Mr.
Curry: My hon. Friend the Member for Bromley and
Chislehurst is concerned that developers might get walloped unfairly
for what they do. My concern is that they do not get walloped enough
for the things they do unfairly. Some developers are given an inch and
they try to take a mile. They know that the local authority will be
very reluctant to take enforcement action because it costs an arm and a
leg. The entire budget of the smallest local authorities that are
planning authorities may be £7 million or £8 million.
Even a
fairly significantly sized local authority would have a budget of less
than £20 million. Planning officials are therefore extremely
reluctant to commit the local authority to embark upon a great case for
enforcement. Equally, they are often reluctant to refuse planning
permission because they do not then want to have to face the costs of
going to the inquiry and contesting that planning permission.
In many ways the odds are
rather stacked against local authorities. We know that some companies
resent the whole business of planning permission in any case; they
regard it as unnecessary bureaucratic interference. They get permission
for X, and they do X plus, and there is a deliberate challenge to the
local authority to take enforcement action. The roof-lines might be
somewhat higher than agreed; the intensity of development might be
somewhat more than planned. Equally, we all know that in the corner of
a field there might be a shed, and five years later 5 acres of
landscaped gardens and goodness knows what else has been built there
without planning permission. A deliberate gamble is taken that the
local authority will eventually cave in.
I subscribe to the belief that
we should try to make planning more rapid, effective and transparent,
but the quid pro quo is that where people deliberately try it on, the
powers to prevent that from happening should also be reinforced. I
should be grateful if the Government considered looking at this issue
so that, perhaps during the Bill’s later stages, we can get more
of a balance. We need to balance the acceleration that we all agree is
necessary with the reassurance that it will not mean that people who
are somewhat cavalier with the rules will get away with it, because of
local authority reluctance, for whatever reason, to get into the
significant legal tangle of taking enforcement measures that could even
result in the demolition of the development
itself.
Mr.
Dhanda: That is a very helpful contribution, and those are
the steps that part 8 tries to take. It is not just about the hefty
fine of up to £50,000 for developments without consent, which
has already been mentioned. The later clauses in part 8 make it
incumbent on developers who do not have permission to take down the
development in question in some cases; indeed, under certain clauses
the local planning authority can enter the land, take the development
down and bill the developer for doing so. I hope that that reassures
the right hon. Gentleman that this clause and others in part 8 take
into account his understandable concerns.
Question put and agreed
to. Clause 130
ordered to stand part of the
Bill. Clause
131 ordered to stand part of the
Bill.
Clause
132Time
limits
Robert
Neill: I beg to move amendment No. 420, in
clause 132, page 61, line 28, leave
out paragraph (a). I
return to the matter that I inadvertently anticipated
earlier—the time limits for bringing
prosecutions. The clause puts a four-year time limit on bringing
prosecutions
for the new offence of carrying out development without consent or of
breaching the terms of an order granting consent. However, under the
clause, someone could be charged with one of the offences after the
expiry of the four-year time limit if the local authority had applied
for an injunction under clause 141 or if it had been served with an
information notice under clause 137. The injunction probably relates to
something that is fairly significant: a development that actually
happened and on which some restraint is required. There will be some
certainty in such a case because there will be a hearing on the
injunction and the court will make a definitive order. I am more concerned about the
use of the information notice under clause 137 because it would require
the person on whom it is served to provide information about any
operations they are undertaking to enable the authority to determine
whether one of the criminal offences has been committed. The notice
would then hang over that person, whether or not the information
process is proceeding. Once the notice is served, the time that it
takes for that notice to be complied with—it will depend on the
complications and nature of the works that are going on—will
extend the time available for bringing proceedings. If an authority
were strongly opposed to a developer, the time available could be
stretched considerably longer than the four-year period.
Most people who have been
involved in these things know that quite often in development, there
may be a minor infringement of the conditions by, perhaps, a
subcontractor acting in good faith. If those infringements are dealt
with sensibly, the problem can be put right. In theory, however, the
authority would be able to serve an information notice and trigger the
provisions of the Act. Even if the information notice was served very
shortly before the expiry of the four years, until the whole rigmarole
was complied with, the risk of criminal prosecution would
arise. If a lot of
notices were served, one after the other—as far as we can see,
there is nothing to stop that if the local authority comes back with
another notice after the first one has been served—the time in
which there is a threat of prosecution would continue well beyond the
four-year period. I suspect that that is an unintended consequence of
the proposal, and the amendment would remove it.
Our view, which is held by
many practitioners in this sector, is that although we do not have a
problem in principle with the enforcement provisions of development
consent orders, they might be better served if they followed the
existing enforcement regime under section 171B of the Town and Country
Planning Act 1990. That is why we tabled the amendment and it will be
interesting to hear what the Minister
says. 12.30
pm
Dan
Rogerson: I listened closely to what the hon. Member for
Bromley and Chislehurst said in his case for the amendment. However, I
also have in the back of my mind the case put forward by the right hon.
Member for Skipton and Ripon about ensuring that enforcement is as
powerful as possible. There are many cases every week around the
country of smaller developments of the nature that he mentioned, such
as
where roof lines are built slightly too big. However, we are talking not
about that, but about very significant
projects. It
is unlikely that the developers that we are talking about, having
invested so much time in this process, will step outside the law. I do
not think that there will be many cases of that. Having invested much
time and effort in getting a huge application such as this through the
process, it is unlikely that they will jump the gun. However, it is
important that there is a clear provision that is as flexible as
possible for enforcement to be carried out. On this occasion, I am not
sure that I agree with the hon. Member for Bromley and
Chislehurst.
Mr.
Dhanda: There is an interesting piece of triangulation on
the Committee because I am inclined to agree with the hon. Member for
Bromley and Chislehurst. In a peculiar way, that gives the right hon.
Member for Skipton and Ripon what he has been asking for all this time.
He was saying that we have not given in on
anything. I suspect
that the hon. Member for Bromley and Chislehurst has been talking to
his old friends in the Law Society, and I confess that he is on to
something. He expressed concerns that the clause, which is about
invoking time limits for enforcement action, will mean that if an
information notice is served under clause 137 before the expiry of the
four-year time limit, a developer could find themselves faced with the
indefinite threat of legal proceedings, under one of the new criminal
proceedings. That may well happen because a local authority that is for
ever opposed to a nationally significant infrastructure project could
choose to use this process as a mechanism to keep the enforcement
going. I am sympathetic to that
point. The Government
are considering the application of time limits to the enforcement
provisions. In doing so, we will be happy to take the hon.
Gentleman’s concerns into account and will come back to him at a
later stage. Although I am not accepting his amendment as worded, due
to the potential consequences attached to it, I am happy to return to
the matter and take on board what he has said. He has a fair
point.
Robert
Neill: I am grateful. In a different Bill Committee, on
which the Under-Secretary of State for Transport, the hon. Member for
Poplar and Canning Town (Jim Fitzpatrick) served, this would have been
described by my hon. Friend the Member for North-East Bedfordshire
(Alistair Burt) as a “champagne moment”. I am very
grateful to the Minister and will relay what he has said back to those
who open champagne in the Temple and the Inner Temple. I accept his
point and if we can find a way forward, I will be grateful. I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
132 ordered to stand part of the
Bill.
Clause
133Right
to enter without warrant
Robert
Neill: I beg to move amendment No. 28, in clause 133, page
61, line 37, at end insert
‘provided that 24 hours notice of the
intended entry has been given to the occupier of
land.’.
The
Chairman: With this it will be convenient to discuss
amendment No. 29, in clause 133, page 61, leave out lines 38 to
40.
Robert
Neill: The amendments are about
proportionality in respect of rights of entry. Quite simply, they seek
to redress the balance. We understand that there will be circumstances
in which rights of entry are appropriate, but we are concerned that the
Government are going too far in giving draconian powers of entry to
people’s property and, in some instances, to what may be their
home. We do not agree
with the Government’s contention that it could be appropriate
for somebody to enter a dwelling without notice, and so have tabled
amendment No. 29. The Government are proposing that someone can go in
with 24 hours’ notice being given to the occupier of a dwelling.
We think that that is very limited. If somebody is away, for example,
that does not give them very much time at all, yet it is a significant
intrusion into their home. That is why we are saying that if someone
wants to go into someone’s home, they should get a warrant under
clause 134 rather than rely on the power to enter without one under
clause 133. I
understand that there will be circumstances in which someone will wish
to enter other premises—business premises and so on—and,
because that involves less intrusion into people’s private
lives, to which they have a right under domestic law and the European
convention on human rights, we do not have quite the same difficulty
with that. However, we think that there ought to be an attempt to give
notice first. The
trigger should be that if the premises is a business premises, someone
should seek to give notice and, if that is not possible, go in without
a warrant. If it is a dwelling house, or a family house, it is not that
onerous to get a warrant. It does not really take that long to get one.
Those of us who have had experience in criminal law will know that a
warrant can be applied for quickly if there is an emergency. I
appreciate that there will sometimes be such cases, but entry to a
dwelling should require the extra
safeguard.
Mr.
Dhanda: I am afraid that I am not about to give in again
to the hon. Gentleman. [Interruption.] The bubbles
are evaporating
indeed. The clause is
about enforcement. The idea of a dwelling on the site of a nationally
significant infrastructure project is an interesting notion. It almost
goes back to the point made some days ago by the hon. Member for
Beckenham about nuclear fusion—perhaps within a household, who
knows? It
is quite fair for the clause to require 24
hours’ notice if we are talking about the remote possibility of
a house on a site where there is development taking place, or if there
is a nationally significant infrastructure project at the bottom of the
garden. The Bill is consistent with the Town and Country Planning Acts.
It gives the local planning authority the element of surprise in the
likely scenario that it is actually the developer on the site who is
perhaps doing something that he should not be doing. For those reasons,
enforcement is important.
Robert
Neill: I shall return to the issue of what dwelling houses
might be on a site. Is the Minister’s advice that the clause
would not permit entry into a dwelling that is not on the site of a
major infrastructure structure project—it might be the home, let
us say, of the developer or the engineer—to seize documents,
plans and other correspondence that might indicate whether instructions
had been given to carry out works on the site? It seems that if someone
were carrying out the investigation, one of the things that they might
seek to do is to go into the offices to get the drawings, for example.
That is the situation that I am particularly interested in. Is the
Minister saying that that would not be
covered?
Mr.
Dhanda: I am saying that the clause is specifically about
getting on to a site. We will be moving on to another clause, and
amendments tabled by the hon. Member for North Cornwall, that deal with
a local planning authority not being able to access a site, the role of
the justice of the peace, and giving a period of forewarning prior to
accessing a site. Clause 133 gives an important power to local planning
authorities to get on to a site, and to do so with an element of
surprise.
Robert
Neill: I understand much of what the Minister says. I do
not want to sound ungrateful, but I have some residual concerns. It is
possible that they can be met, but first I should speak again to those
to whom I spoke about the previous clause. If concern remains, we can
return to the matter on Report. I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Clause 133 ordered to stand
part of the
Bill.
Clause
134Right
to enter under
warrant
Dan
Rogerson: I beg to move amendment No. 405, in
clause 134, page 62, line 16, leave
out ‘a reasonable period’ and insert ‘14
days’. This
debate is related to that prompted by amendments Nos. 28 and 29. It is
to do with the phrase “reasonable period”. Hon. and
learned Members may well tell me that that is a standard phrase and
that I should not be alarmed about it. The amendment simply suggests a
period within which people should be notified that a warrant has been
issued. The word “reasonable” could be open to
interpretation.
Robert
Neill: I have some sympathy with the amendment. I am
open-minded about it because such phrases are used in other statutes.
However, there is always an advantage in clarity, so I shall be
interested to hear what the Minister has to say.
Sadly, the term “hon.
and learned” has a particular connotation in the House; it
requires appointment to a rank that, despite my career at the bar, no
Lord Chancellor has yet thought suitable for me. If the hon. Gentleman
wants to write a note for next year’s round, his support would
be gratefully received.
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