 House of Commons |
Session 2004 - 05 Publications on the internet Standing Committee Debates |
Fifth Standing Committee on Delegated Legislation |
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Column Number: 1 Fifth Standing Committee on Delegated LegislationThe Committee consisted of the following Members: Chairman: Mrs. Irene Adams †Buck, Ms Karen (Regent’s Park and Kensington, North) (Lab)†Clark, Paul (Gillingham) (Lab) †Cooper, Yvette (Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister) †Cryer, John (Hornchurch) (Lab) †Davey, Mr. Edward (Kingston and Surbiton) (LD) †Gilroy, Linda (Plymouth, Sutton) (Lab/Co-op) †Green, Matthew (Ludlow) (LD) †Hammond, Mr. Philip (Runnymede and Weybridge) (Con) Lewis, Mr. Terry (Worsley) (Lab) †Luff, Mr. Peter (Mid-Worcestershire) (Con) †Miller, Mr. Andrew (Ellesmere Port and Neston) (Lab) †Munn, Ms Meg (Sheffield, Heeley) (Lab/Co-op) †Paice, Mr. James (South-East Cambridgeshire) (Con) †Prisk, Mr. Mark (Hertford and Stortford) (Con) †Sawford, Phil (Kettering) (Lab) †Stinchcombe, Mr. Paul (Wellingborough) (Lab) Ian Cameron, Committee Clerk † attended the Committee Column Number: 3 Thursday 24 March 2005[Mrs. Irene Adams in the Chair]Town and Country Planning (Temporary Stop Notice)(England) Regulations 20059.55 amMr. Philip Hammond (Runnymede and Weybridge) (Con): I beg to move,
Our purpose in seeking this debate is to ensure proper scrutiny of the regulations and to expose the weaknesses of the temporary stop notice procedure, which have been clearly identified by local authorities and Traveller groups. I am not suggesting that the procedure is wholly useless: it may force a modification of the tactics adopted by some of those intent on abusing the planning system and exploiting the human rights legislation to carry out unauthorised development. But temporary stop notices will not, to any significant extent, address the problems of unauthorised Traveller development, which I shall outline in a moment. During the passage of the Planning and Compulsory Purchase Bill, we welcomed the late inclusion of the temporary stop notice provision. In the Bill, the powers looked workable, but in practice, as I shall explain, they are neutered by other legislative provisions, by Government guidance and, indeed, by these regulations. I shall not ask my hon. Friends to vote against the regulations, because the essential provision—the disapplication of the powers granted by section 52 of the Planning and Compulsory Purchase Act 2004 for caravans occupied as a main residence—does no more than acknowledge the constraints that the Human Rights Act 1998 imposes on the basis of the legal precedent of case law. In effect, the regulations merely internalise a restriction on the use of temporary stop notices, which the courts would, inevitably within the present legislative framework, impose in due course. As such, the notices are almost irrelevant, although they will at least help local authorities to avoid wasting time and money testing the new so-called powers and then being defeated in the courts. Mr. Edward Davey (Kingston and Surbiton) (LD): If the hon. Gentleman’s party decides to repeal the Human Rights Act because of concerns about this issue, will it also remove the UK’s signature from the European convention on human rights? Mr. Hammond: My right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) has said that we shall look at ways of modifying the application of the 1998 Act to avoid it being used to
Mr. Andrew Miller (Ellesmere Port and Neston) (Lab): So the hon. Gentleman will try to amend the Human Rights Act, but he cannot tell us today what amendments he would make and he will not vote against the regulations. Are we therefore simply going to have an hour and a half of a party political broadcast? Mr. Hammond: No, what we are going to have is an attempt to show the Committee that the procedure, with these regulations, will not do what Ministers, including the Prime Minister, have indicated. They will not provide the solution— Mr. Miller rose— Mr. Hammond: I shall not give way to the hon. Gentleman again just at the moment. The provisions will not provide the solution that we believed in good faith that Ministers thought they would achieve when they introduced them in the Planning and Compulsory Purchase Act 2004. The Government are holding up the temporary stop notice procedure as the answer to the problem. It is not, and it cannot be; it is a bogus offer. That is essentially the charge that we are presenting to the Government today. I am not sure whether they knew that it was a bogus offer all along. I suspect that they did not, and that Ministers genuinely believed during the passage of the Planning and Compulsory Purchase Act 2004 that the measure would help to prevent the use of caravans on unauthorised developments. I have to believe that they believed that. If they did not believe it, the announcement of this new power will have been a wholly a cynical exercise. As I said, it seems that not even the Prime Minister was let into the secret. In answer to an oral question from me on the temporary stop notice procedure, he said:
He went on to say:
Our charge is that the Prime Minister had not been properly briefed by the Deputy Prime Minister, who was, incidentally, sitting right next to him as he gave that answer. The Prime Minister clearly believed—otherwise he would not have given such an answer—that the measure would be effective. Column Number: 5 Ms Karen Buck (Regent’s Park and Kensington, North) (Lab): The hon. Gentleman used the words “bogus” and “cynical”, and said that the provisions were ineffective. If I regarded a proposal as bogus, cynical and ineffective, I would vote against it. Why, having made those charges, is he not prepared to vote against this measure? Mr. Hammond: If the hon. Lady had been listening, she would have heard me say that when Ministers introduced the power into the 2004 Act, they must have believed that it would be effective. If they had not held that view, introducing it would have been a wholly cynical manoeuvre. I would not suggest for a moment that they would indulge in making a wholly cynical manoeuvre. Mr. Davey: Will the hon. Gentleman give way? Mr. Hammond: I shall give way to the hon. Gentleman again, but if he wants to conduct the debate by intervention, I hope that he will not chastise me later for taking up too much of the Committee’s time. Mr. Davey: I thought that debates usually were conducted by intervention. I am sorry if I was somehow misled. Will the hon. Gentleman explain why his leader, the right hon. and learned Member for Folkestone and Hythe, said in announcing the Conservative party’s policies earlier this week that stop notices were not working, when they have not really been introduced? Was he badly briefed by the hon. Gentleman? Mr. Hammond: They have been introduced; they came into effect on 7 March, as the hon. Gentleman will know. Mr. Davey: Exactly. Mr. Hammond: It is a nice debating point, but the hon. Gentleman has good contact with local government representative organisations, and he well knows that they are clear that the temporary stop notice procedure will not give authorities a power that they can use for the principal purpose for which it was introduced. If I may make a little progress, I shall explain why that is the case. I should like briefly to outline the background to this problem. There has been a growth in the number of unauthorised encampments; at the last count, there were 4,000-plus caravans unauthorisedly encamped in this country, which represents a 38 per cent. increase since 1997, when Labour came to power. There is clear anecdotal evidence that there has been a significant migration from the Republic of Ireland, partly as a result of tighter laws introduced there. By and large, Romany Gypsies will not co-exist on sites with Irish Travellers. In some cases, where there has been inward migration of Irish Travellers onto existing sites, the Romanies have been forced out on to unauthorised sites. I believe that that is what happened in the case of the settlement at Cottenham in the constituency of my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice). Column Number: 6 Some of the camps have been established by Travellers as trespassers, while others have been established on land that Travellers have legitimately purchased and owned, but without the benefit of planning consent for development. Some of them are temporary roadside transit camps, while others are much more permanent and contain dwellings that are mobile only in the most technical sense—that is, they are unlikely to travel, but are capable of being removed and re-established elsewhere with only modest economic loss if eviction ultimately occurs. This is a complex, multi-dimensional problem. A relatively recent pattern has developed in which there has been overnight—“over-weekend” is perhaps more accurate—establishment of such settlements. Hard-standings, roads, drains and septic tanks are established, and local authorities have sometimes been too slow to respond to is going on. To date, the principal tool for local authorities has been the enforcement notice under the Town and Country Planning Act 1990, followed occasionally by a stop notice. There have been two problems with that procedure, which the Government have recognised. First, an enforcement notice is not effective if a retrospective planning application is subsequently made. The enforcement proceedings are then stayed for the duration of the planning application and appeal process, and during any subsequent court appeal of those proceedings. That period can last for about two and a half years, given the current state of the planning system. Secondly, local authorities are reluctant to use their stop notice powers under the old legislation because of exposure to compensation claims. The temporary stop notice procedure in the 2004 Act appears to offer a solution. On the face of it, a notice that prohibits development and requires discontinuance of use, does not require an enforcement notice as a prior condition and is effective for 28 days should give a breathing space for local authorities to take further action. That is why we welcomed the original announcement and, to give Ministers the benefit of the doubt, I genuinely believe that that is what they thought the provision would do. Human rights legislation attacks the heart of the concept behind the provision, however, leaving the temporary stop notice mortally wounded almost before it has even got off the ground. The regulations recognise that fact. Regulation 2(2) prescribes the circumstances in which a temporary stop notice will not be effective, as provided for in section 171F of the Town and Country Planning Act 1990, which was inserted into that Act by the Planning and Compulsory Purchase Act 2004. The regulations are being made to pre-empt a human rights attack on the legislation. There was incredulity among local authorities and Members of this House, who had also cautiously welcomed the original announcement, when they saw the regulations. Under the heading, “Circumstances in which temporary stop notice does not prohibit stationing of caravan”, regulation 2(1) states: Column Number: 7
The circumstances are those in which a temporary stop notice cannot apply. It cannot apply if
A measure that was announced as a solution to the establishment of unauthorised Traveller camps has a specific disapplication to caravans occupied as a main residence—virtually 100 per cent. of caravans that will be found on unauthorised Traveller camps. Mr. Davey: Will the hon. Gentleman confirm that paragraph (2) applies only to the stationing of caravans, and that it does not prohibit the temporary stop notice from applying to any development, to any laying down of hard core or drains, or to any other such activities, including cutting down trees? Mr. Hammond: The hon. Gentleman is right. I shall talk about that issue in a moment. Before I do so, however, I need to acknowledge the rest of paragraph (2), because it contains an override provision. The temporary stop notice does not prohibit the stationing of a caravan in the circumstances that I outlined
Mr. Peter Luff (Mid-Worcestershire) (Con): I do not have access to the consultation documents, but am I correct that the original phraseology referred to the harm to amenity, and that that has been changed to “compelling public interest”? What does my hon. Friend think is the significance of that change? Mr. Hammond: Clearly, the significance of the change is that it has created a much higher hurdle for a local authority to clear before using the power that is apparently given. Perhaps the Minister can let us in on the thinking behind that change. The truth is that it is a tough test, which is made tougher by interpretations of the court and the Government guidance on matters to be taken into account. As the Minister and the hon. Member for Kingston and Surbiton (Mr. Davey) know, local authorities have made it clear that they would be reluctant to risk applying the override provision. In effect, it replicates the essential weaknesses of the stop notice in the 1990 legislation. In that case, there was a vulnerability to compensation; in this case there is an almost guaranteed challenge to any use of the override provision in relation to an order for the cessation of residential use of caravans. Local authorities and Traveller groups alike are clear that the temporary stop notice procedure will not in practice be used to prevent residential occupation of caravans. I accept the point that the hon. Member for Kingston and Surbiton has just raised. On the face of it, looking strictly at the 2004 Act and the regulations
The measure will work as originally intended, however, only if those who propose to develop a site are entirely stupid. I can tell you, Mrs. Adams, that they are not stupid. They are generally well advised and accompanied by people who are experienced in the procedures relating to such matters. They are backed up by the availability of a telephone legal helpline provided at the taxpayers expense, at a cost of more than £300,000 in the past three years. The Minister initially sought to deny that in a written answer to my hon. Friend the Member for Meriden (Mrs. Spelman), but she was later forced to admit it. Even then, she did not quite get the facts right. She told my hon. Friend:
The service did cost £50,000 last year, but what she did not mention was that in the previous two years it had cost £250,000. For the temporary stop notice to work effectively, it requires work on hard standings and so on to start without the vans being moved on and occupied. If the vans are moved on and they are occupied, their occupation cannot be prevented by a temporary stop notice. Neither can a temporary stop notice, as one might think, be issued in anticipation of the arrival of caravans—the intelligence-led approach. I am afraid that that is not possible, because section 171E(1)(a) of the Town and Country Planning Act 1990, inserted by the Planning and Compulsory Purchase Act 2004, requires that a breach must have already occurred before a temporary stop notice is issued. There will be a window of minutes when the legislation can be used to stop the residential occupation of a caravan. The notice will need to be served between the time when the first vans move on to a site and the breach begins, and the time when those vans are occupied as a main residence. No doubt judges will spend many hours deliberating on when that occurs, but I assume that it will be as soon as the caravans are unhitched and people are inside them going about their normal business. Assuming that there is a well-prepared and well-executed plan by the developer of the site, there is effectively no chance of the temporary stop notice being deployed against the residential occupation of caravans. The question that we then come to, which follows on from the point made by the hon. Member for Kingston and Surbiton, is how effective the limited power that appears to remain will be. We need to look at the surrounding legislation and guidance: the human rights legislation, particularly article 8, which gives the right to protection of a home, as well as the Government guidance on diversity in planning and the
I suggest that human rights legislation will severely curtail the ability of a temporary stop notice to prevent the essential ancillary works necessary to support continued occupation of caravans as a main residence, which is permitted by the regulations. Considering the decisions that the courts have handed down, which are, of course, out of our hands in this place, it beggars belief that they would find that human rights were infringed by denying occupation of a caravan for residential purposes, but not if works essential to allow that occupation to continue, such as the connection of drainage, the laying of hard standings in bad weather and so on, were not permitted. The issue will have to be tested in the courts, but that is our analysis and I should be interested to know whether the Minister disagrees. Mr. Miller: I am sure that the hon. Gentleman would agree that any judge considering that question would need to consider the ability of somebody who is travelling to use a caravan as a principal residence, which would involve stopping in legitimate overnight encampments where one does not have to connect to mains drainage and so on. He is flying a kite. He is right that the issue has not been tested, but I am sure that he would agree that the test should be whether there are connections to utilities that would make the caravan a permanent home. Where that has not happened, there is a gap in which action can be taken. Mr. Hammond: The hon. Gentleman is entirely wrong if he is suggesting that a caravan becomes a residence occupied as a main residence only once it is connected to services. Whether it is a residence occupied as a main residence is a matter of fact. If he is suggesting that we need not worry because some caravans do not need to be connected to drainage or have hard standings laid, I cannot quite understand his point. In those circumstances, there will be no opportunity for temporary stop notice. Mr. Miller: I am saying that the right to a home is a de facto right, because a caravan can be a principal home. Whether or not it is connected to facilities is irrelevant. The judges would find it tough to come down in the way the hon. Gentleman suggests. Mr. Hammond: I hear what the hon. Gentleman says, but I have read the guidance and heard what has been said in the considerable number of cases in which the issues have been considered. Those issues include the welfare of the people living in caravans, which relates directly to the connection and availability of sewerage and water, and so on. Such issues are relevant and they have been shown to be so. None the less, I accept what he says; ultimately, we do not know, and the question is for the judges to decide. What we do know, however, is that the Government’s diversity in planning guidance, which enshrines the principal of unequal treatment in the
That is the tone of the document, which severely restricts the ability of local authorities to apply their normal planning enforcement powers to situations involving certain groups of Travellers. The supplementary guidance to the management of unauthorised encampments that the Government issued on 7 March—the trespasser’s charter—either effectively removes local authorities’ powers to act against any unlawful encampment on public land or, I concede, at the very least freezes those powers pending the outcome of the House of Lords decision in the case of Maloney v. Leeds city council. I understand that further guidance on the use of planning powers by local authorities is to be issued in the light of human rights constraints. I see no reason to expect that that guidance will not similarly limit councils’ powers to act. Indeed, logically it must do so, but perhaps the Minister can throw some light on when it will be issued. The Minister’s parliamentary written statement of 10 February refers to a circular on the use of temporary stock notices, but where is it? I am not clear whether any of the various bits of paper on this subject with which we have been bombarded over the past few weeks is that circular. If, as I believe, it is has not been published—the intranet collapsed this morning at Portcullis House, so I have been unable to check for certain—it would have been helpful for members of the Committee to have seen it before the debate, so that they could understand what the Department says about how the notices will operate. Mr. Luff: My hon. Friend is making an important point. It would genuinely help the Committee if the Minister made that circular available to us now. That would inform the debate in an important and meaningful way. Mr. Hammond: I see that the Minister is busy studying a note, and that she is not accepting my hon. Friend’s invitation to intervene at this point in the proceedings. We will have to draw our own conclusions from that. The Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister (Yvette Cooper): I have my own copy of the circular, which was published on 7 March. I am slightly surprised that Opposition Members do not have copies, given their ability to search the Office of the Deputy Prime Minister website for every other document and piece of information about Gypsies and Travellers, and their enthusiasm for using, distorting and twisting such information in all kinds of ways to make their political points. Mr. Hammond: I am sure that you would wish to guide the Minister, Mrs. Adams, by telling her that no hon. Member would distort or twist information. I certainly would never suggest that hon. Members on the Labour Benches—even those on the Front
I recognise that the House of Lords decision in the south Buckinghamshire case this week is a positive step. It appears to restore some powers to local authorities to act, but that case was wholly exceptional, and other cases have gone the other way. At the moment, judges are making the law. Ministers are floundering and producing legislation that has to be constrained by regulation that is so restrictive as to neuter it as a result of the courts’ interpretation of human rights law. If we are to solve the problem and restore fairness and even-handedness to the planning enforcement system, we must be willing to tackle head-on the conflict between human rights and planning laws, and to resolve that conflict decisively in favour of planning laws. On Monday, my right hon. and learned Friend the Member for Folkestone and Hythe set out such an approach for the next Conservative Government. The alternative is anarchy—a situation in which anybody who feels that they have a need seeks to argue the right to develop land anywhere, regardless of its status, on the basis of their need for a home. The ramifications of that situation are extraordinary. Many hundreds of thousands of people in this country are desperate for affordable homes, and many of them would be able to afford a property built on land of agricultural value, but will never be able to afford a property built on legitimate development land. There are many hundreds of thousands—there are probably millions—more people in this country who are bluntly condemned to live in flats in urban environments without gardens or green fields around them, who would dearly love to live in a greenfield environment with gardens and open space around them, but we cannot allow urban sprawl of that nature, because of the damage it would do to our environment. |
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