neighbourhood?—or at least the harm must be minimal. It is, on the other hand, providing a service which presumably is of some use to them. Surely it is oppressive that a local planning authority should have the power arbitrarily, if they wish to do so, to say to that person, "No; you must stop this activity, not only when the enforcement notice comes into effect but now." Within three days of issuing the notice they can require that the activity be brought to an end; in many cases possibly with almost disastrous results. The person concerned may have invested money; he may have entered into contracts, and the rest, in connection with this little business, and he is told, "No; you must 567 bring it to a halt forthwith". That was the matter with which I was concerned, and the whole object of my Amendment today is to seek to limit the power to issue stop notices to the cases which Mr. Dobry had in mind; that is, to the cases where a change of user constituted something offensive to the neighbourhood.
I am sorry to go on for so long, but what I shall try to do now, very briefly, is to deal with the arguments which were advanced at Second Reading in attempted rebuttal of the argument that I was putting forward. Those arguments fell into three classes. It was said, first of all, that local planning authorities are very reasonable people, and they themselves would not wish to use this stop notice power in cases where it was not appropriate and in cases where it would be oppressive. I said on the last occasion that I thought there were two answers to that argument. The first one is a general answer, that it is wrong in principle, in my submission, to give to local planning authorities, or indeed to any other authority, powers which could be used oppressively and arbitrarily if it is possible to avoid that course being taken. Local planning authorities, however well-minded they may be, if they are insufficiently informed and have not got all the facts in front of them, can almost inadvertently, as it were, issue a stop notice which is going to do great damage to an individual of which they, as a planning authority, may be almost wholly unaware. That is the first answer, as it seems to me, to the argument that they are reasonable people. Of course I agree that they are likely to be reasonable people; but that is the general answer to the question. The more particular answer is that, as I was trying to say just now, the local planning authority may not act oppressively out of malice, but they may act oppressively because they are ill-informed or insufficiently informed of the consequences of what they are proposing to do.
The second argument which was advanced against my proposal was that there is no need to worry about local planning authorities using this power wrongly, for the reason that, under the terms of the town and country planning legislation, if a person has an enforcement notice and a stop notice wrongly served upon him then, in the fullness of time, he may 568 be entitled to compensation; and the parallel argument to that was that local planning authorities will always be careful not to issue stop notices where they should not because of the risk that they, the local planning authority, may have to pay out compensation at some later date.
In my submission there are three flaws in that argument. The first of them is that, in the sort of case which I took just now to illustrate my argument—the case of somebody who sets up in business in his own home—if you impose a stop notice and, subject to legal sanctions, you say, "You shall not carry this on after tomorrow", you may be doing him a damage for which he can never be adequately compensated, because you may have smashed his business, into which he has made some investment of capital, time and money.
The second argument against this contention, in my submission, is that there is one instance—and it is a very important one—in which no compensation is payable at all, and that is the case where an enforcement notice and a stop notice are issued and there is an appeal against the enforcement notice, and when the appeal is decided by the Secretary of State or on his behalf it is found that, although this was a breach of planning control, nevertheless the local planning authority ought to have given planning permission for it in the first place. In those circumstances, the individual is entitled to no compensation whatever; so if the stop notice procedure is used to smash up a chap's business and he eventually proves that he ought to have been given planning permission, he is not entitled to a penny-piece of compensation. That made sense when you had only the enforcement notice: it does not make any sense at all if you introduce the stop notice procedure into the cases of change of user.
The third reason why I suggest that this argument about compensation is invalid is that anyone who wants to assert his rights of appeal and obtain compensation is in fact faced with a very difficult and complicated task in which he will inevitably require the assistance of legal advisers. He has to establish that he has suffered a loss which is directly attributable to the cessation of his activity or is attributable to an obligation which was put upon him 569 under contract. In the last resort, if the matter is in dispute, it has to go to the Land Tribunal, with all the expense and the difficulty which that entails. The procedure for appealing for compensation is one which is most difficult in the case of the smaller man, and it is with him and with the layman that I am chiefly concerned.
The third argument that was used—and it was used, I think, by the noble Baroness sitting on the Government Front Bench—was that if you were to amend this Bill to say that the stop notice procedure should be allowed only in cases where the change of user was offensive, there might be indefinite argument about what was offensive, and there might be argument in the magistrates' court, if a prosecution was instituted, as to whether the local planning authority had acted within their powers or ultra vires.
The second argument was this. Something which is offensive in one place on one occasion may not be offensive in another place on another occasion. I accept that argument. I think it would be wrong to try to put the word "offensive" before the word "activity" in Clause 1.
My Amendment is the most modest of all. It does not call for that at all. What my Amendment seeks to do is this. It is plain from just reading it:Before serving a stop notice the local planning authority shall have regard to the extent to which the activity or activities to be prohibited by it appear to be offensive and to the seriousness of the consequences of the prohibition for any person upon whom it is to be served".This is an extremely modest suggestion. All it does is to call upon a local planning authority who have it in mind to issue a stop notice to halt before they do so and to consider as best they can how offensive, if offensive at all, this activity is—if it is not offensive it could await the outcome of the appeal procedure against the enforcement notice. Secondly, it calls upon them before issuing a stop notice to have regard to the seriousness of the consequences as they might be to the individual who is to be estopped. I am sorry that I have taken such a long time and I can promise I shall not take anything like as lone over any of the other Amendments in my name; but I hope the suggestions that I have made may be acceptable, first, to the noble Lord responsible for the Bill and, secondly, to the Government. I beg to move.
§ 4.22 p.m.
§ Lord LYELL
I am sure that the Committee will be grateful for the detailed way in which the noble Lord, Lord Foot, has spelled out his Amendment and explained it so carefully. He outlined what he had in mind at Second Reading but he has gone into great detail. I think he had no need to apologise, for it is a detailed and complicated subject as I am finding and as I am sure are other Members of the Committee. I am sure the noble Baroness opposite would agree that it is a detailed and difficult Bill. But, as I understand it, the issue here, and, in particular, with this Amendment, is whether the Bill itself should do any more than spell out the circumstances that a local authority should have regard to before taking a specific action in respect to a stop notice.
Perhaps it might be as well to approach it from the point of view that, first of all, the local planning authority has to exercise its collective judgment when it wants to consider whether or not enforcement action should be taken at all in respect of any breach or prospective or possible breach of planning control, because, as the noble Lord, Lord Foot, has pointed out, before any stop notice can be issued or action taken an enforcement notice must be issued.
In Section 87(1) of the 1971 Act we find that this subsection requires the local planning authority to consider very carefully—I think the words used are these—-"whether it is expedient" (a very strange Biblical term) "having regard to the provisions of the development plan and any other material consideration". I think that this particular requirement provides a link between the local planning authority's jurisdiction to take enforcement action in respect of those breaches of planning control and their function of dealing with planning applications in that it directs their attention to the planning merits and also to the fact that an enforcement notice should be served only if it is expedient to do so. Whether or not it is expedient to take that action depends on the particular circumstances of the case.
The most important issue in any case would be whether the activity is acceptable on planning merits. But experience has shown in cases of this type that even where 571 the activity causes harm or (dare I say?) offence to the area, the authority will in the majority of cases take enforcement action and issue an enforcement notice only as a last resort following a great deal of cumulative pressure upon them by local residents to take action; and this is the first action that they can take. As the noble Lord, Lord Foot, has pointed out, the service of a stop notice—and that is what my Bill deals with—is a separate action by the authority; and when the authority come to do that they must take a further decision whether they are going to take this grave step in addition to serving an enforcement notice. The question of whether the authority should or want to serve a stop notice must again, separately, be a question of their collective judgment, and it must be carried out in relation mainly to the planning interests. These interests are primarily the public interest in the locality concerned.
If we were to add to Section 90 of the Act by means of this Bill provisions as to the specific matters which the planning authority must take into consideration before serving a stop notice, this, it would appear, gives a great deal of scope for legal argument as to whether the authority acted lawfully in serving the stop notice. And when we come to "lawfully", there is a great deal of fertile ground for dispute and argument as to what is offensive and what is not offensive. In addition, to spell out particular and special things which ought, in some cases, to be taken into account and not to specify other equally important things could, and I believe would, imply that stop notices cannot be served unless these particular circumstances are present. This would provide scope for the validity of stop notices, in particular, to be challenged on mere technicalities.
The Amendment of the noble Lord, Lord Foot, raises doubts in my mind on two grounds. I deal first with the requirement to have regard to the extent to which the activities appear to be offensive. This seems to prohibit the serving of a stop notice in any case unless the activities themselves are considered to be offensive. Of course, we are going to have trouble in defining the word "offensive" and, as I have suggested already, there would be considerable ground for legal argument and dispute 572 as to what is the precise meaning in particular circumstances, which could vary from place to place in the country, regardless of the general circumstances in which the breach has occurred.
One of the main purposes of Clause 1 of this Bill is to give local planning authorities the power to remedy the type of situation where a developer or some person has repeatedly flouted planning control by moving a use from one part of his land to another. Yet, as far as my instructions are at the moment, if this Amendment were to be accepted, the authority would be unable to serve a stop notice in such a case unless they could justify it on the special grounds that the activities are of such a nature that they not only warranted action being taken to prevent damage to the amenities of the area but also were offensive.
The Second problem that I have in considering this Amendment is that the formula,the local planning authority shall have regard to the … seriousness of the consequences of the prohibition for any person upon whom it is to be servedis too general in that it does not appear to add anything material to the authority's present implied obligations or to have any tangible effect.
If I may reply to one or two points which the noble Lord, Lord Foot, raised, he was correct when he pointed out that it was objectionable that local planning authorities should use their powers oppressively under a stop notice scheme. Those in local planning inquiries and Secretary of State's inquiries are going to be saddled, if this Amendment is accepted, with the endless problem of the legal definition of what is offensive. The word, "offensive" might take on different meanings in different areas. In country areas various activities might be considered objectionable. Some activities in the North, in Yorkshire, might be thought acceptable whereas in rural parts of the West country they might be taken to be offensive, and vice versa. I can think of similar circumstances in Scotland but of course that is not covered by this Bill. The word, "offensive" could have too wide a meaning.
The noble Lord, Lord Foot, raised the question of a small business. A particularly attractive example was the hair- 573 dressing business. He said that the harm would be minimal. Perhaps the noble Lord would consider it from the point of view of if his own neighbours started up a hairdressing business. The noble Lord might find that the incidence of traffic might be considerable at certain times, and not only he hut his other neighbours might find it objectionable.
§ Lord LYELL
I am pleased that the noble Lord has personal experience of this business which is carried on in such a way that it does not provide an offensive situation, a traffic block and nuisance to the noble Lord; but I can envisage circumstances in which possibly a car hire firm could cause a nuisance to neighbours in a residential street with cars coming and going all through the day and night. A quiet residential street, possibly with children playing there in the holidays, could be turned into something with a traffic problem, a noise problem or general offence could be caused. The new activity could be offensive.
I take the point about compensation. The noble Lord raised the question of compensation not being payable on a successful appeal in an enforcement notice. That is not apposite to the Bill. However, he pointed out that compensation was payable in the case of a successful appeal against a stop notice. The main point that the noble Lord had was that compensation would not be adequate remuneration for the ruination of a particular businessman and of the loss of all his investment.
The Bill we are discussing this afternoon does not seek to be oppressive. I feel that the neighbours who feel oppressed would bring pressure to bear upon their district or local council and thus pressure would be brought to bear on the local council and hence the local planning authority. Does the noble Lord. Lord Foot, consider that they too have what I hope would be equal rights?
The noble Lord is correct when he mentions two examples of small businesses. He mentioned one very successful business which clearly provides no flagrant 574 offences or major breach of planning control. It might provide a technical breach of planning control. There might be a possibility that a local authority might issue what would seem to be an oppressive enforcement notice. But I wonder whether this is the case. Certainly my Bill does not seek to enter into this arena of oppressiveness, nor does it seek to try to give a definition to the word, "offensive". Lord Foot's Amendment may have a certain amount of merit, but I am afraid that I cannot see my way at the moment to accepting the Amendment and seeing how it fits into the Bill and the object of the Bill, in spite of the detailed way in which the noble Lord spelt out his Amendment.
§ 4.35 p.m.
§ Lord HALE
The discussion to which we have listened has given me a certain amount of disquiet, not least Lord Lyell's statement that a hairdressing establishment might be offensive and might, by implication of his argument, be so offensive that it should be closed down summarily by a stop notice if an enforcement notice has not been complied with. I would have thought it was not sufficiently offensive to be cut immediately with a complete transfer of all the customers to some adjoining place.
Hairdressing these days is a very considerable service. One activity of someone I know intimately is driving old-age pensioners in South London to hairdressers because it is impossible for the pensioners to travel. There may well be a case for establishing a quiet little branch where the old-age pensioners can be served more conveniently and better.
The noble Lord, Lord Foot, has gone a shade further than I would have done in his tribute to the rationality of local authorities. I have never regarded the town hall as necessarily the seat of all wisdom; and we did establish an Ombudsman for local authorities with power to investigate fully in this very special field, in the case of the arbitrary use of planning powers in the various Acts. I found myself listening to a television programme some weeks ago, the Esther Rantzen show, where they were dealing with the exercise of the powers of the local Ombudsman and expressing some surprise and 575 giving in detail three cases, each of which raised the issue of housing and planning, the individual planning of a house, in which the Ombudsman had made a long investigation. He had sent his report to the local authority and the local authority had replied that they did not intend to do anything about it. They had examined his report in depth. One council adjoins my own, and of which I know nothing else except that it is within two or three miles of my house in Croydon.
The person who claimed to be seriously injured by the action of the authority asked what other steps she could take. She was told that she could go back to the Ombudsman. She went back and the Ombudsman—not, we assume, without I touch of indignation that was not expressed—made a further careful investigation and review. He submitted a report, and the council said that they did not propose to pay any compensation or take any action.
I should not have thought, therefore, that the chance of getting compensation from some councils in respect of measures like this is likely, unless the law is made so clear that a right to compensation is expressed. As I read the Statutes at the moment, no such right is very clearly expressed, particularly in the field of the transfer of business. In a private Committee upstairs, we have been considering EEC proposals for dealing with credit trading and so on. I was astonished to find that there is one association which has about 400 agents operating on private premises. They say that the person who operates the business buys a good deal of stuff for himself (or, more usually, herself) and has neighbours in to see samples, catalogues and so on. This is apparently a very extensive business. Could that be said to be offensive, if a number of people call with their cars?
I venture to suggest that with a change of business, the operation of a stop notice is infinitely more serious than when all it is designed to do is to hold up some building or construction operation, seriously though that may operate. Indeed, if it is a new activity, as it usually will be, the person gets his stop notice just at the point when he is beginning to develop a connection, which that stop notice then destroys instantaneously, without any 576 remedy. Things in this sphere do not move very rapidly, so an operation would be destroyed for some time, and perhaps destroyed beyond resuscitation.
I am sure that the noble Lord, Lord Foot, has had many consultations, as has the noble Lord, Lord Lyell—because I know the very great care he always takes over these measures—but I venture to suggest that the noble Lord, Lord Foot, has tried to draw this Amendment in the most modest fashion, supporting the Bill. Unless a formula can be found, I personally would support the Amendment on a Division.
§ 4.43 p.m.
§ Baroness BIRK
I should like to apologise to the noble Lord, Lord Foot, who moved the Amendment and also to the noble Lord, Lord Lyell, because I was not here at the beginning of the debate. The previous Business collapsed rather suddenly while I was still searching my soul about the notices.
I would begin by being quite frank about this and saying that I had considerable personal misgivings about the problems of the stop notice in relation to the very point raised by the noble Lord, Lord Foot, in his Amendment. He also raised it on Second Reading. First, may I say that this is a personal statement, although it can be a Governmental statement, because I usually find myself on the same side as he is in areas of the rights of the individual. Secondly, I have a great respect for what the organisation, Justice, of which the noble Lord is vice-president, has to say. I thought it required considerable investigation, which I have carried out since Second Reading and I have also discussed the matter with colleagues.
I feel that the noble Lord has really proved the existence of a difficulty himself, since he has accepted the difficulty of having to define the word "offensive". He has done so by putting in the most innocuous or simple words; that is, "appearing to be offensive". So he has tried to move away from the difficulty of definition and has accepted—as I was in any case going to say—that as regards the Dobry Report it is one thing to refer to an activity described as "offensive", but it then becomes very much more 577 difficult somehow to interpret that in legislation, which is what we are concerned with today. That is the first point.
It also seems to me that what we are concerned with are the elements that have to he taken into account by the local authority, the planning authority, when planning matters are being discussed. The environmental effects obviously must be taken into account—perhaps one should use that word rather than the word "offensive"—and they are obviously one of the criteria that have to be used.
Perhaps my noble friend Lord Hale overlooked the point that before a stop notice is served an enforcement notice has to be served; so there is no question of something appearing summarily. Incidentally, my noble friend made several references to the Ombudsman, or the Commissioner for Local Administration. It is interesting, if one looks both at their reports and discusses with them what has come before them, to note that most of the pressure upon them has been in the planning content. That has come from individuals and residents asking that more should be done about their complaints over alleged contraventions of planning control. That is the important point of trying to tighten up planning law in this area by means of this Bill, to which the noble Lord, Lord Foot, says that he agrees in the larger context.
If we are getting back to the use of the word "offensive"—although the noble Lord, Lord Foot, has drafted it in a rather different way from the way he spoke about it on Second Reading—it seems to me that by doing it in this way it is almost tautological, because it is something which ought to be, and is, taken into account when planning is considered and which in any case would be part of any appeal under the appeals procedure.
When one comes to the second part of the Amendment, I think I must say, with respect, that we are on rather slippery ground. Here I am talking about the seriousness of the consequences of the prohibition for any person on whom it is to be served. There are two points here. Take, for example, the case of the closing of a particular plant that might not be a serious blow to a particular industrialist; it might be part of his whole enterprise, and it might be causing him quite a lot 578 of trouble anyhow. Nevertheless, the closing of it could involve a considerable number of people being put out of work. Such a circumstance would be outside what is mentioned in the Amendment, because the stop notice would be served on the owner concerned, or the industrialist, and not on the workpeople. Therefore, you would not be protecting a certain number of people who probably should be protected.
Then there is a wider point, whether one ought really to be judging if something is right or wrong because of the effect on the person. There has been a recent case on this point and there is a great deal of discussion on the criminal law as to whether you should take into account then the effect on the person concerned of what the sentence, or whatever it is, should be.
One is getting into extremely difficult waters if one is arguing along those lines. We get back to the rather more prosaic point of why this legislation is considered necessary, and why the Government are supporting the noble Lord, Lord Lyell, in his Bill: that is, that planning law has been brought into disrepute by people repeatedly contravening it. Therefore, we want to enable local authorities to take quicker and more effective action. We do not want this to be a self-defeating exercise because of the length of time taken over appeals and enforcement notices. This is why we believe that local authorities should not be restrained from serving stop notices, where it is clear that there have been repeated flagrant contraventions of planning controls.
I certainly do not dissent from the view of the noble Lord, Lord Foot. As I said, authorities should take account of the matters he has mentioned, among others. Certainly, my Department—this was stated in another place—will give guidance to local authorities on the exercise of the powers, and when we do so the points that have been made, and made extremely effectively by the noble Lord, will be very much borne in mind. I would say with great respect, getting away from the words and the drafting, that the substance of his Amendment is something which should be in the guidelines to a piece of legislation, and not in the Statute itself.
§ 4.52 p.m.
§ Lord FOOT
I am very grateful to everybody who has taken part in this short debate, particularly to the noble Lord, Lord Hale, for the support which he has given to me. I should like to deal very briefly with the arguments that have been used against my Amendment. The first one which was used by the noble Lord, Lord Lyell, and repeated, in effect, by the noble Baroness, is that if you were to pass an Amendment of this kind there would be some legal difficulty in trying to interpret what the word "offensive" means. The whole object of my putting the Amendment in this form, rather than trying to introduce the word "offensive" prior to the word "activity", is to avoid legal argument about what the word means. I speak now as a lawyer, and I see that there are one or two other lawyers in the Chamber. If you pass this form of words as an Amendment to the Bill, I would say with respect that the belief that there will be argument in the courts as to whether a local authority indeed had regard to the essential offensiveness of what was being done, is to my mind completely unfounded. May I tell the Committee why? There are very many precedents on the Statute Book where a duty is laid upon some authority and the Act says something to this effect, that in exercising their jurisdiction in this matter the authority concerned—or it may be the court—shall have regard to the following factors. It has never been suggested, so far as I know, that when something is expressed in that way the decision of the authority is open to challenge on the ground that they did not have regard to those factors.
If I may quote a very recent case, which some noble Lords may remember, when the Bail Bill was going through this House it was the noble and learned Lord, Lord Hailsham, who proposed an Amendment saying, in effect, that where a court was considering the question of bail it should have regard to the following factors, and there were set out seven things to which the court was required to have regard. So far as I know, nobody has ever suggested—if I am wrong about this, then I may be challenged by somebody who knows better about the law—that if magistrates refused bail the person who was aggrieved could then go to a higher court and say, "I want bail. 580 I am entitled to bail, because the magistrates failed to have regard to the factors to which they ought to have had regard."
Similarly, when we were considering the Countryside Act, about 10 years ago, there was a special section inserted into that Act which stated that every Government Department, when considering legislation, orders or Ministerial directives shall have regard to the effect upon the environment. Is it conceivable that there could ever be a case where somebody could go to a court and say, "This order which has now been made is ultra Tires, because the Government Department concerned did not have regard to the environment"? I am afraid that this is unarguable, and both the noble Lord and the noble Baroness are wrong about it. My form of words would effectively preclude the courts from entering into a discussion as to whether or not the activity was offensive. That is the first point that I would make.
The second point which the noble Lord, Lord Lyell, made was when he questioned whether I was right in saying that under the terms of the 1971 Act, as amended by this Bill, if an enforcement notice is issued in respect of some activity or use and a stop notice is issued, and there is then an appeal against the enforcement notice and the inspector decides that planning permission ought to have been given in the first instance, the aggrieved party has no right to compensation. I am afraid that he is wrong about that.
If he will look at Clause 2(3) of his own Bill he will see that it says:In subsection (2)"—that is referring to subsection (2) of Section 177 of the Town and Country Planning Act 1971—(circumstances in which right to compensation arises) for paragraphs (a) and (b) (enforcement notice quashed or varied on certain grounds) there shall be substituted the following paragraphs—'(a) the enforcement notice is quashed on grounds other than those mentioned in paragraph (a)'.If he will look back at the section, he will see that what it does is this. It repeats, in connection with enforcement notices and stop notices, that if, eventually, an enforcement notice is turned down and declared invalid on the ground that planning permission ought to have been 581 granted in the first place, then the aggrieved person has no right to compensation, whether the matter was dealt with under an enforcement notice only or under an enforcement notice and a stop notice. So that there is no virtue in that argument.
May I now turn to the comments made by the noble Baroness. If I may say so, she did not appear to me to be speaking to the Committee with the conviction that she usually carries. That may be because, as she was good enough to say, she herself was a little exercised earlier on as to whether we had got it right. But she said, extraordinarily enough, that the first part of my Amendment, the part which says that a local planning authority shall have regard to the question whether an activity appears to be offensive, is tautological. She said that it is unnecessary, because that is what they will do, anyway. But if it is unnecessary, is any harm done in spelling it out explicitly in an Act of Parliament? My whole object is to try to ensure that when a local planning authority are considering the stop notice procedure, they should hold back and consider the factors to which I have drawn attention. If it is tautological, what possible harm is done by explicitly stating it in the Act of Parliament? So far as the second part of my case is concerned—
§ Baroness BIRK
I thought I covered that point by saying that it would be very much more appropriate, although the noble Lord may not agree with me, if this were contained in the guidelines which will be given to local authorities. I am sure that the noble Lord will agree that we do not want to lumber legislation with things which should not be in it.
§ Lord FOOT
I was going to deal with that point; it is a perfectly valid one for the noble Baroness to make. The difficulty, however, as the noble Baroness will perfectly well know, is this. If you want an authority to behave in a particular way and, instead of putting it into a Statute you leave it to a Home Office circular or a Department of the Environment directive, it has not the same force. If you put it into a Statute what happens is that, whenever a local planning authority are considering a stop notice, immediately the clerk will draw their attention to the fact that by Statute they are required to have regard to these two factors. A 582 Department of the Environment circular has no such effect. After it is issued it may remain in cubbyholes collecting dust in local authority departments, and is never resurrected. As the noble Baroness knows, it has happened over and over again that circulars and directives of that kind are forgotten in the course of time. Very often the Department has to issue another circular drawing the attention of local authorities to the matter to which it drew their attention in the first place. We had this argument over various Home Office measures. It has been constantly said, "By issuing a circular you can ensure that the magistrates get it right". The disadvantage of doing that is that so often the circular is forgotten after a period of time has elapsed.
The last point that I should mention is this. So far as the second part of my Amendment is concerned—that is, the local planning authority should have regard to the seriousness of the consequences of the prohibition for any individual—the noble Baroness says it does not go far enough and that one ought to say that not only shall the local planning authority have regard to the seriousness of the consequences for the individual applicant, the person who wants to engage in this activity, but that further protection ought to be provided for all the people who might be rendered unemployed. I have no objection to putting that in if we can work out a form of words for it, but surely it is very remarkable when a representative of the Government comes to the Committee and says, with regard to my Amendment, that the first part of it is unnecessary, because it is tautological, and that the second part does not go far enough.
§ Baroness BIRK
I am sorry, but I did not say that. I said that the way in which the Amendment is drafted does not seem to me to have the effect which the noble Lord has in mind. We are speaking to that Amendment. The noble Lord must not put words into my mouth. It is up to him if he wishes to draft another Amendment. I was pointing out to the noble Lord that his Amendment does not seem to me to fulfil his intentions. Therefore the Amendment itself is not valid. I was not suggesting that the noble Lord should or should not do anything about it.
§ On Question, Amendment negatived.
§ 5.5 p.m.
§ Lord BROOKE of CUMNOR moved Amendment No. 2:
Page 2, line 6, at end insert—
( ) the use of land as a caravan site by a travelling showman within the meaning of paragraph 10(1) of Schedule 1 to the Caravan Sites and Control of Development Act 1960 who has taken up winter quarters on such land as provided in that paragraph, or
§ The noble Lord said: I beg to move Amendment No. 2. This Amendment is directed towards the special and, I think I can successfully show, unique situation of travelling showmen—the men who run the fairs, with which we are all so familiar, all over the country. Even the most staid of your Lordships must at some time have paid to go on a dodgem car, or to shy at coconuts, or to come down a helter-skelter, which is not very easy for grown-ups to do in dignified posture. From about March to November of each year these showmen are travelling around the country to various fairs with their fairground equipment. They have their equipment and machines, and also lorries and trailers to carry the machines. However, in this climate of ours very few people want to go to fairs between November and March; it is too cold and wet. Therefore, for three or four months of the year the showmen are off the road, and they have to find a site with planning permission, on which they can place not only their caravans, which are their homes, but also their equipment and vehicles. This is one of the respects in which the travelling showmen are unique.
§ They cannot drop their equipment and vehicles somewhere and go off in their caravan homes elsewhere to enjoy themselves during those months. Throughout that time the equipment needs their presence and attention and their safeguarding and protection. Indeed, one may truthfully say that for practical purposes their caravans and equipment form a single and indivisible unit.584
§ As it stands, Clause 1 of the Bill provides for a new subsection (2) in Section 90 of the 1971 Act, which is clearly based on the principle that a stop notice must not be used to deprive people of their homes at short notice. Paragraph (b) of the new subsection at the top of page 2 protects a caravan which is a person's only home or, at any rate, his main home. However, unless my Amendment is accepted, a local authority could still serve a stop notice on the fairground equipment of a showman in his winter quarters. This would have just the same effect as a stop notice on his home; that is, the caravan. He could not move the equipment elsewhere and not go along with it himself. He could not leave it unattended on a roadside verge or elsewhere.
§ As it has come to us from another place, the effect of the Bill is to discriminate against this one type of caravan dweller—the travelling showman—in his winter quarters. I am quite sure that this is not intended, and that this has happened by inadvertence. However, this is the practical effect of paragraph (b) as it has come to us, and the object of my Amendment is, quite simply, to remove that discrimination.
§ Some of your Lordships may wonder why I am interested in this subject, and very briefly I will explain. I was Minister of Housing and Local Government in 1960 and was responsible for putting on to the Statute Book the Caravan Sites and Control of Development Act 1960 which is mentioned in the Bill. After that Bill had been published and, I think, before it received its Second Reading I had become convinced that special provision must be made for the winter quarters of the travelling showmen because of their unique situation, and that it would have discriminated against them if the Bill had reached the Statute Book in its original form. Therefore I agreed to an Amendment which was directed towards suiting travelling showmen in their special situation. So far as I know, that Amendment was approved by all parts of both Houses and again, so far as I know, since then it has never given any trouble. What I am asking your Lordships to do now is to recognise the special position of the showmen and to ensure that this Bill does not discriminate against them.585
§ Finally, while lam well aware of some of the difficult situations which have given rise to the need for this Bill—a Bill which I thoroughly support—so far as I know no misbehaviour on the part of travelling showmen has been alleged as a reason for this Bill. There has been what one might term "misbehaviour" by certain other kinds of person which has necessitated the introduction of this idea of the stop notice, but certainly nobody has charged the travelling showmen with being part of the cause why this Bill is necessary. I hope what I have said will carry conviction and will persuade your Lordships that it is desirable that specific attention should be given to the special problem of travelling showmen. I beg to move.
I should like to support the Amendment moved so succinctly and with such feeling by the noble Lord, Lord Brooke of Cumnor, and to give an example of how travelling showmen can be helped. I agree with the noble Lord that they give great pleasure to many people; we have all enjoyed their efforts to make life somewhat brighter and they are good citizens. Therefore I think they should receive consideration.
In the City of Plymouth there is a ring of what are known as "Palmerston Forts" and one of these has been given over to showmen on payment for a lease. In renegotiating this lease for another 10 years the rent required has risen by £300 a year to £2,750 a year and the local Western section are prepared to pay this. Of course this means an increase for each individual showman, and there are 20 to 25 families on this site. They are asking the council to agree that retired members and invalids should be able to stay there all the year round. As my noble friend mentioned, there are restrictions and they are asking not to be restricted under the 1960 Act which sets a period of restriction from October to March. This has not been finally settled, but I am told that the council appears to be viewing it favourably. I should have thought this was a good example that if the travelling showmen are given the opportunity they can have a permanent home.
Regrettably these travelling showmen are so often classified as gipsies or other travellers. Strangely, under our laws special provisions are made for these 586 people. The showmen are prepared to find their own sites and if planning permission is refused then they have to find another. It is necessary to remember that the caravans are their only homes; they are not second homes. There are between 3,000 and 4,000 of these peoples who are welcomed by provincial cities and others from April until October by virtue of Class XXII of the General Development Order of 1977 and paragraph 10 of Schedule 1 to the Caravan Sites and Control of Development Act 1960. Therefore, during a period of years they have the protection of the law but during the first year they may become wanderers.
There is also further protection against these people becoming a nuisance because if they erect sheds or buildings or even put down hard standings on the site without planning permission they can readily be stopped under Section 90 of the 1971 Act. As amended, the stop notice provision contained in this Bill would mean a great deal of hardship to many people. Showmen and their families with nowhere else to go may be forced to move at three days' notice from a site which—and I want to make a special point of this—they have the owner's permission to occupy, and in some cases they have actually bought the site. This seems to me to be extremely unfair. They can still appeal, of course, but compensation provisions are not applicable to them. The only ground on which the appeal is likely to be allowed is Section 88(1) of the 1972 Act. Therefore, their only alternative from crippling stop notice penalties will be to move to the roadside and to put their caravans on the verges or on any space they can find. I do not think that would be helpful. It would create a problem for the landowners and for the local authorities and would not be approved by the Ministry for the Environment.
So, I should like to suggest that unfortunately this discrimination against travelling showmen and their accompanying vehicles is not covered by this Bill although they occupy caravans as their sole residences. The object of the proposed new subsection must be to prevent homelessness. We are all worried about homelessness and we have had many debates on it in this House. Therefore, why should we attempt to create more homelessness under this Bill? My final point is that in my 587 view one caravan community should not be placed at a disadvantage vis-à-vis the others for whom we have already produced legislation. Therefore, I support the Amendment.
§ 5.16 p.m.
§ Baroness BACON
I should like to make a brief intervention in support of this Amendment. The travelling showmen are very law-abiding people and I cannot think of any instance where they have caused trouble. They are in a unique position with regard to their winter quarters and we also have to bear in mind that over the last 10 years or so the travelling showmen have felt rather upset at the fact that they have lost so many of the sites for their fairs during the summer months. I know that many travelling showmen have the one site on which they live year after year, from November to March. Their children go to school in that place and I have known of instances where the showmen have left their children with other people who live in the area during the summer months so that they might continue to attend school in the areas to which their parents returned in the winter time. Therefore, I hope that the noble Lord, Lord Lyell, will accept this Amendment, because, as has been said, this is a unique position and if the Bill is not amended in this way it means that there will be discrimination against this one class of people.
§ Lord LYELL
Naturally, I should like first to thank the noble Lord, Lord Brooke of Cumnor, for moving this Amendment so eloquently, and I thank all the other Members of the Committee who have taken part in the debate on this Amendment. I hope I can make it quite clear at the outset that, so far as this Amendment relates to the stationing of any residential caravan which is the home of the showman in his winter quarters, I think the Amendment is not necessary. But the noble Lord, Lord Brooke, has gone considerably further than that in his explanation.
588 In paragraph (b) of subsection (2) of the new Section 90 which is to be inserted into the Act by Clause 1 of the Bill it is provided that a stop notice may not prohibit the use of any land as a site for a caravan which is occupied by any person as his only or his main residence. Of course, for this purpose the word "caravan" has the same meaning as it has for the purposes of Part I of the Caravan Sites and Control of Development Act 1960, to which I think the noble Lord, Lord Brooke, referred. Indeed, I think it may have been his own work when he was in another "incarnation" in another place.
If then a travelling showman were to use a caravan site, as normally his caravan is his only or main residence, he cannot be served with a stop notice in respect of the residential caravan. That is laid down in paragraph (b) in Clause 2(2) of the Bill. The noble Lord has hinted fairly strongly in that direction, and I think the support that has come from the Committee for his Amendment is aimed at trying to secure that the travelling showman should also have specific exemption from stop notice action in respect of his equipment, or, if necessary, in respect of the storage of the equipment on the land which he uses as winter quarters for his residential and home caravan.
Paragraph 10(1) of Schedule 1 to the Caravan Sites and Control of Development Act 1960 already provides an exemption from the need to obtain what is called a site licence for the use of land as a caravan site by a travelling showman in certain circumstances. These circumstances will include such use of the land by the travelling showman, both while travelling—I think that would come into the category explained by the noble Baroness, Lady Bacon—and when he has taken up winter quarters. There is something rather complicated called Class XXII of Schedule 1 to the Town and Country Planning General Development Order 1977. Class XXII grants a general planning permission to use land as a caravan site in certain circumstances where a site licence is not required. This includes the use by travelling showmen. But I am afraid the use of land by travelling showmen as winter quarters is specifically excluded from this general provision, and this is another loophole which has been spelled out by the noble 589 Lord, Lord Brooke. Therefore, no exemption from planning control is currently given to travelling showmen in respect of their winter quarters.
The object of the Bill before us today is to provide local planning authorities with the power to deal quickly with any development which is carried out without planning permission, where that development, or any part of it, is causing problems and it is unacceptable to let it continue during the normal time that enforcement proceedings would take. Certainly an activity which could cause problems in one area may well not cause them in another. Therefore, we think that for this reason it would not be appropriate to prescribe a list of uses or activities in respect of which a stop notice action may or may not be taken. Of course, the problems of travelling showmen should and indeed are considered against this background. Already Members of the Committee will see that the provisions of the Bill provide exemptions from stop notice action. First, nobody can be driven from his home at short notice. Secondly, this same protection is provided to permanent caravan dwellers; this is not holiday or temporary caravan dwellers. The same protection is given to residential dwellers in their houses, and I think that covers caravans. Thirdly, the use of the stop notice procedure is confined to activities commenced in the last 12 months. That is unless the activity involves operations—that would be building or digging or excavation operations—or the depositing of refuse or waste material. I do not think travelling showmen carry out anything of this nature.
I understand it is the case—I have been learning from the contributions of the Committee—that showmen tend to use land as their base not for a continuous period but for five or possibly six months, when the weather is bad and they are not putting on outdoor entertainments in or around cities. I am given to understand that where a showman has used some particular base as his residential area, and with his residential caravan has parked his equipment, his trailers and whatever else he wishes to take with him, when he has used such land for at least the last two winters, he will benefit by the provision in the Bill in exactly the same way as anyone else. We believe that the Amendment would cut across the fairly limited 590 objects of this Bill. I might call them defensive objects, in that the objects of the Bill are to defend outside interests, neighbours, anyone, including the travelling showman. We believe it would be wrong to exempt any particular group of citizens, including the travelling showmen, from the control of the Bill.
In exercising new powers under the Bill, the local planning authorities will need to satisfy themselves that what they have alleged in any enforcement notice or any stop notice is a breach of planning control, is, as a matter of law and as a matter of fact and degree, a breach of control. Otherwise, they could be liable to heavy claims for compensation. We believe that, unless a person is carrying on any activity which is not only in breach of the planning control but is also causing severe damage or nuisance or offence to the amenities of adjoining occupiers, he does not have much to fear from the extension of the stop notice that we are proposing.
The noble Lord, Lord Brooke, spelled out particularly the circumstances in which the travelling showmen go round the country. He thought it might be possible that this Bill would separate showmen from their equipment during the winter. But I wonder whether it is reasonable to attempt to bring into the Bill—and this, I believe, would be the effect of the Amendment—the rules of caravan residence, because I believe it is important also to recognise the rights of neighbours to showmen, who may well have grounds for objection. I take the point that nowhere, in the studies I have made in another place, has misbehavour in specific cases or in general been alleged in respect of travelling showmen. But, nevertheless, we believe at the moment that if this Amendment were to be written into the Bill as it stands it would discriminate in favour of showmen.
The noble Lord, Lord Brooke, believes that the Bill at present discriminates against showmen. We believe that, if the Amendment were written into the Bill, the Bill would then discriminate in favour of showmen. We accept that their behaviour has up to now been good, but we are a little worried that there might be similar pressure from other groups who up till now have not been guilty of any misbehaviour. I have been given the example that other travelling people 591 might be able to use the Amendment to operate other forms of activity which might be a little more objectionable than merely parking travelling caravans and equipment and floats. It is for that reason that I do not feel able to accept immediately the Amendment proposed by the noble Lord, Lord Brooke. I am sorry that I cannot go further than that. I have listened to all the arguments, but I am afraid I cannot promise to accept the Amendment at the moment.
§ Baroness BIRK
May I make a very brief intervention, as time is getting on and the House has other business after this. I think the noble Lord, Lord Lyell, has covered all the ground of the objections to this Amendment, which the Government share with him. I do think it is very difficult to find any justification for providing that people following a particular trade or activity should be set apart and not subject to the same constraints which would be placed on others. I know there is a rather romantic and emotional connotation with travelling showmen.
The noble Lord, Lord Lyell, made it quite clear that the residential use of their caravans was protected and covered. But, when it comes down to the work side of it, they would be no worse off than the scrap dealer who also could have a stop notice put on his work. What is interesting is that in the last four years there has been only one enforcement notice made against a travelling showman. This would seem to indicate that it really is not a problem. They may be worried in advance, but as an enforcement notice must be issued first, before there is any question of a stop notice, this would appear to indicate that they are certainly not at risk, even in the terms stated by the noble Lord, Lord Brooke of Cumnor. It is the development plans that must make positive provision, and I do not believe that this matter should be dealt with by making an exception in this way. Therefore, I hope that the Committee will support the noble Lord, Lord Lyell, in resisting this Amendment.
§ Lord BROOKE of CUMNOR
I am most grateful for the support that I have received from all quarters in the Committee, and also for the care which my noble friend Lord Lyell and the 592 Minister have applied to the debate. However, quite frankly, I am bound to say that in my speech I dealt with and disposed of every one of the points that they made. I had hoped that my noble friend would say that there is something here which needs to be examined. But I am sorry to say that the effect of his speech and that of the noble Baroness, Lady Birk, leads me to think that there is no chance—except by forceful persuasion—of him or the Government taking an entirely fresh look at the matter. If that is indeed the case, having received support from all Parties, I am afraid that I must test the opinion of the Committee by pressing this Amendment to a Division.
§ Lord LYELL
Before the noble Lord takes that step perhaps I could say that I hope I was not needlessly harsh or used needless asperity. I do not know whether the noble Lord definitely feels that he wants to test the opinion of the Committee by pressing this matter to a Division, but I should be prepared to look again at the matter. However, as understand it, the matter has been raised in a similar form in another place. There may be merit in it, but I hope that I spelt out the reasons for wishing to keep the Bill in its present form.
The noble Lord used the word "discrimination". If the Amendment is carried, I believe that there would be discrimination in favour of showmen. That suggestion was supported by the noble Baroness on the Government Front Bench. I would certainly undertake to look at this, but I cannot promise to find anything further—certainly at this stage—which could definitely satisfy the noble Lord, Lord Brooke.
§ Lord BROOKE of CUMNOR
The last thing I want to do is to quarrel with my noble friend or, indeed, with the noble Baroness over this. I am still left with a feeling that the minds of both my noble friend and the Minister are set against this Amendment. It seems to me quite absurd—if I may use that word—to allege that if this Amendment is carried it would discriminate against other types of people. I surely have shown beyond doubt that the Bill, unamended, discriminates against the travelling showman. For that reason, and with time getting on, I must press this to a Division.
§ On Question, Whether the said Amendment (No. 2) shall be agreed to?
§ 5.43 p.m.
§ Lord FOOT moved Amendment No. 3:
Page 2, line 16, at end insert—
("( ) For the purposes of this section where the activity is of a seasonal nature and began more than twelve months earlier it shall be deemed to have begun twelve months earlier even if the activity has not been continuous since it began".)
§ The noble Lord said: I fully appreciate that we have spent quite a long time on this Amendment Bill, and I shall try to be as brief as I can in all these further Amendments. On Amendment No. 3 I think I need say only a few words. As we know, under Clause 1(2) of the Bill we have set out the cases in which the stop notice procedure is not to he used. Unhappily, dealing with the case of the594
§ Their Lordships divided: Contents, 52; Not-Contents, 53.593
|Alexander of Tunis, E.||Dundee, E.||Northchurch, B.|
|Allerton, L.||Eccles, V.||Orr-Ewing, L.|
|Alport, L.||Emmet of Amberley, B.||Pannell, L.|
|Arwyn, L.||Falkland, V.||Porritt, L.|
|Bacon, B.||Foot, L.||Roberthall, L.|
|Banks, L.||Gainford, L.||Rochester, L.|
|Berkeley, B.||Glenkinglas, L.||Ruthven of Freeland, Ly.|
|Bethell, L.||Grey, E.||Selkirk, E.|
|Bledisloe, V.||Hale, L.||Strathspey, L.|
|Blyton, L.||Harmar-Nicholls, L.||Sufficld, L.|
|Boothby, L.||Henley, L.||Swinfen, L.|
|Brooke of Cumnor, L. [Teller.]||Hornsby-Smith, B.||Taylor of Gryfe, L.|
|Brooke of Ystradfellte, B.||Houghton of Sowerby, L.||Thurso, V.|
|Byers, L.||Inglewood, L.||Vickers, B. [Teller.]|
|Cathcart, E.||Mancroft, L.||Vivian, L.|
|Cork and Orrery, E.||Marley, L.||Ward of North Tyneside, B.|
|Cranbrooke, E.||Noel-Buxton, L.||Wigoder, L.|
|de Clifford, L.|
|Abinger, L.||Janner, L.||Paget of Northampton, L.|
|Ampthill, L.||Kilmarnock, L.||Peart, L. (L. Privv Seal)|
|Ardwick, L.||Kirkhill, L.||Phillips, B.|
|Aylestone, L.||Leatherland, L.||Pitt of Hampstead, L.|
|Birk, B.||Lee of Asheridge, B.||Rusholme, L.|
|Bruce of Donington, L.||Llewelyn-Davies of Hastoe, B.||Sandys, L.|
|Caradon, L.||Lloyd of Hampstead, L.||Shepherd, L.|
|Champion, L.||Lovell-Davis, L.||Stedman, B.|
|Clancarty, E.||Lyell, L. [Teller.]||Stewart of Alvechurch, B.|
|Cooper of Stockton Heath, L.||McCluskey, L.||Strabolgi, L.|
|Cullen of Ashbourne, L.||Maelor, L.||Thomson of Monifieth, L.|
|Donaldson of Kingsbridge, L.||Monck, V.||Trefgarne, L.|
|Elwyn-Jones, L. (L. Chancellor.)||Morris, L.||Vaizey, L.|
|Gaitskell, B.||Newall, L.||Wallace of Coslany, L.|
|Gordon-Walker, L.||Northfield, L.||Wilson of Radcliffe, L.|
|Hanworth, V.||Nugent of Guildford, L.||Winterbottom, L.|
|Henderson, L.||Onslow, E. [Teller.]||Wynne-Jones, L.|
|Hylton-Foster, B.||Oram, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ showman, by a majority of one it is still provided that it can be used against them. The people I am concerned with here are the people who use land on a seasonal basis. I hope that it is the intention of the noble Lord, Lord Lyell, and indeed of the Government, that those people, if the seasonal activity began more than 12 months ago, should be protected from the stop procedure. The whole purpose of my Amendment is to ensure that that is made explicit.
§ It may be—and I hope it is the case—that the noble Lord, Lord Lyell, will be able to say that this Amendment is acceptable to him. It is only for the elimination of doubt. The way in which doubt could arise, I suggest, is this. Supposing a seasonal user is prosecuted for failing to obey a stop notice. If the issue then comes before magistrates, I as it will, and the magistrates have then 595 to decide whether it was the intention of Parliament that the seasonal user of land should be protected even if his use had not been continuous, they might be left in doubt as to how they should decide the matter, and it might well be that it would lead to the case going to the divisional court in order that the divisional court could decide what the law was. All that could be eliminated if the noble Lord accepted my Amendment. I beg to move.
I should like to support this Amendment. Let me say at once that this Amendment, together with a number of others which appear on the Marshalled List, has been carefully considered by the people who practise in the courts. I am talking, of course, about the Law Society and their members. Certainly the noble Lord, Lord Foot, has a vast experience in the direction of court usages and magistrates' decisions.
I do not think that anyone will for one moment suggest that an Amendment of this nature can possibly do any damage. After all, the question of a seasonal use is something which can only affect those who are participating in a certain objective and can only act in a particular way at seasonal times. I do not think that one ought to protract the debate on this much longer. I hope that the noble Lord, Lord Lye11, will accept this Amendment.
§ 5.48 p.m.
§ Lord LYELL
I thank the noble Lord, Lord Foot, for moving this Amendment, but I find myself in a little difficulty in that it appears that subsection (2) of the new Section 90 which I am introducing seems to restrict the circumstances in which the stop notice would be served. I hope that that is absolutely right. One of these restrictions seems to be that the stop notice would not prevent the continuation of any activity which began more than 12 months earlier—I think this is covered by the queries raised by the noble Lords, Lord Janner and Lord Foot—unless that activity is incidental to building, engineering, mining, or any other objectionable operations like depositing refuse or waste. I think that the last exclusion in relation to operations of tipping maintains the present position 596 under the existing law, because at the moment stop notices can be served only in respect of such operations and there is no time limit.
I hope I understood it aright when I listened to the noble Lord's brief explanation. The Amendment seems to be based on the assumption that where an activity is not carried out continuously—I think that is what he had in mind and continues to have in mind—then the resumption of that activity after some interval could he interpreted in the divisional court as the beginning of that activity again. I am not a lawyer, and the noble Lords, Lord Foot and Lord Janner, are eminently qualified and experienced solicitors, but from my instructions and from what I can understand of the law the view which we believe is expressed by the Amendment does not run parallel to the accepted interpretation of planning law.
So far as any seasonal use of the land is concerned, then this principle seems apparently to be well established by some case law. There is an authority in the Court of Appeal, which I am told is Webber v MHLG. I do not know whether that rings a bell with the noble Lord, Lord Foot. Certainly I am not well acquainted with the particular circumstances of that case. I understand the decision ran something like this: the intermittent nature of the use of the land is immaterial and where land is used regularly for a period each year for certain purposes—such as caravanning, as we were discussing on the last Amendment—the use of the land for that purpose does not cease when the activity in any one year ceases because the active resumption of its use in the next year does not constitute a material change of use. We want to consider whether the use is immune from enforcement and, to do this, we must consider the first occasion on which the seasonal use commenced and whether that is taken as the date when the use began.
Further, even it it were thought that for the purpose of avoiding doubt there should he some provision in the Bill—this is the opinion of the noble Lords, Lord Foot and Lord Janner—which would state in terms that the 12-months period referred to in Clause 1(2) read, "in the case of intermittent activities from the first date when the activity began", the Amendment would not achieve that object 597 because it appears to be drafted to cover seasonal uses. That might cover, say, the parking of caravans or showmen's equipment, but it would not cover other kinds of non-continuous activities, which might be markets taking place at irregular intervals or, alternatively, objectionable irregular uses such as the burning of car tyres, scrap or the dumping of offensive material, agricultural waste and so on.
By introducing a specific reference to seasonal activities, the Amendment might make worse the position of anybody carrying on other intermittent activities such as I have outlined, because the provision, as we were discussing on the last Amendment, might be interpreted as meaning that the 12-month period does not continue to run except in the case of seasonal activities, and that could exclude the other non-seasonal but irregular activities which I have suggested.
I hope that my reply will not be taken by Lord Foot as being a closed door. I have noted what he said, but I hope that, rather than push it at this stage, he would be willing to meet me to discuss the matter between now and Report. Would he consider that satisfactory? However, I cannot promise him anything at this stage, but Lord Foot and I have had preliminary discussions and perhaps he will allow those to continue.
§ Lord HARMAR-NICHOLLS
I should have thought that the Amendment did precisely what I want it to do, which is to protect the seasonal people. If it does not protect others, as my noble friend Lord Lyell has pointed out, then that is a matter for somebody else to deal with if they have strong feelings about who the others may be. My noble friend seemed to by saying that he did not think it was necessary because in law the point was well established. If ever there was a case where belt and braces were justified, this is one: As the noble Lord, Lord Foot, said, it would make it clearer for those who might have to deal with any differences of view that might arise, and that is always a good thing.
We must face the fact that on this matter the people I have in mind and who I would like to protect under the seasonal argument are those who have to face resistance from tiny minorities in an area 598 often, in my view, for selfish and parochial reasons; they are the sort of people who are likely to push to the ultimate if there is the tiniest chance that the protection is not included in the way we want it to be included.
If the Amendment is not necessary it should still be accepted, because it would not do any harm. Indeed, it could do good in the sense of removing any possible doubt that may exist. If others should be included and given the some protection for other reasons, that is another argument, but that should not delay our giving protection to the seasonal people who, because of their tradition and the contribution they make to the general leisure activities of the country, should be given this protection now.
§ Baroness BIRK
The noble Lord, Lord Lyell, explained absolutely clearly what is in the Bill and why the Amendment is not necessary. The essential feature of the Bill is that if an activity commenced more than 12 months ago it should be immune from a stop notice action, though an enforcement motice may be served and eventually require the activity to cease. Lord Lyell was right when he pointed out that although the Amendment would underline the protection which is implicit in the Bill for seasonal people, it would, by specifying it in the way proposed, leave out people who, say, had a stall every Sunday.
However, as there seems to be some concern because the clause does not specifically state that an activity begun more than 12 months ago does not have to be continuous to secure the protection intended, perhaps the noble Lord, Lord Foot, would agree to my looking at the matter together with Lord Lyell and my officials and return to the subject before Third Reading.
§ Lord FOOT
Those assurances from the noble Lord, Lord Lyell, and the noble Baroness, Lady Birk, are quite good enough for me. I hope the noble Lord, Lord Harmar-Nicholls, will not think that I am deserting the cause when I say that I would rather proceed by consensus than by opposition. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.599
§ 5.57 p.m.
§ Lord FOOT moved Amendment No. 5:
Page 3, line 33, at end insert—
("(10) Any reference in this section to the period allowed for compliance with an enforcement notice is a reference to the period specified in the notice for compliance therewith or such extended period as the local planning authority may allow for compliance with the notice".)
The noble Lord said: I hope it will be convenient for the Committee to consider Amendment No. 6 at the same time. This Amendment does not touch the purposes of the Bill but is concerned simply with the way in which we draw our Statute law. It is rather a technical point and, so that the Committee may know what it is all about, perhaps I should explain that under Clause 1(4)(b) a stop notice ceases to have effect when the period allowed for compliance with the enforcement notice expires. A practitioner who is trying to deal with Section 90, as amended by the Bill, may want to know if there is somewhere in the legislation a definition of the meaning of the words:
… the period allowed for compliance with an enforcement notice".
What is this period? If he wants to know that, then I am afraid that the practitioner and the layman will look in vain at Section 90, as it will appear in the Statute as amended by this Bill, to find the meaning of those words. The reason is that the only definition of those words is contained in the preceding provision, Section 89, and that deals with something quite different from stop notices; it deals with the penalties which attach to people who fail to comply with an enforcement notice, and that is the only place in the Act, if it is amended in this way, in which the definition of those words will appear.
All I am suggesting is that there should be attached at the end of Section 90 precisely the same words of definition as I have quoted and as are attached at the end of Section 29. This will involve a repetition of the same words and the words which I am asking to be repeated are those which are contained in the Amendment. The reason why I suggest that this should happen is that, if we dealt with the matter as the Bill proposes, we should deal with it differently: instead of repeating the definition at the end of new Section 90, we should attempt to do it as the Bill does in Clause 2(2). This subsection provides that,
In section 89(6) of the Town and Country Planning Act 1971 (which explains references in the section to the period allowed for compliance with an enforcement notice) after the words 'this section' there shall be inserted the words 'or section 90 of this Act'.
This was a point that was raised by my honourable friend the Member for the Isle of Wight, Mr. Ross, in the other place. He received a very unsatisfactory answer. I shall not worry your Lordship by quoting it but it was really no answer at all. The point, put in its simplest terms is this: if we amend the Act as the Bill proposes, when anybody, layman or practitioner, comes to look at Section 90 to see what is its effect so far as stop notices are concerned, he will find no definition there of the words,
The period during which an enforcement notice applies".
He will probably then go to the interpretation section of the Act hoping to find a definition there, but he will look in vain. Then, I do not know what he will do, but he may go back to the original paragraphs of the main Act which deal with the way in which the Bill is arranged. He will not find an answer there. The last thing that will occur to his mind is that he may find a definition tagged on to the end of Section 89, which is the immediately proceeding section and one which has nothing to do with the matters with which Section 90 is concerned. So this is purely a matter of the way in which we draft legislation.
§ It was said, in art attempted answer in the other place, that this would cause no difficulty to practitioners who were well used to this sort of thing. In my submission, that is probably completely false. It may well be that when the 1971 Act, as amended by the present Bill, gets into Halsbury's Statutes there will be a little annotation under Section 90 referring the reader back to Section 89 to find the definition. That may enable the practitioner who does not overlook the annotation to get it right, but what about the layman who has nothing but the Bill itself, with no annotation? He may spend hours vainly trying to find the definition which I am suggesting should be set out afresh. There is no objection that I know of to repeating a definition in two sections of an Act if it is necessary to make it clear what the Act is about. I beg to move.601
I think I shall be making the shortest speech ever made in Committee or at any other stage in this House. As a solicitor, I want to say that I concur with all that has been said.
§ Lord LYELL
As a non-solicitor and a layman, may I say that I, too, find it exceedingly hard to follow the type of case outlined by the noble Lord, Lord Foot, supported by the noble Lord, Lord Janner. Yet I find that in almost every Bill or Act that I come across nothing is ever made quite easy. I do not say that this is an excuse for retaining the Bill, or the Act as it will be amended, in its present form, but I do wonder whether the noble Lord or the Committee would wish to have what might be taken as needless repetition included in the Bill. I take the point that the noble Lord, Lord Foot, who is a practitioner, makes, that he would normally look in the definition clause and would not find this. But the new revision to what he referred to as Clause 2(2) hut which I believe should be Clause 1(2) says:There shall be inserted the words 'or section 90 of this Act'.Would the noble Lord not agree that the Amendment that Clause 1(2) will make to the Act applies to Section 90 as well as to Section 89? I take the point that the noble Lord is referring to Section 89(6) and it seems that the new subsection which the noble Lord is proposing is drafted in exactly the same terms as Section 89(6). As the noble Lord pointed out, this deals with penalties for enforcement. Clause 1(2) seems to amend Section 89(6) of the Act so as to refer not only to that section but also to Section 90.
It appears that the Amendment would insert a new subsection into the new Act and I take it that the next Amendment of the noble Lord would delete the existing subsection and so avoid making nonsense. The effect of the Amendment proposed by the noble Lord appears to be to provide completely separate and identical definitions of references to the period for compliance in both Sections 89 and 90 instead of the single definition proposed in my Bill which would appear only in Section 90.
I wonder whether the noble Lord would agree that the need for a definition in the Bill of the period for compliance with a 602 notice arises from the fact that it is subsection (4)(b) of the new Section 90 of the 1971 Act that provides for the stop notice to cease to have effect at the end of this period. I believe that that is its effect. Certainly, as the local planning authorities already have powers under Section 89(6) to extend the period, we wonder whether it is not reasonable that, during any extension of that period, the prohibition under a stop notice shall continue. We hope that that would be reasonable.
Certainly, from a layman's point of view, however, it might be convenient to have two identical explanations and definitions in adjacent sections of the Act. Perhaps I may consider this matter because I was under the impression that it might be unduly repetitive to do this, whereas perhaps one might be able to insert this definition clause where the noble Lord, Lord Foot, has suggested. I cannot promise anything, but it certainly seems to me that we should be cluttering up the Bill and hence the Act if we accepted the noble Lord's Amendment without further thought.
§ Baroness BIRK
In view of what has been said by the noble Lord, Lord Foot, and my noble friend Lord Janner, I feel that the noble Lord, Lord Lyell, is quite right to take this back for further discussion. This is really concerned with drafting and definition and is not a point of substance, and I do not believe that we should delay the Committee. On the other hand, this should not be turned down out of hand. If the noble Lord, Lord Foot, will accept the assurance, the matter can be discussed with my Department and it can probably be sorted out in that way.
§ Lord FOOT
I am much obliged for that intervention because it enables me to withdraw the Amendment and reconsider it for the next stage. I should like to make it perfectly plain in one sentence to the noble Lord, Lord Lyell, that my Amendment would make no difference whatever to the meaning of the Bill. If it were substituted for the words which are now in subsection (2), the effect would be exactly the same. I have no intention of trying to injure the Bill. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 agreed to.603
§ Clause 3 [Power to require information]:
§ 6.10 p.m.
Lord FOOT moved Amendment No. 7:
Page 5, line 15, at end insert ("unless the use began before the first day of January 1964").
§ The noble Lord said: With the leave of the Committee, I think that it would be convenient to take Amendments Nos. 7 and 8 together. This, too, is a matter which can be dealt with very briefly. Under Clause 3 of the Bill the information which the Secretary of State or a local planning authority can require an individual to give in connection with planning permissions and so on has been extended.
There was a provision under Section 284 of the 1971 Act which entitled the Secretary of State or the local planning authority to call for various information. This provision extends the area of information for which the Secretary of State or the local planning authority can ask. I am all in favour of the change contained in the Bill. I think that it is perfectly reasonable, and there is only one way in which I question its need. I should like to draw the attention of Members of the Committee to subsection (3)(d) and (f), on page 5 of the Bill, from which it will be seen that new matters have been added to those upon which the Secretary of State or the local planning authority can require information. Under paragraph (d) information can be requested as to the time when a certain use began, and under paragraph (f) information can be requested as to the time,
… when any activities being carried out on the premises began".
That is something new, and is probably perfectly reasonable.
§ But under Section 87 of the 1971 Act an enforcement notice and a fortiori a stop notice can be given only where there are breaches of a planning control after the end of 1973; in other words, if you have been doing something, in breach of planning control in the period to 31st December 1963 nobody can issue an enforcement notice or a stop notice. All I seek to do in my Amendment is to make it clear that the authority which is asking for information can ask for information as to the time when an activity or use began only if it began after 1st January 1964. An inquiry about when an activity began prior to that date is perfectly pointless 604 because nobody can issue an enforcement notice to prevent it. Therefore I am seeking only to limit the matters on which an individual applicant can be asked to give information.
§ It could be a very difficult task if it was open to a local planning authority to ask an owner or tenant of land to go back to try to find out when a particular activity began. He may have had many predecessors in title, or the use may have begun years and years ago. What is the point of asking him to go back beyond 1964? It would be quite pointless to ask for such information. Therefore this is a purely formal Amendment, and I hope that at the very least the noble Lord, Lord Lyell, will say that this is one of those Amendments that he is prepared to consider further.
§ Lord LYELL
I thank the noble Lord, Lord Foot. He has spelled out this brace of Amendments and he declares them to be fairly formal. I would agree with him when he says that it would be extremely difficult for someone who has been carrying out an activity to remember with certainty when he began, or indeed what happened before he began the activity. But I wonder why the noble Lord chose the date of 1st January 1964. I think that he mentioned 31st December 1963, and I think that before 1968 an enforcement notice had to be served within four years of the date of carrying out unauthorised development. Would that be the reason why he has taken 1964?
§ Lord LYELL
Would I be right in thinking that the problem which the noble Lord, Lord Foot, describes involves a question of human memory, of remembering, or indeed of keeping records that far back?
§ Lord FOOT
The noble Lord has not got it quite right. If an activity began before the end of 1963, I am saying that there is no point in asking when it began, 605 or in asking an applicant to go back and try to find out when it began, because an enforcement notice to stop it cannot be issued in any case.
§ Lord LYELL
I take that point—at least I think I take it. But what I understand is that when a local authority wishes to obtain any information which is referred to in either paragraphs (d) or (f), regarding the time when a particular use began or the time when any activities now being carried out on the premises or land began, in practice the local authority would not ask the current user of the land to go back further than his actual use of the land, or indeed—
§ Lord HARMAR-NICHOLLS
May I say something on this matter? I have had recent personal experience which does not conform with that. I think that the noble Lord, Lord Foot, is absolutely right. If the words remain as they are here, it would mean that the date when the activity was started would have to be inserted. There is protection already under which one is protected in whatever one is doing from the end of 1963. But to ask someone to set down the time when an activity was started before that date would do nothing but create some kind of complexity. If power is given for this question to be asked in relation to the period before 1st January 1964, it would open up the doubt about title and about whether people know what they are doing, and although people are protected, they would very likely be able to have that protection only after much litigation and questioning, which would be quite unnecessary.
I would strongly recommend my noble friend in this instance to make the matter tidy. The protection is there from the end of 1963. This is saying merely that, since the protection is there, one ought not to have to answer questions relating to before that date. It would he similar to the situation relating to one's driving licence, where one states "over 21". It gives one the kind of protection one wants without adding to the complexity. I have just been in the middle of this kind of matter over the past two months, and I am afraid that the situation does not work in quite the purest way that my noble friend seems to have in mind.
§ Lord LYELL
I, too, am in the middle, from behind, and I find the matter a little complicated and difficult. I hope that the noble Lord, Lord Foot, will accept that I am getting it right. There is no point in asking about a period before 1st January 1964, and I understand that in practice this does not occur. If power existed here under paragraphs (d) and (f) I, understand that if the user of the land were able to give fairly reasonable proof that he was carrying on the activities in 1963, the local authority would be satisfied.
I take the point of my noble friend Lord Harmar-Nicholls, but I was also given to understand that the question of practicalities extended to the local authority being absolutely reasonable in asking a current user of land. Furthermore, when the user is carrying out certain activities, if this user could say: "I began in 1968, and before that there was someone else; it was, I cannot remember who", or it was a certain identifiable man who might even not exist or might have moved, I understand that local authorities may have power, but I believe they are unlikely to use this power and will not use it, as the noble Lord said earlier, oppressively against the current user; that is, they would not expect something which is totally unreasonable.
§ Lord FOOT
I regret to say that I am afraid the noble Lord has still got it wrong. The situation is this. Up to this moment—indeed, up to this Bill reaching the Statute Book, assuming that it does—there have never been any rights in the Secretary of State or the local planning authority to require individuals to give information about how long ago a particular user began. There has not been that right. Therefore, it is no good the noble Lord saying he believes that as a matter of practice the local authorities do not ask for this information or have not asked for this information, or have asked only for information which is available to the present occupier of the premises. It is no good saying that, because it has not been the law of the land up till now.
What is being done by this Bill is that when the local planning authority or the Secretary of State is seeking information about a planning matter, then under this provision they can, for the first time, 607 go to the present occupier or to the present owner and say to him: "We want you to tell us when this user began (not your user but this user, whatever it may be)"—it may be something which has been done for generations of time—"or when this activity began; not when you started, but when anybody started". What we are saying is that there is absolutely no point in throwing that very heavy burden, as it may be, upon the individual, to search back into the last century to see when something started. It may be absolutely pointless to ask him, because you cannot issue an enforcement notice to stop it as long as it began before the 1st January 1964. So I hope that the noble Lord will say to me—he has been very good up till now—"This is another one we will talk about", because, if not, really I ought to carry this to a Division. There is nothing wrong with this at all. No injury is done to the noble Lord's Bill.
§ Lord LYELL
May I just say that I will consider this. The noble Lord has been kind and said that I have been very good, but the noble Lord, Lord Foot, has spoken for, I should think, three-quarters of the time that we have been discussing this Bill. I realise he has points, but I think that we must push on. I will promise to look at this point, which is very simple. I take the point. Certainly I am not going to slam the door, or even bring it to within one inch of being shut. I will leave the door open, but I should like to look at this point. I have a fairly thick bundle here containing reasons why it is believed that, if the noble Lord's Amendment were made to the Bill, it would make it impractical or might damage the Bill, but I certainly do not want to enlarge upon these reasons at this hour. I will look at this with efficacity, with speed, and, I hope, with clarity and reason.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ Lord HARMAR-NICHOLLS
Reverting to the discussion between the noble Lord and my noble friend, I can under- 608 stand wanting to get on—speed, time for second thoughts and all that sort of thing; I know the urgency—but in relation to the last Amendment, which has been withdrawn, I hope that when the discussions do take place the common sense of what has just been argued by the noble Lord, Lord Foot, will be taken into account. One way of saving time, sometimes, is to accept the obvious, and it is a pity, perhaps, that that has not been borne in mind more in this case.
§ Lord LYELL
If my noble friend Lord Harmar-Nicholls would accept everything that was obvious, then he and I, I am quite sure, would work wonders in the courts of law.
§ Clause 3 agreed to.
§ 6.26 p.m.
Lord FOOT moved Amendment No. 9:
After Clause 3, insert the following new clause:
§ Appeals against planning decisions
§ .—(1) Sections 36 and 37 of the Town and Country Planning Act 1971 (dealing respectively with appeals against planning decisions and appeal in default of planning decision) shall be amended as follows:—
§ (2) In subsection (1) of each section after the words "required under a development order" there shall be inserted the words "or pursuant to a condition imposed on the grant of a planning permission".
§ The noble Lord said: This is an attempt to use the opportunity of this Bill passing through Parliament to make yet a further amendment to the Town and Country Planning Act 1971. Because of the late hour, I am not going to do as I originally intended; that is, to try to tell the Committee what this Amendment would do, because I believe it may be that the only objection that the noble Lord, Lord Lyell, or even the Minister, has to it is that they think that the amendment which I am proposing to the Town and Country Planning Act by means of this Amendment is not strictly relevant to the matter of stop notices and information.
§ I cannot accept that as a reasonable argument at all. I believe that if we came 609 to argue the merits of this matter it would be universally agreed that something has been omitted from the planning laws for very many years which ought to be included; that is to say, to put it in the briefest terms, that there ought to be a right of appeal. If the planning authority, in considering a planning application, imposes a condition which the applicant finds unacceptable, then in certain cases—and I will content myself with saying that—as a matter of law there is no appeal against some of the conditions which can be imposed. It is a very odd thing that it should be so, and all I want to do is to amend the law in order to remedy that situation. When I first heard it said that it was thought inappropriate to include this in the Bill, I thought there was some substance in that; but on reflection it seemed to be an extraordinarily odd thing that, when you have a Bill going through this House called the Town and Country Planning (Amendment) Bill, the whole object of which is to amend the 1971 Act in various respects, it should be called out of order or inappropriate for me to move an amendment of the Town and Country Planning Act 1971.
§ It seems a little illogical that we should not be allowed to do that; and if that is the attitude which is eventually taken to this proposal, if it turns out that there is no controversy about what is proposed here in substance and if everybody is agreed that this is something which ought to be done, then, if it is not accepted now, at the next stage of the Bill I shall certainly carry it to a Division. Because if we do not put this error right now, it may be many years before we have the opportunity to correct what has for a long time been an omission from the planning laws. I beg to move.
§ Lord LYELL
I was grateful to the noble Lord for being very brief and succinct in moving this Amendment. Indeed, I understood that his Amendment was outside what I may call the law of relevance to this Bill. I had in mind the cry of many of the characters that I remember reading about in my schoolboy comics, "Why pick on me, on this Bill?" I do not know whether it is usual when one has a small Bill which is limited in scope; namely, trying to remedy certain defects in the planning laws in one limited aspect. I accept what the noble Lord, Lord Foot, 610 has said, that it may be a certain amount of time before one will get another opportunity to alter or amend certain other and, I think he would agree, different defects from those that this Bill seeks to remedy. If that opportunity was taken now, I think that this Bill would or could become unwieldy and inaccurate.
I am not a lawyer. I think that probably the noble Lord, Lord Foot, and I could have an argument as to what would be the effect on this Bill and whether the Bill should be altered so far as it affects the 1971 Act. Certainly, in studying the noble Lord's Amendment, the impression I have is that it is not strictly, or, indeed, very closely, linked to the purposes of the Bill before us. I do not know the usual practice in this House with regard to Bills of this kind which are of limited application and which are designed to be so.
Many things can happen in the course of the Bill's passage through this House. We can refine this Bill but I wonder whether it is not taking a large hammer—I was about to say a sledge hammer—to crack the small nut of these stop notice problems and to spread its impact over to appeals against planning decisions. That is the rubric of the noble Lord's new clause. I accept and applaud his willingness to use this opportunity of improving and benefiting the community by any changes which might be deemed necessary in the existing Act; but I would ask him to consider the point of his argument once again. He said that when he set out to consider this Bill on Second Reading or at an earlier stage he was veering towards agreement that his Amendment was beyond the relevance of the strictly limited aspects of this Bill.
I am sorry that the noble Lord has spoken in that way. This is a very relevant and extremely important matter. With the greatest respect to him, the matter that is being raised at the moment by the noble Lord, Lord Foot, is something which has to be taken into consideration as soon as possible. As a member of some 30 or 40 years of the consolidating committee I am speaking now on the argument, as I understand it, against having this put into the Bill. Incidentally, the Title of the Bill admits this. This is relating to a section of the Bill which we have to consider.
611 The argument that it should be left over or inserted in some other Bill is, in my view, not a proper one. It is important to give opportunity to appeal to a person who is affected by a step which is taken subsequent to the original step. That that person should not have the right to appeal against the decision, in my view, is quite wrong. I think this is a case when we should use this opportunity—and it is an opportunity—to see to it that that position is remedied. There is a very easy way of dealing with the matter later on. There can be a consolidated Bill, of course, but one is not entitled in a consolidation committee to introduce new legislation. There are certain rights to eliminate obsolete Acts or portions of Acts and to deal with ambiguous positions. But this is not an ambiguity; it is a definite proposal. I know that it is very late and I see that my noble friend, with whom I almost invariably agree, is getting a little impatient. But it must be remembered that I did make a very short speech a few moments ago and I am not proposing to speak much longer.
I hope that the noble Lord will consider this matter, if not at this stage then at the next stage. It is important because otherwise we are giving an opportunity for conditions to be made against which there can be no appeal. In my view, that is entirely wrong. Let me say that from the point of view of the Law Society, which has the practical experience in all these matters, it is entirely wrong.
§ Baroness BIRK
May I intervene at this point? I should like to say that I was not getting impatient with my noble friend. I was conscious of the amount of business afterwards, of my colleagues in the House waiting to get on with the next business and that this is a very complicated matter. I think that I must point out that, if this Amendment were carried, it would entail a change of the Long Title. One cannot say that it is not an extension of this Bill; it would be an extension of this Bill. As my noble friend knows, there have been discussions with the Law Society on this point and for some time the Government have been considering legislation in this area—not by way of consolidation, where, of course, he is absolutely correct.
612 May I suggest again that this is highly complicated. Quite frankly I do not think that one can do it justice at this moment and this should be discussed again. It does involve the extension of the Long Title. I suggest that the noble Lord, Lord Foot, at this stage might agree to take it back and again discuss the possibilities. If he is not convinced by our arguments that it should not be in this Bill, he has the opportunity to bring it forward at the next stage.
§ The Earl of KINNOULL
May I ask a question or two of the noble Lord, Lord Foot, before he either withdraws or presses his Amendment? He was so precise in his description of its purposes and it is one which certainly interests me. I only assume that what it is doing is giving a right of appeal for those who receive a conditional planning consent when normally no appeal would be allowed. I presume that that is the simple point. May I ask, first, whether there is any widespread support for this point; and, secondly, whether it is really as complicated as the noble Baroness has suggested?—because the wording of the Amendment seems very precise. Thirdly, if it is a question of adding to my noble friend's Bill—and I have great sympathy with my noble friend on this issue—is the question of simply changing the Long Title something so awful to contemplate if it is merely adding one clause which does not affect the rest of the Bill?
§ Lord HARMAR-NICHOLLS
Is it not purely Parliamentary tactics that are involved here? I have a great deal of sympathy with my noble friend and particularly within the hearing of the sponsor of the Bill in another place. When you are bringing in a Bill of this kind you want to get it through. Certain agreements have been made, with certain nuances, to show the likely support you will get from both sides to get it through. Therefore you are reluctant to accept alterations for fear that you might lose the support which you have got in order to get the Bill through. Here is a change which is merited and sound and, I think, generally accepted.
The question is whether the Government are prepared to look with sympathy at this point and not to withdraw their support for getting this Bill on to the Statute Book if eventually it is accepted. If they can 613 give an indication that their sympathy is such that they will allow the Bill, as it has been more or less agreed, one gathers, to become an Act, then the extension of the Long Title does not really matter. But if the indications are that, by adding this, support would be lost and the Bill would not become an Act, then my sympathy would be for my noble friend and I would consider it unreasonable to expect him to accept the Amendment. The noble Baroness is never impatient. If she could give us an indication that if eventually they find words that can be agreed upon, it will not interfere with the acceptance of the Bill as it would stand amended, I think that that is all that is wanted at this stage.
§ 6.40 p.m.
§ Baroness BIRK
I can assure the noble Lord that we want this Bill just as much as the noble Lord, Lord Lyell. Our reservations concern—and here I am getting into the realm of higher legal argument, so I cannot be relied on on this—whether this clause is appropriate in this Bill; not whether the clause is wrong in substance but whether this is the legislative home in which it should be. I do not pretend, at this stage, that I could honestly argue that out to the satisfaction of the Committee, either to the noble Lord, Lord Foot, or my colleagues. The noble Lord, Lord Foot, agrees that this Amendment should be withdrawn. If he can convince those who are better informed and specialised than I am that this has a place in the Bill and will add to it, I am sure that the Government will accept it.
The arguments that I have had before me and the advice that I have had—I am being absolutely frank—is that it is not right in this Bill. This is why it is important that there should be further discussions with experts and not just across the Floor of the House. This is why I have asked the noble Lord, Lord Foot, to withdraw the Amendment and the noble Lord, Lord Lyell, has also agreed.
§ Lord LYELL
I would accept far more the force of the argument of the noble Lord, Lord Foot, if it were possible to convince the Committee—the non-lawyers among us, because this has, apart from my noble friend Lord Harmar-Nicholls and myself, been a legal argument—on this matter. Is the noble Lord, Lord Foot, convinced that the Amendments to 614 Sections 36 and 37 of the Act that we are discussing are relevant to the tiny Amendments that my Bill is attempting to make to Sections 89 and 90?
I accept that there could be a glimmer of hope, a possible small reason, for amending the Act in so far as another section of the Act affected Section 90. Such a movement as suggested by the noble Lord, Lord Foot, could cripple this Bill, and I believe the Bill is desirable and fairly simple. It could make the Bill far too complicated, and this would defeat the objects of it, and I hope 95 per cent. of the Bill is sound. I agree that your Lordships' House should not be bound necessarily by the procedure in another place; what we want to do in the House at all times is get the Bill right. I hope that we can do that both in Committee and on Report stage.
In your Lordships' House we can make amendments and discuss them right up to Third Reading. That is what I should like to do. My noble friend Lord Harmar-Nicholls indicated that there is a desire to put this simple Bill onto the Statute Book. All of us would be failing in our duty if we allowed the Bill to go on in a crude form and it could be conclusively shown that the Bill was unsatisfactory. I am not absolutely and entirely convinced that the Bill is totally unsatisfactory at the moment and I hope that we can take the rough edges off it now and at a later stage.
§ 6.44 p.m.
§ Lord FOOT
This I hope is the end. May I say to the noble Earl, Lord Kinnoull, that I should like to tell him what the substance of my Amendments is, but I do not think that would be a very helpful course or satisfactory to the rest of the Committee at this hour of the night. I assure him that, as a matter of fact, the substance of the Amendments is entirely good and something to which nobody could take any reasonable objection. We are therefore simply involved in the question as to whether this is an appropriate vehicle for making this Amendment.
I will only ask the noble Lord, Lord Lyell this question: if you also amend the Town and Country Planning Act 1971 can you think of any more appropriate vehicle to do it in than a Town and 615 Country Planning (Amendment) Bill? It is not right for him to say that his Bill is limited only to the amendment of Sections 90 or 91; he is amending Section 284, the section about information, extensively. Those matters are very tenuously related, if at all. I can see no objections, as has been said, to including this Amendment in this Bill. If needs be, let us alter the heading and go ahead from there.
If I was more arrogant than I am, I would say that it has been chastening for the past hour or so to be told continually and repeatedly that what I have had to say in this Committee has failed to convince either the noble Lord who sponsors this Bill or the Government, but that if I could engage in private conversations later, I might be able to put the matter to them more coherently and persuasively than I have been able to do on the Floor of the House. I am grateful, nevertheless, to the noble Baroness and the noble Lord, Lord Lyell, for the "give" which they have made. I look forward to engaging in these negotiations. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Remaining clause agreed to.
§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Alport)
The Question is that I report the Bill to the House without Amendment As many as are of that opinion will say, "Content". To the contrary, "Not-Content" The "Contents" have it.
§ Baroness BIRK
On a point of Order, the Deputy Chairman of Committees said, "without Amendment". The Bill has been amended.
§ Lord LYELL
No, I do not think so. I think we called it a tied vote. I think that the Bill is in its present form. I think that the Deputy Chairman of Committees is correct.
§ Baroness BIRK
I beg your Lordships' pardon: I withdraw.
House resumed: Bill reported without Amendment.