Clause
127When
development
begins Question
proposed, That the clause stand part of the
Bill.
The
Chairman: With this we may discuss clauses 128 and 129
stand
part.
Mrs.
Lait: I have only a brief question on clause 129. I note
that it refers to a building being erected, extended, altered or
re-erected. The building can only be used for
“the purposes for which the
building is authorised to be
used.” For how long does
that definition extend? Our country is covered with
buildings that started with one purpose and have been converted to
another. If an infrastructure development becomes redundant at some
point, the associated buildings become redundant—the
infrastructure could remain, but, for all sorts of reasons, the
building could become redundant. Is there, in essence, a covenant on
that building, or can its use be authorised to be
changed?
Alun
Michael: I have a question about clause 129(2), which
states: “If no
purpose is so specified, the consent is taken to authorise the use of
the building for the purpose for which it is
designed.” I would be
grateful if my hon. Friend can explain how the purpose is defined for
that subsection. I ask because of a recent planning application in my
area where there was a debate between members of the public and the
local authority, which had to reach a determination on the application,
about the purpose of a building that was being converted and the
intentions of the developers. Sometimes, the purposes are very
straightforward—for instance, with residential or commercial
properties—but sometimes they are considerably less clear, as
with this particular application. Will he explain what is meant
by “the purpose for
which it is
designed”? Is it a
question of what is set out in the application or is there some other
meaning?
Jim
Fitzpatrick: Clause 129 specifies that where a development
consent order is made that includes the erection or alteration of a
building, the order may specify the purposes for which the building can
be used. Where the development consent order is silent about this
matter, it is to be assumed that the building will be used for whatever
purpose it was designed. That provision ensures that the IPC can
specify, in the terms of a development consent, what a building will be
used for and thereby ensure that, subject to the applicant receiving
any necessary operational or safety consents from the appropriate
regulator, there will be no regulatory gap preventing him from using
the building for the purpose for which consent was
granted. In response
to my right hon. Friend, the nature or purpose of a building will be
determined and defined by the application. In response to the hon.
Lady, a building can be used for the purpose for which it was intended
or designed, but not only for that purpose.
I must confess that on reading
clause 129, I consulted my officials because it is the last clause that
I am responsible for in this sitting. I sensed that this was the
elephant trap because it did not look very convincing to me. I am
assured very strongly that this provision is for legal clarity in
respect of an application that is submitted for consent. It will ensure
that there is no gap at the end of the application and that, as I have
explained, the building can be used for the purpose for which it was
designed or for that which is stated in the
application—whichever is
appropriate.
Alun
Michael: I think that I understand what my hon. Friend is
saying, but I would like to be clear. The words in the clause mean that
it is not what a designer had in mind when they were drawing the plans,
but what is stated by the applicant in the application for permission
that determines the
purpose.
Jim
Fitzpatrick: My right hon. Friend is very experienced in
bringing legislation forward and in interpreting the words that are on
paper. Clause 129(2)
states: “If no
purpose is so specified, the consent is taken to authorise the use of
the building for the purpose for which it is
designed.” If the
application does not say that it will be an extraction room, but it is
clearly an extraction room because of the nature of the equipment that
is in it, the fact that the application is silent on that issue will
give some certainty to those who are watching the construction as to
the nature of the
building.
Mrs.
Lait: So that I have got it on the record, if a building
subsequently becomes redundant, can somebody apply for it to be used
for another purpose? I would like just a quick yes or
no.
Jim
Fitzpatrick: The answer is a clear yes, as I tried to
explain. Question
put and agreed
to. Clause 127
ordered to stand part of the
Bill. Clauses
128 and 129 ordered to stand part of the
Bill.
Clause
130Development
without development
consent
Robert
Neill: I beg to move amendment No. 27, in
clause 130, page 60, line 39, at
end insert— ‘(1A) The
measuring and marking out of land shall not constitute development for
the purposes of this
section.’. We
have another change of personnel and voice to keep everyone with us.
The amendment would ensure that there is an effective time limit for
the new criminal offence. After all, it involves a substantial
financial penalty: £50,000 on summary conviction, which is well
above the normal rung for such matters, and an unlimited fine on
indictment. Therefore, it clearly envisages a harsh penalty.
Against that situation, it is
right and proper that there should be an effective time limit for the
bringing of proceedings, as with all criminal offences.
Clause 132, as it stands, provides for a four-year time
limit for bringing charges for committing the new
offence— [Interruption.] I have read the
wrong sheet, and am grateful to hon. Members for correcting me. I have
my briefing notes here and have moved on to the wrong clause. When dealing with a
substantial financial penalty, it is important that it is proportionate
to the operation concerned, and amendment No. 27 would deal with some
case law, sometimes referred to as the Malvern hills case, about the
definition of what the commencement of development can be. In a
nutshell, the Malvern hills case indicates that setting out the pegs
for laying out a road constitutes the commencement of development.
Perhaps other members of the Committee have a more detailed awareness
of these issues than I do, but that case certainly seems to be well
settled and the lawyers, who naturally take an interest in those
matters, have advised us that that is the potential
situation. Is it
really proportionate, which is the issue that the amendment seeks to
raise with the Government, to put someone at risk of such a substantial
financial penalty when all that has happened is in itself a minor
operation? I can see that it has consequences and should be stopped if
unauthorised. We are not talking about anything to the contrary, but
there are other mechanisms to stop that development. It seems to us
that that does not come into the same category of someone who carries
out a significant piece of
development.
Mr.
Llwyd: The hon. Gentleman is right, because when one looks
at clause 127(2)(e), one sees that it states that “Material
operation” will include
“an operation in the course of
laying out or constructing a
road”. An anomaly will
be entrenched in the
Bill.
Robert
Neill: I am grateful to the hon. Gentleman for that. He
reinforces our point. Given that that could be rectified much more
readily through the other procedures available, it seems excessive that
someone who simply sets out the pegs potentially commits an offence
that brings down such a penalty.
Part of our concern throughout
has been that the Bill and the regime that it sets out command public
confidence. It seems to be excessively heavy handed and out of
proportion for someone who might act in good faith to be liable for
that criminal offence because of a misapprehension about the position,
despite having been put right. Indeed, a four-year time limit for the
bringing of proceedings seems to be simply too much, and that is why we
seek to place that modest, but important, limit in the interests of
fairness.
Mr.
Llwyd: I support the amendment and will give an example
from the area in which I live. In Aberdovey, which is a small, charming
village on the Cardigan coast, about 200 planning permissions going
back to the 1960s are still viable because of a tiny amount of work on
laying out the roadway into the village. The consequence has been that
anyone along that coast seeking planning permission, even for one
house, is told, “I am sorry. There are too many permissions
already.”
12.15
pm I agree that a
development should be far more substantial to qualify as material.
Otherwise, unfortunately, there will be land banks here, there and
everywhere. People will decide to invest their money in a piece of land
for development, put in a slight amount of infrastructure, leave it
there for 25 years, and, bingo, there is their pension policy. At the
same time, it will skew all planning policy and practicalities in the
local area, as I have seen, to the detriment of my constituents. I hope
that the Government will seriously consider the
amendment.
The
Parliamentary Under-Secretary of State for Communities and Local
Government (Mr. Parmjit Dhanda): It is a
pleasure to serve under your chairmanship, Sir John, albeit in the
autumn days of this Committee
sitting. I will give
some reassurance to the hon. Members for Bromley and Chislehurst and
for Meirionnydd Nant Conwy. The amendment seeks to ensure that the
measuring and marking out of land does not count as development, for
which a person could be prosecuted if they did not have a consent
order. Marking out land is quite different from the definition of
laying out a road—they are quite separate and different things.
I do not believe that the amendment is necessary. Under clause 127,
development will be taken to have begun when a
“material operation comprised in
the development begins to be carried
out.”
Robert
Neill: Is the Minister saying that those who advise him
can reassure me that the laying out of pegs on the site, under
circumstances such as we and the hon. Member for Meirionnydd Nant Conwy
have been talking about, would not be caught by the definitions in the
Malvern hills
case?
Mr.
Dhanda: I will make the situation clear by going through
the list of enforcement issues that are relevant and those that are
not, for the benefit of the
Committee. A material
operation is defined in clause 127(2)
as “(a) a work of
construction in the course of the erection, extension, alteration or
re-erection of a
building”. —that
is obviously not a mapping out, as in the hon. Gentleman’s
amendment— “(b)
a work of demolition of a
building; (c) the digging of a
trench which is to contain the foundations, or part of the foundations,
of a building; (d)
the laying of an underground main or
pipe— (i) to
the foundations, or part of the foundations, of a building,
or (ii) to a
trench... (e) an
operation in the course of laying out or constructing a road, or part
of a road; (f) a
change in the use of land which constitutes material
development.” The
measuring and marking out of land therefore does not count as
development under the legislation, with the sole exception of laying
out a road that is specifically catered for.
I must re-emphasise to the
Committee that clause 130 is specifically about nationally significant
infrastructure projects that do not have consent. That is important.
Clause 131 is a slight variant on that, and deals with a situation
where a person has consent but is deviating from
it.
Dan
Rogerson: The Minister is right to point out that some of
these matters might more properly have been discussed under other
clauses—such as clauses 126 and 127, on when development
begins—that we have skipped over as we have rapidly made
progress. I do not
know whether the Government have considered this question, and I hope
that it is not out of order, Sir John, but it concerns me whether, once
development has begun, there is a period within which it should be
completed. We have doubtless all seen examples in our constituencies of
a building being begun and then being left for a long time, but the
development consent standing because some work has been going on. Have
the Government looked at that issue, too? A major infrastructure
project could be begun and then halted, for whatever reason, for a
number of years, with environmental consequences for people in the
surrounding
area.
Mr.
Dhanda: Yes, and the hon. Member for Bromley and
Chislehurst is coming to that issue with amendments to clauses in part
8. I hope that I have managed to give the assurances that the hon.
Gentleman sought. The amendment is consequently unnecessary and I urge
him to withdraw
it.
Robert
Neill: I am only partly reassured. I understand the
Minister’s intentions, but concern remains about how the
definitions that he read out from the Bill are likely to be construed
if it comes to litigation in court. We have imported “material
development” from the town and country planning legislation into
the second element of the test. The Malvern hills case was decided
under that legislation. I am not sure that we have yet got to a stage
where we have effectively excluded a result that we both seem to want
to achieve. Perhaps I can leave it this way: we will take further
advice. If I do not press the amendment now, perhaps there could be
some discussion to ensure clarity. If not, we might need to return to
this issue on Report. That said, I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Question
proposed, That the clause stand part of the
Bill.
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