Planning Bill

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Clause 127

When 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 130

Development 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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