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The Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister (Yvette Cooper): I beg to move, That the clause be read a Second time.
The Chairman: With this it will be convenient to discuss Government new clause 37—Enforcement in relation to Crown land: Scotland.
Yvette Cooper: New clause 11 deals with enforcement in relation to Crown land, and new clause 37 makes the same provisions in Scottish planning legislation, but taking account of any differences in Scotland, such as the absence of Duchy land in relation to Crown immunity. The clauses are, at first sight, counter-intuitive. So far, we have set out the importance of removing Crown immunity in planning law so that, like everyone else, the Crown in its various guises must abide by the law—
5.13 pm
Sitting suspended for a Division in the House.
NIL Section
5.28 pm
On resuming—
[Mr. Peter Pike in the Chair]
Yvette Cooper: I welcome you to the Committee, Mr. Pike. It is good to see you here.
The overall intention of the Bill is to ensure that the Crown, in its various guises, is covered and abides by planning law. The new clause prevents local planning authorities from using the courts to force breaches of planning law by the Crown. It is important to set out the reasons for that.
Members will be aware that the legal position of the Crown has been distinctive for many centuries. The general rule in common law was that no civil or criminal proceedings could be brought against the monarch because the courts are the Queen's own and have no jurisdiction over her. On the civil side, much has changed. Following the Crown Proceedings Act 1947 and the Government's administrative law on judicial review, a wide range of Crown activities are subject to scrutiny by the courts. The general immunity from criminal prosecution remains. The Bill is about planning. It is not our intention to overturn our legal and constitutional tradition. Therefore, the Bill continues the tradition that no criminal proceedings can be brought against the Crown, or at least not without the Crown's permission. That is the purpose of proposed new section 296A, subsections (1) to (5).
However, given that the purpose of the provisions is to bring the Crown within planning law and how important it is that the Crown should be held to account for breaches of planning law—that is, illegal activity—subsection (6) plays an important role. It
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makes it clear that local planning authorities can serve enforcement notices on the Crown, which has several consequences.
We can expect the Crown to comply with enforcement notices, be it a Department or Government agency or other agent of the Crown. Should such bodies fail to comply, they would be acting illegally and could be challenged by judicial review or brought before the ombudsman. Ministers would be held to account to Parliament and, of course, the media and public opinion would ensure accountability as well. In practice those are powerful motivators. Whether cases proceed through judicial review or the European Court of Human Rights, the Government and the agencies of the Crown have always tended to be swift to comply when found to be acting illegally in any way.
Finally, the interpretation of proposed new section 296B provides that enforcement notices should be served on the appropriate authority rather than the owner where there is Crown or Duchy interest. That is to prevent Her Majesty the Queen from being personally served with a series of notices that should be served, for example, on the Crown Estates Commissioners or another appropriate authority.
Mr. Clifton-Brown: Welcome to the Chair, Mr. Pike. I also welcome the Under-Secretary of State, Office of the Deputy Prime Minister, the hon. Member for Pontefract and Castleford (Yvette Cooper) to the Committee's proceedings.
New clause 11 is another example of the Crown being treated differently. I understand that it is difficult to start serving criminal proceedings on the Secretary of State. One could imagine all sorts of possibilities, but as for notices, which I accept can be served under subsection (6), I think that on the whole the Crown ought to be subject to most provisions of the planning Acts and that there is not enough of a stick in relation to the Crown.
The Crown should never need to face the possibility of a local planning authority serving enforcement notices or taking steps for criminal proceedings. If the Minister for Housing and Planning is right that one could expect Departments to uphold the law to the highest possible extent, one would expect the relevant provision never to be used. If it is used, something must have gone pretty badly wrong, and if things have gone that badly wrong the Department ought to be subject to the full rigour of the law. I therefore have some difficulty with the new clause.
I would like clarification on new section 296B(1), which refers to
''the extent that an interest in land is a Crown interest or a Duchy interest.''
I assume that ''Crown interest'' includes Her Majesty's private estates, but the Bill does not explicitly say that and I wonder whether it should be put right. Other than those few comments, I am happy to let the new clause go through.
Matthew Green: I, too, welcome you to the Chair, Mr. Pike. I also welcome the Under-Secretary.
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I entirely see the point of the two new clauses. The protections are clearly consequential to ending Crown immunity. However, as I said in earlier debates, I can foresee a situation that might not be covered. We were discussing buildings that people did not know existed and planning applications made under new clause 7 where disclosure of information was restricted. If such a building or structure was constructed without planning permission, the local authority could slap on a notice of enforcement under new clause 11. That would be a public notice of enforcement. If the Ministry of Defence or the security services had failed to follow the provisions of new clause 7, they would be subject to the provisions of new clause 11. That might not be in the interests of national security. I wonder whether something has been left out of the proposal.
Yvette Cooper: The question is, why should the Crown be treated differently? I have already spoken about the constitutional, legal and historical tradition of the Crown being treated differently in the courts with regard to criminal proceedings and it is not the purpose of a planning Bill, which is about planning law, to overturn that tradition. We can certainly debate our constitutional tradition and the nature of the relationship between the Crown and the courts, but this is not the place to do so.
I agree that the Crown should comply with the law, but that is what the Crown does and has done in all sorts of areas where it has been decided that the Crown has acted illegally. It is possible for enforcement notices to be served—perhaps for technical breaches of conditions or decisions taken by Government agencies about the land—and it is right that we should have the procedures in place to allow that. I am not entirely sure whether the hon. Member for Cotswold was arguing that we do not need such a provision because matters should never get that far or that we need considerably stronger provision. However, enforcement notices provide a clear and public statement, and that could apply in relation to the other proposals.
On the question whether the Crown interest applies to Her Majesty's private interests, I am advised that it does. That is set out in new schedule 1, which was discussed this morning. I am not aware of any gaps in the provisions of new clauses 11 and 37.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
New clause 12
Tree preservation orders affecting land where Forestry Commissioners interested
'(1) Section 200 of the principal Act (orders affecting land where Forestry Commissioners interested) is amended as follows.
(2) In subsection (2)—
(a) after paragraph (a) leave out ''or'';
(b) after paragraph (b), there is inserted ''or
(c) it has been placed at their disposal.''.
(3) In subsection (3), leave out from ''in accordance with'' to the end and insert—
''(a) in accordance with a plan of operations or other working plan approved by the Forestry Commissioners, and for the
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time being in force, under a forestry dedication covenant or under the conditions of a grant or loan made under section 1 of the Forestry Act 1979;
(b) by the Forestry Commissioners on land placed at their disposal.''
(4) After subsection (4)(a)—
(a) leave out ''and'';
(b) insert the following paragraph—
''(ab) land placed at the disposal of the Forestry Commissioners is land placed at their disposal under the Forestry Act 1967;''.'.
—[Keith Hill.]
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 13—Trees in conservation areas: acts of Crown.
Government new clause 42—Tree preservation orders affecting land where Forestry Commissioners interested: Scotland.
Government new clause 43—Trees in conservation areas in Scotland: acts of Crown.
Keith Hill: These new clauses are concerned with trees in two specialised sets of circumstances. New clause 12 deals with tree preservation orders affecting land where the Forestry Commission has an interest. New clause 13 deals with acts of the Crown in connection with trees in conservation areas.
Before speaking about the new clauses, it might help if I clear up a point that arose this morning on tree preservation orders—a passionate concern of the hon. Member for Cotswold. I would like to confirm that it will be possible for tree preservation orders to be made on Crown land, subject to the minor modifications that we are about to debate. The difficulty seems to have arisen from the repeal of section 300 of the principal Act, in paragraph 26 of new schedule 1. Section 300 deals with tree preservation orders in anticipation of disposal of Crown land.
That is currently required because the principal Act does not bind the Crown and sets out the special circumstances in which the local planning authority might make a tree preservation order. In brief, the circumstances are that if the land is to be sold by the Crown there ought to be a tree preservation order in place before that sale takes place to protect the woodland or other trees there. The Committee will understand that that provision is no longer necessary as local planning authorities will be able to make tree preservation orders on Crown land at any time.
Having offered what I hope is a helpful word of clarification, I shall now revert to new clause 12. The removal of Crown immunity will enable local planning authorities to make tree preservation orders on Crown land without the prior consent of the relevant Crown body. The Crown will therefore be subject to the usual requirements imposed by such orders, including the requirement to obtain the local planning authority's consent for felling or pruning works. Under the tree
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preservation order legislation, the requirement to obtain a local authority's consent is disapplied in a number of circumstances—for example, where trees are dangerous or where felling has otherwise been approved by the Forestry Commission, either by felling licence or one of its woodland management schemes.
Accordingly, under section 200 of the principal Act, woodland management carried out by private individuals in accordance with the plan of operations approved by the Forestry Commission can proceed outside the controls of the tree preservation orders system. New clause 12 amends section 200 to ensure that forestry operations or woodland management carried out by the Forestry Commission is also not subject to those controls. That takes it into account that the commissioners make their felling and other management decisions in accordance with their duty under the Forestry Act 1967 to achieve a reasonable balance between forestry and conservation.
New clause 13 is a second new clause on trees and it adds four new subsections to the end of section 211 of the principal Act. It is another proposal that is difficult to follow because the beginning of the section to which it relates is not set out. I must therefore describe what existing subsections (1) and (3) of section 211 do, in the context of the enforcement provisions in new clause 11. Section 211 is concerned with trees in conservation areas that are not subject to tree preservation orders. Subsection (1) provides that it is an offence to do to such a tree anything that would be prohibited by a tree preservation order. However, subsection (3) provides a statutory defence. As we have seen in new clause 11, offences do not apply to the Crown, nor does any statutory defence. Accordingly, in place of both, new clause 13 prohibits the Crown from doing acts prohibited by subsection (1), unless the conditions in subsection (3) are met.
The result is that before an emanation of the Crown does anything to a tree in a conservation area that would be prohibited by a tree preservation order, it must first serve a notice on the local planning authority, setting out its proposals. In effect, the local planning authority has six weeks to respond. If it gives its consent within that period—consent has to be unconditional—all well and good. If the authority wishes to attach conditions to or prevent the work, it must make a tree preservation order. If the authority does not respond within a six-week period, the tree works may proceed. New clauses 42 and 43 make the same amendments to equivalent sections in the principal Scottish planning Act. The purpose and effect of the amendments in the Scottish context are as I described for England and Wales.
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