Session 2009-10
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Uncorrected Evidence


HOUSE OF LORDS

MINUTES OF EVIDENCE

taken before the

UNOPPOSED BILL COMMITTEE

on the

KENT COUNTY COUNCIL

(FILMING ON HIGHWAYS)

BILL [HL]

Tuesday 23 February 2010

11:00am

Before:

Brabazon of Tara, L, Chairman of Committees

Mr Allan Roberts, Counsel to the Chairman of Committees

MR IAN McCULLOCH of BIRCHAM DYSON BELL

appeared as Parliamentary Agent for the Bill.

There also appeared:

MS GABRIELE LINDEMANN, Kent Film Officer, Kent Film Office, Kent County Council;

MS TANYA OLIVER, Director of Strategic Development and Public Access for Kent

County Council;

MS SARAH BONSER, Solicitor, Kent County Council.

1. THE CHAIRMAN: Good morning, ladies and gentlemen. It is now 11 o’clock. I am Lord Brabazon of Tara, Chairman of the Committee. On my right is Allan Roberts, my Counsel, whom I think you know. Mr McCulloch, could I ask you to introduce your team and also say something about the Bill?

2. MR McCULLOCH: Thank you very much, my Lord. If I could begin with the usual introductions, first of all on my left I have I have Ms Tanya Oliver. Ms Oliver is Director of Strategic Development and Public Access at Kent County Council, and on my right I have Ms Gabriele Lindemann, who is Manager of the county council’s Film Office, and, of course, I have Mrs Thompson further to my right, with whom you are familiar.

3. My Lord, the Bill is promoted by Kent County Council and it seeks to permit filming on the highway in Kent and, what is more, in a properly regulated fashion. One might infer from this that filming on the highway does not yet occur, but that is not the case. Filming already takes place on the highway but the legal basis for doing so is both doubtful and unsatisfactory. Sometimes it has simply been a case of some off-duty policemen being hired by a film production company and holding back the traffic and directing it to enable some filming to take place. Sometimes a district or borough council has been willing to close a road for filming by exercising powers under the Town Police Clauses Act 1847, the legitimacy of which has been questioned in several quarters, not least by the Kent police.

4. Filming is not an activity for which the local traffic authority can make a temporary traffic regulation order under the Road Traffic Regulation Act, and so perhaps the last place one can turn for a proper legal basis for closing roads for filming purposes is the Road Traffic Regulation (Special Events) Act 1994, which imported a new section 16A into the Road Traffic Regulation Act 1984. This new provision allows temporary closures of roads for special sporting and social events. This was passed in anticipation of the Tour de France coming to England for the first time.

5. THE CHAIRMAN: Yes, I remember.

6. MR McCULLOCH: It has been used on many occasions since both for sporting events and social celebrations of one kind or another.

7. Since the 1994 Act was passed some road closures have been made for filming under this Act by using these new provisions to permit this different activity, but, frankly, this too has a somewhat doubtful legal basis. Filming is neither a sporting event nor is it really a social event. The question is, is it an entertainment? It is doubtful whether filming could be regarded as an entertainment for the purposes of the Act even though it may be an activity of creating an entertainment. In the meantime there is a growing demand for filming on location and this is thought to be very beneficial to the local economy.

8. In London the issue has been addressed by the passing of the London Local Authorities and Transport for London Act 1998. This brought film-making within the ambit of the provisions for special events. It also imposed a separate restriction on the number of times each year the provision could be used for filming so that filming would not have to compete with sporting and social events for a share of the limited allocation of days and times of year when road closures can be allowed and it extended the number of continuous days when a road could be closed. For filming it extended it to a maximum of seven days. For other types of event it is three days and remains at three days. Finally, the London Act also allowed a London local authority to permit short-term closures, by which I mean no more than 24 hours, by issuing a notice to that effect without having to go through the process for a special event closure.

9. This Bill seeks to do almost exactly the same for Kent as the 1998 Act did for London. The only differences are that in the Filled-Up Bill before you, and after discussion with your counsel, the powers under this Bill are confined to the county council. They do not apply, for example, if there is a situation where there is another body that could be the traffic authority for a particular road. They will not apply to another traffic authority, only to the county council, and in this case we have provided that the short form of film notice as opposed to the closure order (this is for no more than 24 hours) will be publicised, and we have proposed, striking a balance between the need to do so quickly with giving people adequate information about it, that a notice of the proposed short-term closure be posted at each end of the road where the closure is proposed. That is in the Filled-up Bill, my Lord.

10. That in essence, my Lord, is the underlying need for the Bill. It is to clarify and resolve the doubt as to the proper basis for doing so, and it is to improve the terms and the regulation upon which filming can take place. That is under clauses 3 and 4, which clarify, as I say, both the manner in which permission can be given and the manner in which it will be regulated.

11. My Lord, if I may I would now like to turn to clause 5. Clause 5 is modelled on a clause in the Bill for the London Act which did not make its way into the Act itself. I believe it was dropped by the Promoter. We are not sure why, possibly for a reason pertaining to London in particular and possibly to do with security but I am not quite sure why they chose not to pursue the promotion of clause 5 of the Bill.

12. So far as Kent is concerned, the power, which is to permit the placing of an object on the highway temporarily for the purpose of making a film, would be a very useful additional power to have and might even obviate the need to close a road by making a film order or issuing a film notice, because there may well be circumstances in which it is sufficient to allow a piece of apparatus to be positioned on the highway – it might be the carriageway, it might be the footway – for some filming to take place without the need to close the road or part of the road as such, the legal position here being that under section 137 of the Highways Act 1980 it is an offence wilfully to obstruct free passage along a highway. What amounts to obstruction is a matter of duration, extent and degree, which will depend upon the circumstances in each case. For example, if a person were to keep moving he would be less likely to cause an obstruction than if he were to remain stationary. A film company might well want to place a fixed camera, it might be a tripod or other apparatus, on the highway for a few hours and there is, I think, a legitimate concern that this might well amount to wilful obstruction of the highway under section 137 because it might not be sufficiently temporary for it not to be an obstruction of the highway.

13. One answer, of course, would be for the council to agree to a road closure if you allow the powers under clauses 3 and 4, but this may be disproportionate to the circumstances if it is a case of merely asking vehicles or pedestrians to circumnavigate a particular piece of apparatus while filming can take place. In other words, my Lord, where clauses 3 and 4 are to allow road closures for filming, the benefit of clause 5 is that it could be invoked to permit some filming on the road without having to close the road to do so. That is why we commend clause 5 to you along with clauses 3 and 4, even though clause 5 is not precedented in an earlier enactment.

14. My Lord, prior to the promotion of the Bill, the council consulted on it in a number of quarters, including on their own council website, which is quite a well-known place for council consultations. No-one has objected to the Bill, there are no petitions against it and no government department has reported on it.

15. I would also like to say that filming on the highway can take different forms, and I might add that in all these circumstances I am describing this is not filming by Kent County Council. It is not the council itself which is to conduct filming. It is to permit others, film production companies of one sort or another, to carry out filming. This could be simply a student with a camera making a film for his degree course. It could be as modest as that. Quite often though it is more significant than that. It might be filming which would call for a proper degree of communication in advance with local residents who might be affected by it and businesses also who might be affected by it and might require some communication too with the police so that they know what is going on, and other services too for that matter. Some preparatory work might be appropriate and required. It might be even more substantial than that. There is one in particular which people understand and are attuned to, which is in fact the case of the village of Chilham. Chilham is a particularly picturesque village in Kent which was recently used for filming the BBCs production of Jane Austen’s Emma, and indeed there have been one or two other instances of quite substantial filming operations involving some filming on the street or entailing some road closure, and that includes one of the recent Harry Potter movies.

16. My Lord, in all these cases the Kent Film Office requires the film company to enter into an agreement with the council which regulates the terms on which they may conduct filming on the highway at all. It is quite a comprehensive arrangement they have in place. I should add, my Lord, that this is not a revenue generator for Kent County Council itself. The council does recoup from film companies the additional expenditure that the film companies may cause in filming on the highway. It might entail, for example, some street cleaning after filming has taken place, litter clearance and things like that, and the council do make charges where they are put to additional expense, but the council does not charge for consent itself to use the highway, so it is not akin to other forms of local charges like parking charges where there is a revenue return for the council.

17. My Lord, the making of a full feature film can attract expenditure in the locality of as much as £60,000 a day. This is regarded as very beneficial. It is estimated that the filming for Emma in Chilham attracted £64,000 of direct spend over the few days that filming took place, and this does not include the indirect spend that happens when a 120-strong crew is in the neighbourhood and when their families join them for the weekend and they use the village pub and the local shops and other facilities and so on. Then, when the filming has all taken place and it is screened, there is sometimes a later consequential tourism benefit where people are attracted to look at the village and patronise the local store and so on, knowing that this is where Emma was filmed, and this can also be a further benefit to draw income into the economy.

18. There is evidence for genuine concern that if the county council cannot permit filming of this kind in a properly regulated manner the filming will simply migrate elsewhere and places to which it might easily go are Germany and eastern Europe where filming on the highway is quite commonplace and easily permitted, and so we do not wish to lose that benefit which could otherwise come to the county of Kent.

19. My Lord, some time ago Kent County Council saw the need both to promote the interests of the county in this way as a possible venue for filming on location and also, of course, to manage it properly, and so in 2006 it established its own county council Film Office, which is managed by Ms Lindemann on my right, and since then the Film Office has attracted something in the order of £13 million, possibly more than that, into the local economy through expenditure by visiting production companies. That is the measure of it at the present time.

20. The Kent Film Office already has comprehensive working practices in place to manage all aspects of filming from early consultation with neighbourhoods to matters of safety, and that is as important a feature of it as anything, for example, if there is to be filming on location which involves a stunt of some kind or an explosion. These are all things which Kent County Council have experience of managing through agreement and consultation. My Lord, if you would like to know more about how it works in practice I am sure Ms Lindemann will be able to help answer any questions that you may have on that subject. It does appear to be done very responsibly and successfully in practice already.

21. My Lord, I think I have now covered everything, so perhaps I should pause there and see whether I have covered everything to your satisfaction or not, and, as I say, if you have any questions both Ms Lindemann and I will do our best to answer them.

22. THE CHAIRMAN: Thank you very much, Mr McCulloch. That was very interesting and I have to say that I am in favour of this because generally speaking it seems a very good idea. I was going to ask what happens now because, obviously, films have been made on the highway before now, but I think you have already satisfactorily covered those points. Basically, you are saying it has been pretty dubious, the legality of it, up to now.

23. MR McCULLOCH: Yes.

24. THE CHAIRMAN: You mentioned at one point that this only affects roads which are the responsibility of Kent County Council as the traffic authority. That is all roads except government roads, is it, or other district council roads?

25. MR McCULLOCH: No, I think in nearly all situations it is the county council that is the traffic authority.

26. THE CHAIRMAN: Except where it is a trunk road?

27. MR McCULLOCH: Where it is a trunk road it would be the secretary of state, effectively. There may possibly be some unusual circumstances, which I am not aware of, but, for example, at Heathrow Airport I think British Airports Authority is the traffic authority for the roads within the airport, so there are odd situations around the country where the county council is not the traffic authority for a road. I do not know if there are any such situations here.

28. THE CHAIRMAN: They are probably not of any significance in this case. It is really the difference between the county council roads and the government trunk roads.

29. MR McCULLOCH: Exactly. Instead of having this rather odd arrangement at the moment where sometimes boroughs and districts give some sort of consent under the Town Police Clauses Act, which, as I said, is somewhat doubtful, this would allow Kent County Council through its Film Office to regulate the whole thing.

30. THE CHAIRMAN: What about consultation with the locals when you want to close a road for up to seven days? You mentioned the Jane Austen film down at Chilham. How long did that take? Did it take within seven days or are you allowed to have two lots of seven days, one after the other?

31. MR McCULLOCH: Perhaps I may turn to Ms Lindemann because she is the one that deals with this in practice. I believe the council are very sensitive to the needs of the local residents in this sort of situation.

32. MS LINDEMANN: My Lord, with regard to Chilham in particular, filming can be so invasive to the local community that there really is no way of doing it without consulting them, and quite extensively, so as soon as the film company approached us we went to the parish council and got them on board, and the church, and then we asked the film company to drop letters about two months ahead of the filming and collect consents, not to say, "If you have any problems with this let us know", but the other way, "Please let us know if you do want the filming", and only when the location manager of the film company was able to show us that the majority of people affected by this were for the filming did we start to negotiate with Ashford district, who then put in a Town Police Clauses Act with which we managed to close the square.

33. The film company originally wanted to do the filming just before Easter and we moved it, because there is a primary school just off the square, so that we would not interfere with school runs in particular. Then it was a consultation between the district and our highways department, myself and the film company and the parish council that effected it. There was one day when they wanted an additional day filming because they had terrible weather, so we put the Town Police Clauses Act in to cover an extra two days knowing that the film company was going to overrun, so it was not an issue and they basically filmed an extra three hours the following morning and then they cleared out.

34. THE CHAIRMAN: Would that not be the sort of thing you could do under the notice provision, to extend it by up to 24 hours?

35. MS LINDEMANN: Yes, ideally. Sometimes there are circumstances that you cannot foresee, like the snow we have had recently. There is no way, if somebody who has started filming without snow and then halfway through the scene there is snow, that that would work, so in situations like that, rather than having to go through another five or six weeks of consultation, we would be able to extend the filming by 24 hours.

36. THE CHAIRMAN: Presumably when you talk about making a film like that it is not just the closing the highway bit; it is the whole of the village and all sorts of other things which will affect it as well.

37. MS LINDEMANN: Yes, it is. They painted most of the village square. It was too nice-looking for the 19th century so it was all painted down. The residents have to be involved and most people do get compensated for this and the residents of the local castle made their whole stable yards available for the 50-odd trucks that came and caravans and catering and all the rest of it, so yes.

38. THE CHAIRMAN: Thank you. You said that the London Act does not have clause 5 and we do not quite know why it was dropped, but there would have been no objections to clause 5 either from the Government or from petitioners in this case?

39. MR McCULLOCH: None at all, my Lord, no.

40. THE CHAIRMAN: I cannot really see any objection to letting it go through. I do not know if Mr Roberts has any questions.

41. MR ROBERTS: Could I just ask one thing about it? It is going back to the business of successive film orders for any one stretch of road. What you have got is well founded in the precedent for London, but although it has a cap of six orders per year per stretch of road, there is, of course, no actual cap within that year on how you space out the orders, each of which could be up to seven days. In practice how do you see that cap working? Is it likely that you are going to have a situation where you need to have three successive orders for a big project like the Emma project?

42. MS LINDEMANN: I think it would depend entirely on how the parish or the residents would feel about it. If they would like to have filming six weeks in a row who am I to say no? If they would rather have just two a year then that is up to them. I do not see Kent County Council as a dictator but as a facilitator and an agent between the film company and the residents to facilitate this and make sure that it happens in a safe way and that everybody is happy on how this happens.

43. THE CHAIRMAN: Presumably when you are making a film like the Emma one you would not necessarily have to have the road closed all the time because there are other bits of filming they presumably do.

44. MS LINDEMANN: Yes. I myself worked for 15 years within the industry and I cannot think of a single time when we needed that amount of closure. It is usually just a day or so when the film company moves around, and even if road closures are put in place it is to everybody’s advantage that whenever it is not needed you open the road again because delivery trucks, waste collection, people with disabilities, all need to be catered for and we make sure that the road is closed only a minimum amount because it keeps the residents happy as well, which is important.

45. THE CHAIRMAN: We do not have any more questions. Thank you very much indeed for your very comprehensive explanation. I wish the Bill well and Kent County Council well in getting filming done. Can I now ask that we move to the formal part of the proceedings and ask you to prove the Preamble?

46. MR McCULLOCH: Indeed, my Lord. The Preamble will be proved by Ms Oliver and she just needs to take the oath for the formal proceedings.

MS TANYA CLARE OLIVER, Sworn

Examined by MR McCULLOCH

47. MR McCULLOCH: Are you Tanya Clare Oliver?

(Ms Oliver) I am.

48. Are you the Director of Strategic Development and Public Access for Kent County Council?

(Ms Oliver) I am.

49. Do you hold responsibility for the promotion of the Bill on behalf of Kent County Council, which is promoting it?

(Ms Oliver) I do.

50. Have you read the Preamble to the Bill?

(Ms Oliver) I have.

51. Is it true?

(Ms Oliver) It is true.

The witness withdrew

52. THE CHAIRMAN: Thank you very much. That concludes our proceedings. I will report the Bill to the House with amendments.

53. MR McCULLOCH: I am much obliged. Thank you, my Lord.

54. THE CHAIRMAN: Thank you.

The Committee adjourned at 11.31am

(Transcribed from the Shorthand Notes of:

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Prepared 11:17 on 26th February 2010