Select Committee on London Local Authorities Bill Minutes of Evidence


Evidence Session (Sections 2500-2579)

DAY SIX

21 MARCH 2006

 2500. The debate would have gone on along these lines. "Are there any other sources from which the monies for that kind of improvement could be found? Are you yourselves, and here I am postulating the notion or question to those around the square, willing perhaps to contribute to the financing of improvements of this kind". The Honourable Society of Lincoln's Inn would have had an opportunity to do the very thing which they had to consider doing in the early 1990s when the issue was whether they should contribute to the re-election of the railings around the fields.

 2501. As a matter of law, as it happens, it was Camden's obligation and that becomes clear when you look at the proceedings that are in the ICM bundle. Lincoln's Inn must have taken the view, "Never mind what our strict legal rights are, let us be realistic and practical and recognise that Camden is not going to re-erect those railings and we are going to have an expensive court case which is going to cost thousands of pounds before that obligation is asserted by the court. Let us rather see whether an accommodation can be found".

 2502. The very same thing could have happened in this case. The consultation exercise would, let us assume, have resulted in general agreement that certain capital elements of expenditure were called for that needed funding and which Camden, as a matter of law, were going to be able to say, "…went beyond their maintenance obligation". Let us assume there had been consensus at the end of the day that there was £250,000 worth of much needed and desirable expenditure on Lincoln's Inn Fields that everybody broadly said, "It would be excellent if that was to be done". The next part of the debate would not have been to promote a Bill in Parliament, it would have been to see can we get the kind of funding for Lincoln's Inn Fields that Russell Square has so successfully got or can the money be raised by a variety of different quarters, including perhaps contributions from Lincoln's Inn. Then, all that having been tried and having failed, would have been the time the Committee may feel for a modest version of the clause that is currently before you to have been promulgated for the consideration of Parliament.

 2503. LORD FAULKER OF WORCESTER: I have been following that very carefully, I am very interested in what you are saying, Mr Laurence. What is there to stop exactly that process, which you have eloquently described for the last five minutes, happening now before the provisions of this Bill were to come into effect, if the Committee were minded to approve it?

 2504. MR LAURENCE: Nothing, but parliament does not legislate in vain. Parliament has to be persuaded that there is a need for the legislation that it is being asked to grant and it would be an incorrect use of this Committee's powers, I would respectfully submit, if it were to say, "We will legislate on the basis that it might be nice for Camden to have these powers, so we will grant them, even though we have not had proper evidence given to us that the powers are really needed". You can criticise uphill and down dale the chaotic way in which the evidence of what has actually gone on over the last there years has been presented to this Committee, and I do not intend to get into that very much at all, because what I am trying to do is to look at the principle of the thing and the principle of the thing, in my respectful submission, is susceptible to being analysed in the kind of way that I have suggested.

 2505. It would not follow, and this is intended to be a further answer to My Lord Faulkner, it would not follow that if this Committee were to reject this clause that it could not say in rejecting it that that is not to say the Committee might feel it was appropriate to indicate, that is not to say that under tightly constrained and appropriate circumstances that the Committee is turning its mind against the thought that there could be a version of this clause at some time in the future. It seems to me, with respect, that those of my witnesses who have rejected entirely the idea of there being private events in public spaces in order to raise money, may have gone further than the Committee would feel was appropriate, it is a matter for the Committee.

 2506. There is a purist view that you can take about this and that is that you have got a public space, the public have access to it and therefore there should never be any situation in which private events take place in such a place even if it is going to result in the raising of money which everybody agrees it is desirable should be raised and which cannot be raised from any other quarter, that is a purist view, and I think some of my witnesses have tended to say, "That is just tough, that is the position". They backed it up incidentally, perfectly respectably, by saying, "We like the Square as it is". Even just maintained properly, which is the obligation of the Council to do, we would be happy with that. If it means that there is no money for the bandstand unless people around the Square club together in order to raise it, that is fine. What we do not want is to open the door to a principle which is an objectionable principle in that of itself.

 2507. The other view would be to say no, the principle of raising money from private events in public spaces need not, of itself, be objectionable, depending on the circumstances and depending on the kind of case that is made to the Committee in support of such a provision being introduced. The Committee will look at it, parliament will look at it, and this Committee has the opportunity, I respectfully suggest, by effortlessly rejecting this clause, which is what it ought to do, to indicate the view that it takes on the position of the purist outlook, which is to say it is unprecedented, should not happen, and is not going to happen, or alternatively to say something to indicate that on a proper occasion under proper circumstances it is something that parliament might need to look at in the future. Such a debate could have been held, but such a debate has not, in my respectful submission, been held and the way that it has happened, and I do not really blame the Promoters, they are seeing what they can achieve and they are doing it for reasons that are perfectly respectable in that and there is no reason to doubt that the excellent Mr Stanton does not have Lincoln's Inn Fields' future very much at heart, he probably does have it very much at heart, but this clause, I say, is not the way to respond to his concerns.

 2508. If this Committee take the view that, as I say, there is a simple way of approaching the matter and that is to say Camden approached it the wrong way round, they did not consult, they did not see what other possibilities for raising money there might be, they did not even establish a general consensus as to what was needed and what it was going to cost. Under those circumstances the clause should simply be thrown out, that is the end of it, but I say that even if you look at it just in terms of the clause itself and whether it is acceptable as it stands, the starting position, as I just said to Lord Faulkner a moment ago, is you must be satisfied that there is a need for the provision and then you have got to look at the evidence that has actually been put forward to see whether that evidence satisfies the Committee that there are indeed one million pounds worth of improvements to the Square that need to be done in the future and the schedule of those alleged improvements, including half a million pounds for the laying of some sort of resin over the top of an already repaired tarmac surface, what is that about? No doubt it would be nice, but is it necessary, and if it is not necessary what is it doing there in the schedule in the first place? A quarter of a million pounds worth of re-planting. Re-planting features as it ought to do already in the maintenance schedule which Camden showed us. In saying that I do not wish to sound as if I am denigrating the idea of finding some things that could be done for the Square that would count as improvements, but to put it forward in that way, I respectfully just invite the Committee to say, "Not good enough, the history of how it has been done over the last three years, if this is what it is intended to mean, is not a good guide as to how it should be done in future".

 2509. My Lord Chairman, of course the criticisms that have been uttered so eloquently by Mr Robinson and others of the way in which things have happened in the past, cannot give the Committee any assurance that in future even under this clause there will not be problems. There are two problems which only very, very careful and tight drafting can do something about and in relation to the first of those the drafting is possibly a solution, I am afraid in relation to the second it is not at all.

 2510. The first problem I am talking about is noise. If you have written into your clause detailed protective provisions for the way in which the noise regime was to be kept control of during the holding of a particular function and could then be satisfied that that clause would, in reality, be applied, you might be able to say well now you are getting as close as you can to making sure that any functions that are held in the future would not cause unreasonable disruption and disturbance of people. Even then, I respectfully suggest, you would have to accept the evidence shows that despite his best endeavours, I am sure, even as time went on and the complaints began to mount, Mr Stanton and his staff were not able to keep proper control of it, so if you imagine that this clause is rejected, as I say it should be, and in future somebody puts forward a version of this clause, however tightly it is drafted, there are going to be problems about people saying, "Well it may say that in the clause, but we cannot be sure that it is going to be complied with" and then a balance is going to have to be struck and, in effect, the Committee are going to have to say - and this is the occasion for it to say it for all the reasons that I have mentioned - even then the Committee is going to have to say, "Well, is the price worth paying that is going to have to be paid in terms of disturbance and so on?"

 2511. Secondly, and no amount of drafting can cure this, there is a view that on a precious resource of this sort you simply cannot have ever intrusive structures being erected where the purpose of those structures is to hold private events that are intended to raise money in the way that we have seen and there you have to take a view and you would have to balance it against the fact that parliament has itself acknowledged that the erection of structures in a public place can be justified provided that it does not interfere too much with the general right of public access and provided that the erection of the structures are in connection with public events in the first place and so the fact that the Committee could well take the view that the erection of structures would constitute a visual intrusion during particularly the winter time, even though they are going to be lower than before and not take up as large a footprint and so on and so forth, the Committee may take the view that if everything else has satisfied them that that kind of visual intrusion was a price that could acceptably be paid, and I am willing to acknowledge that, but the point that I am trying to make, which I invite the Committee to take away with them, is that even if you just conduct the decision making process by reference to the idea that potentially this clause is the right clause, even as amended, it leaves certain very severe problems, in particular in relation to noise and the attendant traffic and the disruption whilst the structures are being erected and taken down, it leaves those problems unaddressed and there is no real way of addressing them. The question is have you been given sufficiently cogent evidence of the need for these powers to be able to say that those who are going to be affected by the exercise of the powers and to be able to say that those who have the specific protections given to them by the 1894 Act should find that those protections are taken away in a wider public interest, that is what it must come to, has that wider public interest been sufficiently established by the actual evidence that you have heard and, I respectfully suggest, it obviously has not.

 2512. I want to say a word, if I may, about the planning position. Our witness who gave planning evidence, Mr David Morris, was giving planning evidence because what he was saying was if Camden, or anybody else who wanted to run an event of the kind the clause contemplates, had to make an application for planning permission, there are certain policies of Camden itself which would require the application to be turned down and that is because the purpose of the structure that would have to be erected and the use to which the land would be put inside the structure, would not be ancillary to the use of Lincoln's Inn Fields as a public garden and Mr Morris, you may think, absolutely conclusively established that in refusing an extension of the opening hours for the restaurant, what Camden was properly doing was applying its own policies in order to say that that extension would not be consistent with the use of the café restaurant as being ancillary to the public open space and so they turned down the application.

 2513. What the witness was saying was, by parity of reasoning, parliament should be looking at these proposals against the background of Camden's own planning policies and asking itself notionally the question, "If we were to grant these powers, could the grant of these powers, and the exercise of them, reasonably be regarded as ancillary to the use of Lincoln's Inn Fields as a public open space?" The answer to that is plainly no, it could not, and it is not an answer actually to that line of reasoning to say, if it could be said, "Oh well in practice Camden is not going to have to apply for planning permission at all". The reason it is not an answer to that line of reasoning is that it is the point of principle that one is looking at to see whether it is appropriate that parliament should grant powers which would set up a mismatch between the powers that were granted and Camden's own planning policies and it plainly is not appropriate and there plainly is a mismatch and so for that additional reason the clause is flawed.

 2514. The Committee may feel that somebody from Camden in a position to talk about the planning policy should have given evidence. The chief planning officer should have been here to explain how it was that he could reconcile Camden's approach, for example, to the extension of the opening hours for the restaurant with the powers that were being sought in this House. Camden did not put forward any such person and they should have and the absence of such a person should lead the Committee to wonder whether there is not in fact a mismatch between what one bit of the Council wants and another bit of the Council wants.

 2515. The matter goes further, and it goes further in this way, that there is going to have to be planning permission in this case. If you can just pick up your green file at tab 6, please. This is slightly cold tile stuff, but I will try and make it as simple as possible. What you have got is an extract from The Town and Country Planning (General Permitted Development) Order 1995 and what you see Article 3 on the second page does is to provide this under the heading "Permitted development: Subject to the provisions of this Order and regulations 60 to 63 of the Conservation (Natural Habitats, &c) Regulations 1994 (general development orders), planning permission is hereby granted for the classes of development described as permitted development in Schedule 2".

 2516. If you then turn on to Schedule 2, or the extract of Schedule 2, which we have included, it is in part 4 under the heading, "Temporary Buildings and Uses" on page 39,089. You see Class A and then Class B. "Permitted development B. The use of any land for any purpose for not more than 28 days in total in any calendar year, of which not more than 14 days in total may be for the purposes referred to in paragraph B.2, and the provision on the land of any moveable structure for the purposes of the permitted use".

 2517. The intention behind Class B is to allow two things. It is to allow a material change in the use to which the land is currently being put as long as that change lasts for not longer than 28 days and it is permitting as well the provision of a moveable structure for the purposes of that limited permitted use. As soon as a garden ceases to be used as a garden in any material way, a question arises whether planning permission is going to be needed for that change of use and what Class B in part 4 to Schedule 2 of the 1995 Order is doing is laying down the circumstances in which there will be a deemed planning permission for such a change of use. Just as soon as a structure begins to be erected at a particular part of Lincoln's Inn Fields, in my submission, you have the use of a garden being materially changed to use for some other purpose and during that construction process and during the process of occupying the structure once erected there is a material change of use which is permitted as long as it does not go on for longer than 28 days. In many cases where what is sought to be done is very minor, the structure will go up on the very same day that the construction of it begins and could be taken down as well very quickly and in those cases you will have a structured position fully useable for 28 days, but where in a case like this it takes a week to erect the structure in question and another four days, according to the clause, to take it down, you have, in reality, only got 17 days of the total of 28 during which you are going to be able to have the structure up and running and ready to be able to be used. The deemed planning permission is not a deemed planning permission to have the structure there for 28 days, it is a deemed planning permission to have a change of use lasting not more than 28 days and so in practice in this case if you make the assumption that what Camden want to do is to hold functions immediately before Christmas when they can get as much money from big firms of accountants and others as they possibly can, their clause would have them hold those events for 28 days within the structure that they have erected and they are going to need planning permission, because if they take a week putting up the structure, by the time 21 days have passed, another 21 days have passed after erection, they will be at the end of their 28 days, and so they are going to have to apply for planning permission and, of course, they are going to have to be refused planning permission because it would be inconsistent with Camden's policies and this Committee should not grant powers which, as it were, will tempt Camden to say, or may tempt them to say, "Well parliament thought we should have these powers, perhaps we should take a relaxed view to the grant of planning permission for the kind of event that we are talking about". That does not even include, of course, the analysis that I have just subjected the position to, does not even include the 21 days that will be involved for the seven summer time events, one day to put up the structure, one day to enjoy the structure, one day to take it down, seven threes are 21, that all falls to be included in the computation of the 28 days for which there is deemed planning permission. If you take a Summer event, 21 days of the 28 are used up ----

 2518. CHAIRMAN: The Committee will be suspended for as long as it takes the members to go out and come back.

The Committee suspended from 3.42pm to 3.50pm for a division in the House

 2519. CHAIRMAN: Mr Laurence, please continue.

 2520. MR LAURENCE: Thank you, My Lord Chairman. I will try and finish in the next five or six minutes if I can. What I was saying about the planning position therefore, and I was respectfully suggesting that it is helpful and relevant to this committee because it can proceed on the basis, if I am right, that planning permission is going to have to be applied for and in the absence of some kind of explanation from Camden as to why these powers should be granted while it has conflicting policies by which it is bound, the committee should be cautious and say it is not satisfied to grant the powers under those circumstances, particularly as planning permission is going to have to be applied for if the powers are taken advantage of to their full extent.

 2521. The other statutory provision that I wanted to say a word about, because Ms Gibson herself has referred to it several times in her evidence and in the correspondence that she had with Ms Taylor of Camden, is the 1967 Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967.

 2522. CHAIRMAN: Do you have a tab reference, Mr Laurence?

 2523. MR LAURENCE: It is tab 5, the relevant extract. That Act was passed in order to confirm the order which is in the schedule to the Act, and so if you turn to the third page of this extract you will see in section 1, "The order of the Minister of Housing and Local Government which, as amended is set out in the schedule to this Act is hereby confirmed and shall have full validity and force." And so the schedule which is thus confirmed begins at page 2 in the top left hand corner and is headed, "Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967", and there is then set out the schedule. The bits with which the committee is concerned are in Part II under the heading "Parks and Open Spaces", and there you can see in Article 7 certain things which a local authority may do in any open space, and a note on the right-hand side, "facilities for public recreation". "A local authority may in any open space (a) provide and maintain …" and then there is set out a whole variety of facilities, including swimming baths, golf courses, courts, open air facilities as the local authority think fit, at (vi) centres and other facilities (whether indoor or open air) for the use of clubs, societies or organisations whose objects or activities are wholly or mainly of a recreational, social or educational character; …". At (d) there is the provision of meals and refreshments, and then at (f) over the page "erect and maintain for or in connection with any purpose relating to the open space such buildings or structures as they consider necessary or desirable including (without prejudice to the generality of this paragraph) buildings for the accommodation of keepers and other persons employed in connection with the open space; and (g) set apart or enclose in connection with any of the matters referred to in this article any part of the open space and preclude any person from entering that part so set apart or enclosed other than a person to whom access is permitted by the local authority or (where the right of so setting apart or enclosing is granted to any person by the local authority under the powers of this Part of this order) by such person."

 2524. Then there is a detailed set of provisos to that and proviso (iv) over the page on page 5 reads as follows, "Provided that … (vi) in exercising their powers under heads (v) and (vi) of sub-paragraph (a) of this paragraph a local authority shall satisfy themselves that they have not unfairly restricted the space available to the public for recreation in the open air in any open space." That is a reference back to Article 7(1)(a)(v), "indoor facilities for any form of recreation whatsoever", and so what you have here is Parliament making provision for facilities to be provided for public recreation but showing itself sensitive to the need to recognise that those who wish to recreate themselves in the open air must not find that because of these facilities, which might include the erection of a structure, the amount of open air recreational space is unduly restricted. It is a very careful balance that Parliament is seeking to strike by these provisions for certain facilities to be provided for public recreation, but recognising all the time that outdoor recreation must not be unduly interfered with, and the whole thrust and implication of the 1967 Order is that public spaces are for public purposes and therefore what at the end of the day this committee is being asked to do and which is unprecedented, and I now come back to the beginning, is to say that it is appropriate in certain circumstances for public spaces to be used for private purposes and to lend the endorsement of Parliament to that, as far as I am aware, novel proposition.

 2525. What I am respectfully saying to this committee is that the circumstances in which Camden come to promote their clause in front of you are and have been unsatisfactory in themselves but that there is a principled way in which this could be approached as well, which is to acknowledge that though there are certain circumstances in which it might have been possible for a clause seeking power to have private functions in public spaces to be properly considered those circumstances do not obtain on this occasion and the committee should say so clearly and reject the clause.

 2526. I do not want to sit down before saying a word about LIFA. The Lincoln's Inn Fields Association became defunct, we can now see with the benefit of hindsight, in unfortunate circumstances, but there is no doctrine, and I address my comments in this regard particularly to my Lord, Lord Faulkner, who has taken an active part in debating this issue, of what the lawyers would call estoppal that operates here. There is no doctrine that says because LIFA failed to do what it could have done at the time to assert its rights therefore the petitions that are now being put forward by members of that organisation should not be listened to. We can see that the position was a muddled position.

 2527. LORD FAULKNER OF WORCESTER: In self-defence, Mr Laurence, I have not even hinted at that in any of the questions I have been putting to your Petitioners. All I tried to do was to find out the circumstances in which LIFA failed to exist and prove the conclusion that I think you yourself have done, that it was unfortunate that it was not around to have the discussions with Camden when these matters were being discussed.

 2528. MR LAURENCE: My Lord, I entirely take your Lordship's point and I quite accept that you never even hinted at there being any such doctrine in operation. What I would like nevertheless just to put before the committee is this thought, that in looking at that unfortunate history one really does need to bear in mind that what was and what was not being said by those concerned at the time was against a background of ignorance of the existence of the relevant powers that protected them until a very late stage indeed: the 1894 Act, the 1931 Act - I do not think the 1931 featured in any of the discussions very much at all, and so that is just part of the history. If anything, what it shows is how important it is that a beautiful square such as Lincoln's Inn Fields ought to have some kind of body that exists from month to month and year to year to speak for those around it and those concerned to see it beautified and protected for the future. Camden needs such a body. I would have thought those around the square and others who love and use it need one too. Who knows? If nothing else comes out of these proceedings the revival of such a body may be the result and we will then see and look with interest in the years to come to see whether it really is necessary for a clause such as this to be promoted at some time in the future. My own hope and belief is that it may not be necessary.

 2529. What I invite the committee at all events on this occasion to do is to reject the clause in the form that it is presently before you and to reject it in any event. Unless there is anything else I can assist you with those are my submissions on behalf of those whom I represent.

 2530. CHAIRMAN: Thank you, Mr Laurence. May I just say before you get started, Mr Clarkson, that in the event that you are still on your feet at 20 minutes to five, which we think you may be or may not be -----

 2531. MR CLARKSON: I might be, My Lord Chairman.

 2532. CHAIRMAN: Lady O'Cathain will have to leave at that point.

 2533. BARONESS O'CATHAIN: My Lord Chairman, I have just taken a decision to put them on hold at the Peers' Entrance until five.

 2534. CHAIRMAN: Never mind, Mr Clarkson. You are not under any pressure.

 2535. MR CLARKSON: By way of introduction in putting it to the committee, our case is to ask in your minds that you say in bold capitals, "This is a question of balance", and it is a question of balance between the long term health of Lincoln's Inn Fields and the temporary presence of structures in a small part which is not grass but is tarmac. That is the lead approach that we invite. Into that balance we place these emphases. First, it is a question of long term health, not short term. The generous £70,000 for railings was short term. What, second, has to be anticipated is such as what Mr Stanton called improvements, perhaps they are; perhaps they are not, but it was what was identified yesterday in his tab 6 as amounting to £1.18 million over a ten-year period, £111,000 a year. The subtlety of improvement against maintenance is a diversion.

 2536. Third into the balance please accept, and I am sure you find it easy to, that funding is uncertain. The early nineties is an example where funding went wrong; to some extent that is the reason. Tent City I have in mind. The pressures are obvious, the priorities are obvious. The likes of the generosity of LIFA cannot be relied upon. There has been no offer of funding from any Petitioner, quite reasonably no offer, and indeed the committee can take no comfort that there is going to be any extraneous funding to support Lincoln's Inn Fields for the short, middle or long term. Indeed, it is unreasonable for us or any to ask.

 2537. Next into the balance is LIFA's view, and it is an old friend, this quote, because I opened it and I rely on it as wholly commonsensical: events in the park are mutually beneficial, they say, because they provide income which Camden have agreed will be spent on maintenance of the park and they encourage people to visit Lincoln's Inn Fields and become aware of its facilities. That is their case and that is our case.

 2538. As an aside on LIFA, it is all very well for the Petitioners to hope that some other organisation will come forward. There is absolutely no clear picture at all that that is going to happen. The best we have got is the commonsensical approach again of Mr Stanton, Colonel Hills and the representative from the Soane Museum, who I think in the corridor outside have said, "Let us talk about issues in the future". That, of course, is a practical solution to the narrow problem. It does not raise the funds for the long term support. On LIFA we say quite simply this, and I put this in cross-examination to Ms Gibson. LIFA's position was one of qualified support - I say that generally - for the approach that Camden went down. The somewhat bizarre picture is unfortunately that LIFA got itself into a rather extraordinary position where a complicated legal approach was promulgated and really I have to suggest, not wholly lightly, that it is only lawyers that could achieve a result of this sort of organisation ending up with £7,000 given to the Soane Museum and £18,000 costs of winding up, but there we are.

 2539. The next point under the balance - and I emphasise this - is that this is a contemporary, confined, limited scale exercise. A great deal of time has been spent to the challenge of the form of the approach. I am happy to address that, but the reality is that the actual solution that is put forward is that which you have in the amended form of clause 112. Mr Stanton's view was that it could be achieved by contract, and on reflection the view has been taken that it is best to lay it all before you so that the committee can accept or reject the form as put forward. It is in red in the latest draft. The important headline points are these; I do not rehearse them in detail. We are down to 28 days and seven days, that is, 28 in the winter, November and December; seven in the other months. The suggestion thereby that we are sweeping away the protections is hyperbole. The previous experience was in the region of 80 and much of that, as you know, was in the summer. The area is confined, 2,000 square metres and the pink. The time is confined: we shall not start until dusk. The area of construction/storage is confined within the pink. The height is confined, and indeed is dramatically less than you have had identified this morning. The set-up and the take-down periods are confined. There you have a finite, clear, identified location in defined months of the year.

 2540. Alongside that, and that would be the product of the clause if it were passed, the question has been asked, why have we not gone in effect into a planning inquiry before this committee? In reciting the question in that way I give the answer, and let me explain why. It is not an exercise in examination of the planning issues here. In due course the planning authority, in a quasi-judicial process, will have to identify, if a planning permission is before them, what are the planning policies that apply, apply them. If they do not comply with planning policies, as I put to Mr Morris yesterday, they are entitled to go to the next stage to consider whether there are other material considerations that would apply that would allow planning permission to be granted.

 2541. All of those depend upon the planning analyst, so to speak, or decision-maker to know what is applied for. At the moment there is no detail of the scale, form, location, timing, noise attenuation or the like that is available concomitant with the proposal. Criticisms are made, for example, by way of analogy, of the restaurant, yet, despite all this legal analysis, there has been no challenge to the lawfulness or otherwise of the grant of planning permission for the restaurant, and the suggestion is that it is outwith the planning policy. When the policy analysis is undertaken there will be taken into account, I have no doubt, the fact that underlining the background is what you have as the GPDO, General Permitted Development Order, which is at tab 6 of the green bundle. May I make it quite plain that I differ from Mr Laurence's advice to you as to that. May I ask you to take it up so I can explain very shortly how I differ. It is on page 39089 of the document.

 2542. I am going to ask you to have in mind class A, not because it has anything to do with the case but as an aid to interpretation, and that is "Permitted development", "The provision on land of buildings, moveable structures, works, plant or machinery required temporarily in connection with and for the duration of operations being or to be carried out on, in, under or over that land or on land adjoining that land". It is the builder's hut. If you have a building site you can have a builder's hut. That is a crude short summary. That is not constrained as a concept. "Moveable structure" is not constrained by time. It is qualified, inevitably, by the duration of operations, so consistent with class A we have a concept of a moveable structure complementary to something, which is brought down into class B. Class B, the use, is for 28 days, so that is the use - use for events. The moveable structure is a complement to that, so the erection of a moveable structure before the 28 days we say is permitted and the taking down after 28 days is permitted. What I do say though, and it is right that I do say this, is that as a matter of fact and degree, if that process was too long, or if the presence of the structure as a "moveable" structure was too long, it would not come within the definition of "a moveable structure" as a matter of fact and degree and would not thereby complement the 28 days and would need planning permission. The committee can be comfortable here that with the confining to the seven days and the three days and the one day in the summer the erection of a moveable structure is complementary to the permitted development of 28 days for events use and therefore does not require planning permission.

 2543. If I am wrong, which I am not, of course the exercise is to confine the 28 days and the erection would have to be within the 28 days and the demolition within the 28 days. Again, though, there would be permitted development rights that would not require planning permission, which is something the decision-maker would be entitled to take into account. I concede, of course, that the 35 days is something that has to have the approbation of the planning system if it is going to be for that period. Let me make it plain: it would have been simple for the Promoters to say that 28 days is enough and sit on their hands and forget about planning. They have carefully gone into the exercise of 35 days which means they will have to go through the process of laying their case before the planning system and that limited period will be taken into account, the LIFA point about public encouragement will be taken into account, the visibility of what we cannot describe yet will be taken into account, and we have some ideas of height and scale. The noise implications will be taken into account. Accessibility and implications for Lincoln's Inn Fields, not least the revenue advantage, is potentially persuasive.

 2544. In the balance, I turn to another heading. The legal history with respect to the first 35 minutes of my learned friend's closing adds little weight to your decision. It is trite but, of course, the committee is here making law, not constrained by something that is some 112 years old or anything more recent. If it is right in 2006 to have these provisions to deal with Lincoln's Inn Fields, I need not labour that it is wholly appropriate for this House to take the course that we suggest.

 2545. May I say that we do not accept, of course, that you are persuaded in the narrowest sense by the 1894 Act. You have been told this afternoon that in some way you are to be persuaded by this extra document that was handed in just before closing. Let me emphasise a couple of points in it. On page 4 of my learned friend's ICM9 you were given a sideline passage, and this is a theme in other documents. This is all I take at this stage from this bundle, "It may be fairly contended that in view of the standing orders the recitals of the Preamble of a private Act should be treated by the courts as conclusive between the parties to the parliamentary bar being contained in the Bill as to the public utility of passing the Bill."

 2546. So what? That is not persuasive, we say, on this tribunal in the sense that this committee is making law, and inevitably is going to have to change law. The implications of the 1894 Act or the 1931 Act are not persuasive necessarily. They are matters to be taken into account but they do not direct. We have now different priorities, different social pressures. In 1894 the London Borough of Camden did not exist. The matters they have to deal with by way of funding are perhaps dealt with, certainly some of the social issues were dealt with either by a blind eye or the Salvation Army. The world has changed substantially and the burdens on the local authority of Camden do not need any exposition. They are simply different expectations in parks by way of range of activities from recreation to, regrettably, rough sleeping. The pressure on the fabric ends up in the eternal solution, unfortunately: money. That has been addressed by a vernacular that you had looked at this morning to some extent by using the estate. Coram Fields is an example. Grays Inn is an example, and the Inner and Middle Temple. Lincoln's Inn have tried, as is my understanding from Colonel Hills this morning, but he had his wrist slapped by the benchers because they were very careful abut any disturbance of their peace and quiet as they saw it. Let me say this though, rounding up the legal context. There is no principle why a public square should not be used in this way. Despite the soliciting of English Heritage and the like, there is no petition from them and there is no report from the Government. What that all pushes us down to is a conclusion in statutory terms that the environmental context has changed.

 2547. You are told in my learned friend's paper on the second page of it at paragraph 5, about four lines down, "It therefore seems that subsections (7) to (10) are of a hybrid nature in that they both confer rights on the Society of Lincoln's Inn and others". That is coy. It does not just confer rights on Lincoln's Inn. It confers rights on occupiers of houses in Lincoln's Inn Fields. That is the recital of the 1894 Act at 45 between 6 and 7, and also, in a more refined sense, at subsection (10), no noisy games, et cetera, which shall tend to the annoyance to the Society of Lincoln's Inn or its members, or the inhabitants of houses in Lincoln's Inn Fields.

 2548. The point is not wholly facile because the environmental context has changed. The 1894 Act was promulgated, as we heard, by way of contract between the trustees, so to speak, and others. The purpose was to protect the inhabitants of houses. The environment has changed. There are no houses. The houses are full of offices, barristers' chambers, solicitors' offices and the like. What we have is an office area in the main which has had 91 notices served on it of both the original Bill and the proposed amendment, six petitions, one withdrawn, so to say that there is an overwhelming sense of concern from those who an interest in Lincoln's Inn Fields is not a complete picture.

 2549. I come to the substance, which can be dealt with shortly. The concerns are these. Noise: we say in the main that this is a winter exercise. The noise, Mr Stanton told you, would be internal. It would be time limited. There is, of course, always the fallback of the Environmental Protection Act where there should not be a noise nuisance, and indeed there is an approach identified in the Battersea Park documents you saw this morning. I am instructed by Mr Stanton that his approach would be to ensure that in future contracts there will be the same sort of contractual conditions as to noise that they have imposed in the recent contracts in respect of Lincoln's Inn Fields.

 2550. LORD FAULKNER OF WORCESTER: Battersea, do you mean?

 2551. MR CLARKSON: No, Lincoln's Inn Fields, because, using the vernacular that he used, he told you that he had noise conditions in more recent contracts and he would continue to do that but, I should emphasise, there may be more sophisticated ones and so I should add to that "or similar", bearing in mind future technology. It may be it will get better, is the point. Added to that, it is inevitable that if planning permission is granted there would be a noise condition that would constrain any noise intrusion or possibility of noise intrusion.

 2552. It does seem that the concern is amplified noise and it seems that music is all right if it is not a rock band. I think conditions, either in contract or planning permission, are capable of dealing with that, and indeed as a general principle that is why there are conditions attached to planning permissions, and indeed that is why Mr Stanton would impose them on contracts.

 2553. The next area is access. It has been made quite plain that the four quadrants would have access retained, that is to say, the grass quadrants. There is access through A, B, C. Access at D is only limited restriction. Mr Marsh from the Covent Garden Association was not saying that he could not walk through the Fields, and in specific answer to a question from me at 1435 he said he was not saying it was not possible to enjoy a walk with his daughter in Lincoln's Inn. Similarly, the perception of Ms McCoy was that access was denied historically. Again, that is not the position interest he proposal interest he Bill. The hyperbole of the LSE was that students were going to be studying in the Fields during the winter and the hyperbole of Ms Rigby was saying she could not play tennis. Simply stated, access will be retained in the great majority of Lincoln's Inn Fields. It is only going to be constrained in a narrow part over a narrow period of time.

 2554. The next substantial point of concern to be dealt with is the visual aspect. Yes, it is likely that a marquee or structure will be visible but not substantially visible. The trees, even at this time of the year, are a substantial intervening feature. In the summer, the marquee would be smaller, in the winter the larger structure would be there for 28 days of the shortest daylight period.

 2555. The last point of concern which has been raised over the three and a half days or so is money. As I understand it, it has always been the notion that in some way Camden were being predatory, certainly in the documents historically of LIFA the suggestion was Camden were taking this money and spending it elsewhere. That is not the proposal. It is to be hypothecated to Lincoln's Inn Fields. The clause has been amended to pick that up.

 2556. There is a safety valve that Mr Stanton told you of at Day 4, 1291. "If there is no need …" he said, "… to run private events to generate the income, we would not run them." So the Committee can be confident that when you have sub-clause (12) and (13), the council should keep an account and then at the end of each financial year the surplus should be applied to purposes connected with the maintenance or improvement of Lincoln's Inn Fields. If there is no need for money, there is no need for events. So the expenditure on Lincoln's Inn Fields and the provision of structures in Lincoln's Inn Fields, run in tandem.

 2557. I said it is a balance, and I think I have the support to some extent - I must not be unfair to him - of Colonel Hills this morning, when he suggested that if there is to be a compromise, and I do not think he was wholly suggesting there should not be, there should be an acceptable noise level. That is a sentiment with which the Promoters agree.

 2558. Circulated today, my Lords, is a document from the Committee some 15 months after the Bill was deposited - I think it came forward early this week. This is the Joint Committee on Human Rights, and I am sure the Committee has not had time to look at it in detail, but I am going to give you my response, if I may.

 2559. In summary, on clause 112, what it is saying is there may be Article 1, Protocol 1 of the European Convention on Human Rights issues, but the Committee in looking at it will deal with the point.

 2560. Let me take you through it. At 4.22: "The proposal to override the statutory restrictions and prohibitions imposed by the 1894 Act for the benefit of residents in Lincoln's Inn Fields raises an issue of compatibility with the right to peaceful enjoyment of possessions in Article 1 Protocol 1 of the ECHR. In our view the disapplication of those protections would amount to an interference with the use of property within the meaning of that Article, rather than a deprivation per se, since the effect would not be to deprive the owners/occupiers of the enjoyment of their property but rather to interfere with their peaceful enjoyment of it. The absence of a provision for compensation in the Bill therefore does not, in our view, give rise to any risk of incompatibility.

 2561. Then it goes on to say in 4.23, "The European Court of Human Rights accords national legislatures considerable room for manoeuvre in relation to measures which interfere with the peaceful enjoyment of possessions. The test is whether a fair balance has been struck between the public and the private interest and whether the individual has been left bearing an excessive and disproportionate burden."

 2562. So, my Lords, balance is what I opened with and that is really what I propose to end on in due course.

 2563. "The Court has indicated that in this context it will generally respect the legislature's judgment as to what is in the public interest unless it is 'manifestly without reasonable foundation.' In deciding whether a fair balance has been struck, and the individual required to bear an excessive burden, the Court considers all the circumstances, including the procedural safeguards available to the individual affected.

 2564. "We have not seen the justification relied on by the promoters of the Bill for interfering with the peaceful enjoyment of possessions of the beneficiaries of the statutory restrictions. This, and any evidence in support of it, will be presented to the Committee considering the Bill. It will be for that Committee, in the light of that evidence, to determine whether the interference strikes a fair balance in the sense that it manifestly lacks a reasonable foundation or imposes an excessive burden. If the promoters can produce the evidence relied upon by them in support of this clause our view is that the clause is unlikely to be incompatible with Article 1 …. However, it should be stressed that in reaching our view we have not ourselves seen the evidence. Nevertheless we have borne in mind the considerable room for manoeuvre accorded to the authorities in relation to interferences with property, and the procedural opportunities which the beneficiaries of the statutory protections will have to contest the clause before the Bill Committee."

 2565. I say quite simply this: all the Committee was doing was passing it down to this Committee saying a balance has to be struck. The petitioners here have an opportunity to say their piece and we say quite simply the evidence that we have laid before the Committee - of course we say justifies the clause - is wholly fair and does not impose an excessive burden upon the petitioners and can never be said at all to be manifestly without reasonable foundation. It is a balanced and proportionate measure that is proposed and quite simply we commend it to the Committee and ask that it be passed.

 2566. CHAIRMAN: You are done, Mr Clarkson?

 2567. MR CLARKSON: I am done, in 39 minutes.

 2568. CHAIRMAN: 39 excellent minutes.

 2569. MR CLARKSON: Thank you very much.

 2570. CHAIRMAN: I just need to be sure that everybody understands where we are going to go from here. The Committee will meet tomorrow morning to deliberate on this clause, clause 112, it will not however make public the results of its deliberation until work on the entire Bill is complete. I am assuming therefore that, Mr Laurence, we shall not see you and your colleagues tomorrow because I imagine you will have other matters to detain you elsewhere?

 2571. MR LAURENCE: Unless somebody instructs me at the last minute to appear for some petitioners who are yet to appear before the Committee and are yet to be heard, that is a correct assumption! As I am on my feet, may I just take the opportunity on behalf of Miss Staddon and myself of thanking the Committee for their patience and good humour during these proceedings, and of course thanking the shorthand writers.

 2572. CHAIRMAN: That being the case then, the Committee will deliberate and we shall hope to be ready to hear the next batch of evidence on different clauses and I cannot now recall exactly what they are.

 2573. MR CLARKSON: Insulation against rail noise with an exposition of what has happened at Earl's Court.

 2574. CHAIRMAN: Quite so. We shall hope to be in a position to start hearing that at 11.30 or soon thereafter. I believe we shall have the pleasure of your company again, Mr Clarkson.

 2575. MR CLARKSON: I am afraid you are lumbered with me for the next week.

 2576. CHAIRMAN: We are very happy to see you but you will have different sparring partners I believe.

 2577. MR CLARKSON: Yes indeed. It will be one short witness tomorrow from us.

 2578. CHAIRMAN: So we shall endeavour to move through that evidence tomorrow as quickly as we can. And other matters?

 2579. I do not know whether it is in order, but I would like to return the compliment to Mr Laurence and his team and all the petitioners and others connected with this clause because although it has been long and arduous, it has not been without its moments of entertainment. We shall reflect on that in due course.

Adjourned until 11.30 tomorrow morning



 
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