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Baroness Hamwee: My Lords, the noble Lord says that there is little between us, but there are two years between us here. It is not a question of choosing the bathroom tiling or deciding which colour to paint the back bedroom; it is the question of two years and, certainly in my case, it is the big scheme. To flatter the Minister by copying him, I should say that I genuinely believe in what I am saying—which is likely since I wrote the words.
The noble Lord, Lord Bassam, has said that ultimately the courts are the arbiters of what are material considerations. Today I seem to have heard a slightly different response on whether certain matters may be material from that given on previous occasions, but to be told that associated consents may not be material considerations leaves me, to be frank, too puzzled to want to rely on the courts.
Basically, we are being asked to agree to a strong signal being sent to local authorities to get on with it, or to ensure that the developers do so. However, that strong signal could be given in the form of further guidance to local authorities on the application of Section 91(1)(b) and 91(2) of the Town and Country Planning Act 1990 which states in terms that the permission must be started within five years or,
- "such other period (whether longer or shorter) beginning with that date as the authority . . . may direct".
I am not going to be taken down the road of considering what would be good planning, whether in terms of speed or quality. I return instead to my real concern. The provisions that the Government are seeking to enact in Clause 51 will mean that the major developments we want to see, in particular in housing, will be so much harder to achieve. Members on these Benches are not noted for adopting the developer's point of view in a knee-jerk way, but we do listen to the arguments that have been made. We are very persuaded by those arguments. I should like to test the opinion of the House.
7.8 p.m.
On Question, Whether the said amendment (No. 142B) shall be agreed to?
Their Lordships divided: Contents, 122; Not-Contents, 99.
Addington, L.
Anelay of St Johns, B.
Astor, V.
Attlee, E.
Avebury, L.
Barker, B.
Biffen, L.
Blackwell, L.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brookeborough, V.
Brougham and Vaux, L.
Byford, B.
Carlisle of Bucklow, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
Deedes, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Eden of Winton, L.
Erroll, E.
Falkland, V.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Geddes, L.
Glentoran, L.
Goodhart, L.
Gray of Contin, L.
Greaves, L.
Greenway, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Henley, L.
Hodgson of Astley Abbotts, L.
Home, E.
Howe, E.
Hunt of Wirral, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Knight of Collingtree, B.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Masham of Ilton, B.
Methuen, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Moore of Lower Marsh, L.
Moynihan, L.
Newby, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Peel, E.
Platt of Writtle, B.
Rawlings, B.
Reay, L.
Redesdale, L.
Rees, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Russell, E.
St. John of Bletso, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Strathclyde, L.
Swinfen, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Trumpington, B.
Ullswater, V.
Vinson, L.
Waddington, L.
Wakeham, L.
Walmsley, B.
Walpole, L.
Watson of Richmond, L.
Acton, L.
Alton of Liverpool, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chan, L.
Clarke of Hampstead, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dixon, L.
Dubs, L.
Elder, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Haskins, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Hoyle, L.
Hughes of Woodside, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Judd, L.
Kirkhill, L.
Levy, L.
Listowel, E.
Lockwood, B.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mar, C.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Manchester, L.
Orme, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Rooker, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Smith of Leigh, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Turner of Camden, B.
Warner, L.
Warwick of Undercliffe, B.
Weatherill, L.
Whitaker, B.
Wilkins, B.
Woolmer of Leeds, L.
Resolved in the affirmative, and amendment agreed to accordingly.
7.18 p.m.
Clause 51 [Duration of permission and consent]:
The Deputy Speaker (Lord Lyell): My Lords, I advise the House that if Amendment No. 142C is agreed to, I cannot call Amendment No. 142D.
Baroness Hanham moved Amendment No. 142C:
- Page 38, line 14, leave out subsections (1) and (2).
On Question, amendment agreed to.
[Amendment No. 142D not moved.]
The Deputy Speaker: My Lords, if Amendment No. 142E is agreed to, I cannot call Amendment No. 142F.
Baroness Hanham moved Amendment No. 142E:
- Page 39, line 12, leave out subsection (4).
On Question, amendment agreed to.
[Amendment No. 142F not moved.]
[Amendment No. 143 had been withdrawn from the Marshalled List.]
Lord Rooker moved Amendment No. 143A:
- After Clause 51, insert the following new clause—
The noble Lord said: My Lords, this is a group of four new clauses. Amendment No. 143A forms a positive response to the review of the planning enforcement system in England, and to the noble Lords opposite who have sought to introduce their own amendments regarding enforcement powers.
The amendment provides local planning authorities with a new discretionary power to serve temporary stop notices to halt breaches of planning control for a period of up to 28 days.
New Section 171E enables the local planning authority to issue a temporary stop notice where there has been a breach of planning control where they consider it expedient to do so to prevent further development. The new section also sets out how the stop notice should be issued, in what form and to whom. The notice must set out the reason for issuing the notice. The temporary stop notice will have effect immediately; it is displayed on the land and ceases to have effect after 28 days unless it is withdrawn earlier.
New Section 171F sets out restrictions for the use of the temporary stop notices. Temporary stop notices do not prohibit the use of a building as a dwelling house and will not prohibit the carrying out of an activity that has already been carried out for four years or more.
New Section 171F also enables the Secretary of State to prescribe in regulations other activities that a temporary stop notice shall not apply to, even though those activities are in breach of planning control. Regulations may set out these activities either by describing them or by setting out the circumstances when an activity cannot be prohibited by a temporary stop notice.
New Section 171G sets out a new offence of breaching a temporary stop notice and the penalties that result from conviction. The penalties for contravening a stop notice are: on summary conviction in a magistrates' court, a fine not exceeding £20,000; and, on conviction on indictment in a Crown Court, a fine. In deciding the level of any fine, the court may take into account the financial gain accrued while the temporary stop notice was breached. The penalties replicate those that already exist in relation to stop notices under Section 187 of the 1990 Act.
New Section 171H sets out the circumstances in which compensation can be claimed from the local planning authority and is limited to: when the activity subject to the temporary stop notice already had planning permission when the stop notice was issued; when the activity has permitted development rights; when the activity has or acquires a lawful development certificate; or when the authority withdraws its notice. These provisions for compensation against losses offer protection against local planning authorities which serve notices in error. The procedure for claiming compensation replicates the provision in the 1990 Act for stop notices.
We have introduced the amendment as a result of the review of the planning enforcement system. This was one of the proposals put forward for comment,
Local planning authorities' enforcement powers are discretionary. The amendment is designed to enable action to be taken which is appropriate to the breach. Currently, stop notices can be served only in conjunction with an enforcement notice and can be used to tackle the most serious breaches.
Before an enforcement notice is issued the local planning authority will usually wait to see whether the unauthorised development is likely to cause harm. Under the current system, in order for work to stop, an enforcement notice has to take effect or a stop notice has to be issued to stop any further work taking place. In the case of an enforcement notice, this can be several months after development or the planning breach has started, particularly if an appeal is made against the enforcement notice. If stop notices are served, no further work can be done.
The temporary stop notice will bring an early halt to development which does not have planning permission. It will help to end the practice whereby a developer can build and apply retrospectively for planning permission for a completed building. If any breach of planning has to be stopped immediately, the planning injunction can be used. But injunctions are only used to prevent serious harm. They require court time and of course are expensive.
The temporary stop notice provides the local authority with a power to stop a breach of planning control for a limited period of time to enable it to decide whether further enforcement is appropriate and what action should be taken without the breach being "compounded" by being allowed to continue.
The planning system exists to control the development and use of land and is in the public interest. Ignoring planning controls is unfair and undermines public confidence in the system. Unauthorised development can be dangerous and damaging to the locality.
Better, faster, more efficient enforcement will help engender confidence and trust in the planning system. Prompt action will act as a disincentive to those who might seek to deliberately ignore planning controls and will give local authorities the confidence to take appropriate action. This power will, I am sure, be welcomed by local planning authorities to use in addition to the panoply of discretionary powers they already have across the range of planning breaches they encounter every day.
As I said, it can be extremely frustrating when a development goes ahead without planning permission. It affects neighbours and it can sometimes be months before any action, if any, is taken by local authorities. I know that from my own experience as a constituency Member of Parliament.
A temporary stop notice does not have to be used in all enforcement cases; local authorities already have at their discretion a number of different ways of taking action. It would be used only where local planning authorities consider it expedient to stop a breach immediately. Current arrangements may be sufficient in most cases. I would expect any use of this power to be reasonable, responsible and proportionate.
These temporary stop notices could be used in a variety of circumstances, many of which have been raised with us in the enforcement review and during the passage of the Bill through Parliament. These might include the inappropriate change of use of someone's back yard to a car paint-spraying business or the construction of an extension without planning permission.
They would also clearly be an option for local authorities to consider where Gypsy and Traveller groups have begun unauthorised development on an inappropriate site, perhaps in the green belt. We are, however, concerned to ensure that the temporary stop notice should not be used unfairly or inappropriately. We are mindful of the difficult circumstances surrounding accommodation for Gypsies and Travellers. A major review is under way in the Office of the Deputy Prime Minister at the moment. As we have said before, to address these problems we need greater site provision—that is, more sites—including greater support for Gypsies and Travellers to identify appropriate sites of their own to develop, alongside more effective enforcement on inappropriate sites.
We are currently reviewing circular 1/94 with the intention of providing more support for Gypsies and Travellers to identify their own appropriate sites. We are also reviewing the operation of housing needs assessment to build in consideration of Gypsy and Traveller accommodation needs at an early stage. These changes will take some time to implement. In the meantime, we are keen to ensure that Gypsies and Travellers are not treated unfairly relative to other groups.
We therefore intend to introduce regulations which will replicate the current exemption for buildings used as dwellings to caravans used as dwellings. The content of the regulations will be a matter for consultation. However, the intention is that they will include measures that, although caravans which are occupied as a sole or main residence on site will be allowed to remain until any follow-up enforcement action is taken, any further associated works will be "caught" by the stop notice.
We are introducing this exemption through regulations rather than on the face of the Bill for two reasons. First, we want the temporary stop notice to replicate the shape of the existing stop notice; secondly, we want the flexibility to change the position with regard to caravans as further detail of the policy around Gypsy and Traveller accommodation develops and as local authorities enable greater site provision in their areas. I hope that broadly explains why we are bringing in this group of new sections.
We are very sympathetic to the spirit of the noble Lord's Amendment No. 143AA that it is right to afford similar protection to Gypsies and Travellers dwelling in caravans as those who live in houses. It is our clear intention to do so. I believe that regulations are a more effective and flexible way of achieving this as they will be subject to consultation, ensuring that the exemptions we propose are both workable and acceptable to those that they cover. The proposal for using the regulations I referred to a short while ago will permit caravans already on site to remain. I hope that answers the points that the noble Lord will make in due course.
Amendment No. 143B seeks to amend the new provisions for the new temporary stop notice compensation by removing the reference to local planning authorities being the only authority to issue a lawful development certificate. It allows lawful development certificates granted on appeal to the Secretary of State to be included in the compensation provisions. That is a valid point which we shall consider.
Amendment No. 144 seeks, through a new clause, to give local planning authorities similar powers in respect of enforcement of a stop notice as they already have for seeking compliance with and taking remedial action in respect of an enforcement notice. That includes steps to be taken to remedy the breach, to remedy any injury to amenity and to seek to cease activity on the land, including the removal of objects. These powers are already available to local planning authorities.
Local planning authorities already have powers to enter land and take the steps required by the enforcement notice to remedy the situation. They can also recover from the person who is then the owner of the land any expenses reasonably incurred by them.
The stop notice can be served only after or at the same time as the enforcement notice and must relate to the activity prohibited by the enforcement notice. Although both the enforcement notice and the stop notice set out details of the activity or development which must cease, it is the enforcement notice which gives details of the remedial action which must be taken, not the stop notice.
We are sympathetic to the aims behind the amendment but duplicating the powers of the enforcement notice in the existing stop notice will not solve the problem of stopping unauthorised development or intensification of the land in the first 28 days after the breach has occurred. We think that a better way to deal with this problem is the new temporary stop notice—provision is in the four new clauses I have introduced—which will give local planning authorities power to stop breaches of planning control immediately the notice is served.
I hope, therefore, that that will be sufficient and that in due course the noble Baroness and noble Lord, having moved their amendments, will feel able to withdraw them. I beg to move.
Lord Avebury moved, as an amendment to Amendment No. 143A, Amendment No. 143AA:
"TEMPORARY STOP NOTICE
After section 171D of the principal Act (penalties for non-compliance with planning contravention notice) there are inserted the following sections—
"Temporary stop notices
171E TEMPORARY STOP NOTICE
(1) This section applies if the local planning authority think—
(a) that there has been a breach of planning control in relation to any land, and
(b) that it is expedient that the activity (or any part of the activity) which amounts to the breach is stopped immediately.
(2) The authority may issue a temporary stop notice.
(3) The notice must be in writing and must—
(a) specify the activity which the authority think amounts to the breach;
(b) prohibit the carrying on of the activity (or of so much of the activity as is specified in the notice);
(c) set out the authority's reasons for issuing the notice.
(4) A temporary stop notice may be served on any of the following—
(a) the person who the authority think is carrying on the activity;
(b) a person who the authority think is an occupier of the land;
(c) a person who the authority think has an interest in the land.
(5) The authority must display on the land—
(a) a copy of the notice;
(b) a statement of the effect of the notice and of section 171G.
(6) A temporary stop notice has effect from the time a copy of it is first displayed in pursuance of subsection (5).
(7) A temporary stop notice ceases to have effect—
(a) at the end of the period of 28 days starting on the day the copy notice is so displayed,
(b) at the end of such shorter period starting on that day as is specified in the notice, or
(c) if it is withdrawn by the local planning authority.
171F TEMPORARY STOP NOTICE: RESTRICTIONS
(1) A temporary stop notice does not prohibit—
(a) the use of a building as a dwelling house;
(b) the carrying out of an activity of such description or in such circumstances as is prescribed.
(2) A temporary stop notice does not prohibit the carrying out of any activity which has been carried out (whether or not continuously) for a period of four years ending with the day on which the copy of the notice is first displayed as mentioned in section 171E(6).
(3) Subsection (2) does not prevent a temporary stop notice prohibiting—
(a) activity consisting of or incidental to building, engineering, mining or other operations, or
(b) the deposit of refuse or waste materials.
(4) For the purposes of subsection (2) any period during which the activity is authorised by planning permission must be ignored.
(5) A second or subsequent temporary stop notice must not be issued in respect of the same activity unless the local planning authority has first taken some other enforcement action in relation to the breach of planning control which is constituted by the activity.
(6) In subsection (5) enforcement action includes obtaining the grant of an injunction under section 187B.
171G TEMPORARY STOP NOTICE: OFFENCES
(1) A person commits an offence if he contravenes a temporary stop notice—
(a) which has been served on him, or
(b) a copy of which has been displayed in accordance with section 171E(5).
(2) Contravention of a temporary stop notice includes causing or permitting the contravention of the notice.
(3) An offence under this section may be charged by reference to a day or a longer period of time.
(4) A person may be convicted of more than one such offence in relation to the same temporary stop notice by reference to different days or periods of time.
(5) A person does not commit an offence under this section if he proves—
(a) that the temporary stop notice was not served on him, and
(b) that he did not know, and could not reasonably have been expected to know, of its existence.
(6) A person convicted of an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding £20,000;
(b) on conviction on indictment, to a fine.
(7) In determining the amount of the fine the court must have regard in particular to any financial benefit which has accrued or has appeared to accrue to the person convicted in consequence of the offence.
171H TEMPORARY STOP NOTICE: COMPENSATION
(1) This section applies if and only if a temporary stop notice is issued and at least one of the following paragraphs applies—
(a) the activity which is specified in the notice is authorised by planning permission or a development order or local development order;
(b) a certificate is issued by the local planning authority in respect of the activity under section 191;
(c) the authority withdraws the notice.
(2) Subsection (1)(a) does not apply if the planning permission is granted on or after the date on which a copy of the notice is first displayed as mentioned in section 171E(6).
(3) Subsection (1)(c) does not apply if the notice is withdrawn following the grant of planning permission as mentioned in subsection (2).
(4) A person who at the time the notice is served has an interest in the land to which the notice relates is entitled to be compensated by the local planning authority in respect of any loss or damage directly attributable to the prohibition effected by the notice.
(5) Subsections (3) to (7) of section 186 apply to compensation payable under this section as they apply to compensation payable under that section; and for that purpose references in those subsections to a stop notice must be taken to be references to a temporary stop notice.""
7.30 p.m.
Line 57, at end insert—
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