Column Number: 003
Seventh Standing Committee
on Delegated Legislation
Thursday 20 March 2003
[Mr. Bill O'Brien in the Chair]
Draft Town and Country Planning
(Electronic Communications) (England)
The Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister (Mr. Tony McNulty): I beg to move,
That the Committee has considered the draft Town and Country Planning (Electronic Communications) (England) Order 2003.
The order was laid before the House on 6 March. If approved by the House and the other place, it will facilitate the electronic handling of parts of the town and country planning system by amending existing legislation to remove obstacles to the effective use of electronic communications. Because the order is an amending instrument, it might not be easy to read, as hon. Members may have found. Perhaps it would be helpful if I summarised the background and purpose of the order.
Central and local government have adopted the target of making all services available electronically by December 2005. For planning services, that target will require the electronic delivery of a fully functioning development control service. To achieve that target, we must remove any legal and regulatory barriers to electronic working. Section 8 of the Electronic Communications Act 2000, under which the order has been made, gives us powers to amend existing legislation to remove any barriers that may prevent the use of electronic communication and storage instead of paper.
The order chiefly amends the Town and Country Planning Act 1990 as amended; that is the principal Act governing the planning system. However, it also amends parts of the Planning (Listed Buildings and Conservation Areas) Act 1990, two schedules to the Environment Act 1995, and some of the secondary legislation made under the planning Acts. The order will ensure that the relevant legislation can explicitly and consistently be construed as permitting the use of electronic communication.
The order will provide for the electronic submission, receipt and handling of planning applications, including outline planning and reserved matter applications; applications for listed building and conservation area consent; applications to mineral planning authorities; applications for determination of whether prior approval is required; applications for certificates of lawful use of development; planning appeals; listed building and conservation area consent appeals; and enforcement notice appeals, including listed buildings and conservation area enforcement appeals.
The order relates only to part of the planning system, and we have in hand the preparation of a
Column Number: 004
further order to deal with advertisement consents and appeals. Further section 8 orders might be needed, but future primary and secondary legislation will be prepared so as to ensure that it is compatible with electronic working.
As I have mentioned, the order facilitates electronic handling of parts of the planning system, so does no more than create an opportunity for those who wish to use an electronic, rather than paper-based, planning system. The existing paper-based system will continue to operate for as long as those engaging in the planning system wish to use it. However, the potential benefits of engaging in the planning process electronically are considerable. They include faster—almost instantaneous—transmission between parties; reduced postage, packing, photocopying and printing; reduced storage space for papers and files; closer links between participants in the planning system; better access to guidance, support and tools to support the planning process; and, in particular, more open access to the planning system for all parties.
Consumers of the planning system—whether applicants, local residents, amenity groups or even elected members—need a high-quality service commensurate with the needs of a fast-moving advanced economy in which people can access information more freely than ever before. Electronic service delivery in planning, or ''e-planning'', is central to meeting those needs, and the order is the lynchpin of the e-planning initiatives.
A fine example of e-planning is the planning portal, which was set up by the planning inspectorate with the support of the Office of the Deputy Prime Minister and the input of many local authorities and stakeholders in the planning system. It is the online national portal for England and Wales and provides a one-stop shop on all aspects of planning for everyone from members of the public to planning professionals. It covers both the public and private sectors. Its services range from online access to published guidance and advice to fully interactive transaction-based applications, such as online development plans and, if the order is approved, online planning applications.
The planning portal is much more than a website. It provides an extensive infrastructure and a framework of online services for central and local government to improve their planning functions. To date, more than 120 authorities have joined the planning portal and, by April, more than 20 local development plans will be live on it. That enthusiasm demonstrates the tide of interested local authorities keen to use the online application service. However, as I said, use of the service is dependent on the order being approved, which will put the electronic application on a sound legal footing.
The order does no more than facilitate electronic communications in the planning system. The existing paper system will continue to operate for as long as those engaged in the planning system wish to use it. The order does not introduce any new planning policies, but improves the existing system by removing obstacles to the effective use of electronic communications and storage in place of paper.
Column Number: 005
The order has been welcomed by key stakeholders in the planning system, including the Royal Town Planning Institute, the Council on Tribunals and the Local Government Association. The Council on Tribunals considers that the approach to give people the opportunity to communicate electronically while continuing the operation of a paper-based system for as long as people wish to use it, is absolutely right.
Given the non-contentious nature of the order, I commend it to the Committee and will try to answer any questions about it.
Mr. Geoffrey Clifton-Brown (Cotswold): On a point of order, Mr. O'Brien. I have raised this issue before and will raise it again. If those who manage the business of the House schedule these Committees at such an unreasonably early hour, surely it is reasonable to expect the Vote Office in Portcullis House to be open so that we can get papers, especially today's Order Paper, before the Committee starts. I took the matter up with the deliverer of the Vote and, for a time, the Vote Office was open. However, it was not open this morning, which is unreasonable. I know that the matter is not specifically within your remit, Mr. O'Brien, but I would be grateful if you passed my comments on to the relevant authorities.
The Chairman: Note has been made of the hon. Gentleman's reference to the supply of Order Papers. The House should function so that hon. Members can have all the details to which they are entitled.
Mr. Clifton-Brown: I am grateful, Mr. O'Brien.
Before I proceed further, I draw attention to the Register of Members' Interests. I am a fellow of the Royal Institution of Chartered Surveyors and may have property that could, at some stage in the future, be affected by the order, although it is not at the moment.
The Minister said that this is probably the most far-reaching change to the way in which the planning system operates since the Town and Country Planning Act 1947 was introduced. It makes sense to update the system so that those who wish to use electronic means may do so.
The purpose of my questions this morning is to probe the Minister to ensure that the interests of those who do not wish to use, or are incapable of using, electronic means are fully protected. After all, some people will use the planning system only once in their lives. They may not employ professionals and we must ensure that their interests are fully safeguarded.
I deplore the use of secondary legislation to introduce such a fundamental change. We have just had 12 sittings of the Planning and Compulsory Purchase Bill. There is no reason why the order could not have been included in that Bill—in primary legislation subject to the full scrutiny of Parliament, which is the proper democratic way of doing things. There is far too much of that type of legislation going through the House. Over half our legislation last year—4,000 items—was completely undebated. Some were debated in a 90-minute Committee such as this, in which there is an opportunity not to amend the
Column Number: 006
order, but merely to reject or approve it. That is unacceptable.
Having said that, it is necessary to probe the Minister on the order. As he said, the authority for the order is section 8 of the Electronic Communications Act 2000. Will every single future planning Bill and statutory instrument refer to electronic communication? It seems odd that a landmark planning Bill has been going through this place without mention of electronic communications—that is an odd way to run joined-up government.
I should like the Committee to consider articles 3 and 4. Article 3 is perfectly reasonable because it refers to the applicant opting to use electronic means, but under article 4 the applicant has to communicate with the local authority electronically. I want an undertaking from the Minister that planning proceedings will never follow as a result of an electronic communication without that being accompanied by a proper written notice, unless carte blanche evidence exists that the recipient has received the notice electronically. It would be unacceptable for proceedings to follow when someone has not received the notice or has not been given the appropriate opportunity to be heard.
Article 4 is therefore totally unreasonable. It fundamentally alters the working of the Town and Country Planning Act 1990—the most recent landmark Act. Section 329 of the Act is relevant to the order because it contains the fundamental information about delivering notices in the planning system. It is worth quoting the first few lines of the section:
''Any notice or other document required or authorised to be served or given under this Act may be served or given either—
(a) by delivering it to the person on whom it is to be served or to whom it is to be given; or
(b) by leaving it at the usual or last known place of abode of that person or, in a case where an address for service has been given by that person, at that address; or
(c) by sending it in a prepaid registered letter, or by the recorded delivery service, addressed to that person at his usual or last known place of abode or, in a case where an address for service has been given by that person, at that address''.
That is perfectly straightforward, and has been understood by professionals for decades. I worry that under the electronic system there will be cases where the electronic notice will not be received, and that could cause problems.
I cannot understand why article 6(3), under which an electronic notice can be served, states that where that communication is received outside a person's business hours
''it shall be taken to have been received on the next working day, and in this subsection, 'working day' means a day which is not a Saturday, Sunday, Bank Holiday or other public holiday.''
I thought that the purpose of an electronic communication was that it could be received immediately. I suppose that if e-mail is not part of a person's business, they may not check it every day. Will the Minister clarify that paragraph?
Column Number: 007
Paragraph 1 of schedule 1 refers to
''where the local planning authority maintain a website for the purpose of advertisement of applications, by the publication of the notice on the website''.
I have concerns about that provision. For those people with the appropriate electronic equipment—professionals and others—it is fine to have a system whereby all planning applications and planning matters are advertised on a website. However, that group in the population is bound to be smaller than the group that can read a newspaper. Until we can see that the system is working and most of the population are happy with it, I urge the Minister to ensure that important planning advertisements should also be maintained in written form in newspapers.
I move to paragraph 7 of schedule 1 on withdrawal of consent to use of electronic communications. It says:
''Where a person is no longer willing to accept the use of electronic communications for any purpose of this Order which is capable of being carried out electronically, he shall give notice in writing''.
He can then withdraw that consent. However, some provisions of the statutory instrument wrongly deem that, when a person makes an application, he will already have accepted the principle that he will receive all notices electronically. That is wrong. I dislike the word ''deem'', because it takes away a person's liberties. If a person must accept electronic communication, they should be warned clearly that on signing the application forms they are deemed to have given their consent for that. I want an absolute assurance from the Minister that no applicant will be penalised in any way if he withdraws his consent to receive the notices electronically. That is only reasonable.
The Minister shook his head when I mentioned that people making an application would be deemed to have agreed. I shall read from paragraph 2(7) of schedule 8:
''In a case to which this paragraph applies, and except where a contrary intention appears, the person making the application or claim or giving or serving the notice shall be taken to have agreed''.
I do not like that wording. It smacks of an authoritarian state. The citizen should have the right to agree whether to receive such notices electronically. It is not correct that an overbearing Government should force citizens to receive electronic notices.
I have a serious point to make on paragraph 2(4) of schedule 10, which states:
''The requirement shall be taken to be fulfilled where the application, notice, or other document or . . . the text concluding the agreement which is transmitted by means of the electronic communication is
(a) capable of being accessed by the recipient''.
All computer users know that computers have their quirks and sometimes go down. There will be cases where people who should have received a notice or a form do not receive it through no fault of their own, but because of faulty equipment or because a computer has gone down. In such circumstances, people would not be able to comply with the
Column Number: 008
timetables. I can foresee any number of problems. We must cater for such eventualities. What is the Minister doing to provide a safeguard?
The Planning and Compulsory Purchase Bill, especially clauses 41, 42 and 43, materially amends the Town and Country Planning Act 1990 and the Planning (Listed Buildings and Conservation Areas) Act 1990. The order also refers to those Acts. I want some assurance from the Minister about compatibility. I spent some time trying to ensure that the statutory instrument is compatible with clauses 41, 42 and 43, especially in light of the fact that the Bill made no reference to electronic communications. I expect that it is compatible.
Clause 41(4) of the Bill states:
''The regulations may also make provision as to . . . the form and manner in which an application for consent must be made''.
That is a catch-all phrase, which was presumably deliberately included by the draftsman to cater for such an eventuality. Will the Minister confirm that?