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Mr. Clifton-Brown: We start on a good note. I am pleased to see that the Government have given due weight to the sensible suggestion of my hon. Friend the Member for Spelthorne, which has given rise to new clause 4. That is why we, the official Opposition, have co-signed the Government's amendment in that respect and are pleased that they have taken notice. If a development has started and planning permission is subsequently revoked, it is eminently sensible that it should be possible for it to continue. Otherwise one would have the absurd situation whereby a development that was halfway through would have to be stopped and might remain derelict for many years.
We also welcome amendment No. 6, which will have the opposite effect. If the development has started and planning permission is subsequently revoked, one would not expect compensation to be paid. We also welcome the consequential amendment No. 5, and amendments Nos. 31 and 32.
I have one question for the Minister on the new clause. He says that the purpose of local development orders is to allow the local planning authority to permit a class of development. In other words, they would expand the existing permission under the 1995 order, but can a local development order be used to restrict the rights under that order? My hon. Friend the Member for Isle of Wight (Mr. Turner) has tabled an amendment in relation to agricultural subdivisions, although we are not discussing that now—I merely use it as an example and do not want to get on to that debate. However, there is a problem with issuing article 4 directions to restrict the 1995 order, so it would be useful to know whether local authorities could use the relevant mechanism to restrict a class of permitted development rights as well as expand it.
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Matthew Green: I welcome the new clause and the four amendments. It was welcome that the hon. Member for Spelthorne spotted the point in question during our previous proceedings—I think that it was one of the few occasions on which he did not mention terminal 5 at Heathrow and we were probably grateful for that at the time. However, he was right to raise the issue and the Government were right to bring it forward. The provisions deal with an anomaly that would have existed in the Bill in its original form, so I am glad to see them.
Sir Sydney Chapman: I want to raise one point. Incidentally, perhaps it would be appropriate to declare at the outset what I perceive to be inverted interests. I am member of the Royal Institute of British Architects and a fellow of the Royal Town Planning Institute, although I have just applied for retired status in both august bodies. I am an honorary member of the Royal Institution of Chartered Surveyors, the Landscape Institute and a few others that do not regularly come to mind, but I shall put them down on a piece of paper if necessary. I do not think that those are declarable interests because I used to pay to belong to the Royal Institute of British Architects and the Royal Town Planning Institute—I wished that it was the other way round, but it never was.
It is obvious that I am not a lawyer, but, even if the Bill is technically correct, I am worried, as a layman, about proposed new section 61D(1), which new clause 4 will insert in the principal Act. It states:
''A development order or local development order may include provision permitting the completion of development''.
I agree with what the Minister is trying to do and I supported my hon. Friend the Member for Spelthorne when he first raised the issue in Committee, but surely the subsection should state that a relevant order must, rather than may, include provision permitting the completion of development.
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The word ''may'', which would leave the option to the local planning authority, would not be satisfactory. Some planning authorities might, for political reasons, not want a development to be permitted even though it had started. I should be grateful if the Minister could look into that point and reassure me that t every planning authority would have an obligation to allow such developments to be completed once they had been started.
Mr. Andrew Turner (Isle of Wight): Unlike my hon. Friends and the hon. Member for Ludlow, I have a little difficulty with the new clause, because I do not understand it. That might in some circumstances be regarded as a reason to shut up, but I should like to go through the provision so that the Minister can explain whether I have understood it correctly.
Subsection (1) of the proposed new section 61D states:
''A development order . . . may include provision permitting the completion of the development''.
Subsection (2), however, states:
''Planning permission granted by a development order is withdrawn—
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(a) if the order is revoked''.
Does that include the planning permission covered by subsection (1), enabling the development to be completed? A normal reading of subsection (2) would be that if the order were revoked and planning permission were withdrawn that would include the permission to complete the development after the order was revoked.
Keith Hill: I am sure that the Committee will be fascinated by the expression ''inverted interests'', used by my erstwhile fellow Barnetonian the hon. Member for Chipping Barnet—an idea that presents great opportunities for speculation. In the course of our proceedings it will become obvious that, like him, I am not a lawyer.
It seems to me that all the hon. Members who have spoken have raised essentially the same matter. The hon. Member for Cotswold asked whether a local development order could be used to restrict a class of developments, and the answer is yes. The hon. Members for Chipping Barnet and for Isle of Wight raised questions about the completion of a project once it had been started. Once a development has commenced, the developer will of course have the right to complete it. That is clear. Issues arise, of course, about the definition of ''started'', and those are dealt with in section 56 of the Town and Country Planning Act 1990.
It would be for the local planning authority to decide whether development had started in a particular case. For example, a development of 20 units might have been started, but work might have begun on only five units. The question then is: would the entire development retain its permission, or would permission be granted only for the five units where development had started? In the first instance, that will be for local planning authorities to decide. Ultimately, however, it will be for the courts to determine permission in the light of particular circumstances. The long and short of it is that a developer who has lawfully commenced the work has the lawful right to complete it, provided that there is clear agreement about the extent of the development. The local planning authority could exert some rights if, for example, the work was to be carried out over a period of time in a series of stages involving a different set of units. That seems to be to be a reasonable proposition in the context of the rights of local planning authorities and the local democratic process.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
Mr. Clifton-Brown: On a point of order, Mr. Hurst. I must apologise to the Committee because, as my hon. Friend the Member for Chipping Barnet has reminded me, I failed to declare my interests. I am a fellow of the Royal Institution of Chartered Surveyors and practised as a planning surveyor, among other things. I also have properties, which are declared in the Register of Members' Interests. Those properties are not currently covered by the Bill, but they could be at some point in the future.
The Chairman: The Committee will be grateful to the hon. Gentleman.
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New clause 5
Crown
Brought up, and read the First time.
Keith Hill: I beg to move, That the clause be read a Second time.The Chairman: With this it will be convenient to discuss the following:
Government new clause 6—Crown application of planning Acts.
Government new clause 14—Crown application: transitional.
Government new clause 16—Subordinate legislation.
Government new clause 41—Crown application of Scottish planning Acts.
Government new clause 45—Subordinate legislation: Scotland.
Government new schedule 1—Crown application.
Government new schedule 2—Transitional provisions: Crown application.
Government new schedule 3—Crown application: Scotland.
Government amendments Nos. 53 to 55
Government amendments Nos. 330 to 332
Government amendment No. 334.
Government amendment No. 336.
Keith Hill: We are about to embark on a series of debates on 21 new clauses, three new schedules and 10 other amendments, all of which deal with the Crown's immunity under the planning Acts. Before we do so, and with your permission, Mr. Hurst, it might be helpful if I again give some of the background to the proposals.
As members of the Committee will know, legislation does not bind the Crown unless there is express provision for it to do so. A series of court decisions have confirmed that the planning Acts do not bind the Crown. There is also a policy, which Administrations of all political persuasions follow, that Crown immunity should be removed where it is unnecessary. Hon. Members may recall, for example, that Crown immunity was removed from the national health service in 1991.
The fact that the planning Acts do not bind the Crown does not mean that development by the Crown is unregulated. Such proposed development follows the procedures in DOE circular 18/84, under which the Crown submits a notice of proposed development to the local planning authority instead of a planning application. That notice is treated in a similar way to a planning application in that it is advertised and entered on to the register. The Crown can go ahead with the proposed development if the local planning authority is content with it. If it is not, the dispute is referred to the First Secretary of State for his determination. In large cases, this is usually done
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following a non-statutory public inquiry, which is governed by the spirit of the usual inquiry procedure rules and which results in an inspector's report and a decision by the Secretary of State similar to that following a recovered appeal.
I shall now return to the policy of ending Crown immunity. In 1992, the Government issued a consultation paper on the removal of Crown immunity from planning law. The outcome of the consultation on that paper was a ministerial announcement in 1994 that the Crown's immunity from planning control would be removed as soon as a suitable legislative opportunity arose. That was endorsed by the present Government in 1998 in response to a parliamentary question.
New clause 5 heads a large group dealing with the mechanics of bringing the Crown inside the scope of planning legislation; it provides that the Bill will bind the Crown. New clause 6 provides that the existing planning Acts will henceforth bind the Crown. I shall talk briefly about new schedule 1, which is introduced by new clause 6 with Government amendments Nos. 53 to 55. It deals with the adjustments to the planning Acts that will be required to accommodate the Crown, and the necessary repeals.
The next topic will be the transitional provisions from the non-statutory to the statutory scheme, set out in new clause 14 and new schedule 2. I shall end with new clause 16, which provides the means for existing subordinate legislation to bind the Crown. That might be some way off, however, for I have much still to explain to the Committee.
The provisions in new clause 5 are pretty straightforward. In subsection (1), ''This Act'' means the Bill when it is enacted, if that is Parliament's will. The exclusion regarding part 7 and the proviso in subsection (2) are an aid to interpretation, in that we are removing Crown immunity from planning legislation, and part 7 deals with compulsory purchase. Compulsory purchase by the Crown is similar to compulsory purchase by local authorities and others. However, we thought that such clarification would make it certain that applying the Act to the Crown did not cut across the application of any other legislation. The Crown has immunity from compulsory purchase orders under the planning Acts, and it is intended that it will retain it.
New clause 6 is at the heart of the Crown immunity amendments. The reason for legislating is that the planning Acts do not bind the Crown, and it provides that they will do so in future. As proposed new section 292A(1) says:
''This Act binds the Crown.''
Some might say that that is sufficient. If we could have stopped there, we would have done. Alas, life is rarely as simple as that, and we have had to go further. Although the Crown will have to obtain planning permission, listed building consent and hazardous substances consent in the normal way, it still requires special provision for enforcement, national security and urgent development. We shall deal with all three elements in detail later, but new clause 6 includes some elements of the enforcement regime. Because the
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principal Act, the Town and Country Planning Act 1990 as amended, is so large and complex—it has 337 clauses and 17 schedules—we decided to adopt a more general approach. That is why the statement in new section 292A(1) is qualified by subsection (2) in that it is subject to express provision made by part 13 of the principal Act.
The Planning (Listed Buildings and Conservation Areas) Act 1990, known as the listed buildings Act, and the Planning (Hazardous Substances) Act 1990, known as the hazardous substances Act, are both much shorter and are restricted in scope, so we can be more prescriptive about which provisions should not apply to the Crown. Those are listed in proposed new section 82A(2) of the listed buildings Act and proposed new section 30A(2) of the hazardous substances Act and deal mainly with offences, injunctions, rights of entry and warrants to enter land. There is more detail about rights of entry and enforcement in later amendments.
So far, it might be said, so good. However, for those Members who are already having trouble following the explanation, this is the moment to lie back and think of England. I fear that proposed new section 82A(3) in new clause 6(2) needs to be explained in a little more detail. I assure the Committee that this is an attempt to avoid throwing the baby out with the bathwater. New section 82A(2)(a) states that section 9 of the listed buildings Act 1990 will not bind the Crown. Section 9 sets out the offence of doing works to a listed building without the consent required by section 7 of that Act. Section 9(3) provides statutory defences for that offence. If a person carried out urgent works necessary for health and safety or for the preservation of the building, and it was not practicable to do works of repair or provide temporary support or shelter instead of doing those works, if the works done were the minimum measures immediately necessary, and if notice in writing justifying the works was given to the local planning authority as soon as reasonably practicable, that person would be safe from prosecution.
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The Crown may be safe from prosecution, but without the provision in proposed new section 82A(3) in new clause 6 it will have no power to undertake emergency works in those circumstances. That means that the Crown could not legally carry out emergency works in a situation where a private person could, which is clearly unsatisfactory. We therefore have a principle that where offences have been disapplied, we have to add back in any statutory defences as a positive right for the Crown so that the Crown has the same freedom of action as a private person. That is the effect of proposed new section 82A(3). It may sound complicated, but it does make sense. We will return to that theme when we debate new clause 13.
As well as proposed new section 30A of the Planning (Hazardous Substances) Act 1990, which I have already mentioned, new clause 6(3) also contains proposed new section 30B, which contains transitional provisions. They are very similar to those given to
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industry by the Act when it came into force. They allow Crown bodies to claim a deemed consent within six months of commencement of new clause 6(3) for hazardous substances present in the appropriate quantities during the 12 months prior to commencement. The requirements of the Act do not apply to military establishments. We do not believe that there are significant holdings of hazardous substances held by the Crown elsewhere.
Subsection (4) of new clause 6 introduces new schedule 1, entitled ''Crown application'', which amends the planning Acts in relation to their application to the Crown. New schedule 1 is a varied and complex set of provisions—the Acts need to be amended as a result of the Crown being bound by the Acts when it has not been so bound previously. The new schedule includes repeals of redundant provisions, some with savings, and provisions preserved from repealed sections. Some new provisions are required because the Crown is now bound by the Acts and there are adaptations of existing provisions for use by the Crown. Amendments Nos. 53 to 55 add the substantive repeals in new schedule 1 and new clause 11 to the list in schedule 6. I am sure that it will come as a relief to the Committee that I do not propose to describe each set of provisions in detail. I have no doubt that Members will raise any issues that concern them.
I turn to the arrangements that we need so that we can deal with the transition from a non-statutory to a statutory planning system. New clause 14 introduces schedule 2, which makes the necessary provisions. Members of the Committee will be aware that the Crown submits notices of proposed development following the guidance contained in Department of the Environment circular 18/84, instead of applying for planning permission or listed building consent. New schedule 2 is in two parts—the first for notices akin to planning applications and the second for notices akin to applications for listed building consent. They are substantively identical, so I shall address my remarks to the first part only.
After an introductory segment that deals with application definitions, there are three substantive segments. The first provides that notices that have been approved before commencement of new clause 6(1) are to be treated as if they were grants of planning permission. The second provides that where notices are in dispute and have been referred to the Secretary of State, who has not made a determination before commencement, such notices shall be treated as recovered appeals. The third provides that a notice that has been submitted to the local planning authority but is still being considering at commencement should be treated as an application for planning permission.
New clause 16 is the final provision in the group. As well as making the planning Acts binding on the Crown, we also need to make the existing subordinate legislation binding where necessary. Unfortunately, the existing subordinate legislation will not automatically become so because the enabling Acts did not allow that when it was made. To make the subordinate legislation bind the Crown, new clause 16 gives the Secretary of State a power to make an order
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defining which existing planning subordinate legislation will bind the Crown, either as it stands or with modification.
I hope that my remarks have been helpful to the Committee. Admittedly, the issue is complex, but I have sought to offer a guiding thread of clarification through the maze of new clauses and amendments.
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