Hertfordshire County Council (Filming on Highways) Bill [HL]

House of Lords

Minutes of Evidence taken before the Unopposed Bill Committee on the Hertfordshire County Council (Filming on Highways) Bill [HL]


Tuesday 23 April 2013


Lord Sewel, Chairman of Committees, with the assistance of his Counsel, Mr Peter Milledge.


appeared as Parliamentary Agent for the Bill.

There also appeared:

BRENDON LEE, Solicitor of England and Wales (and Australia), Hertfordshire County Council


JAN HAYES-GRIFFIN, Assistant Director (Strategy & Communications), Hertfordshire County Council

(11.50 am)

1. THE CHAIRMAN: Right, I think we can begin. First of all, welcome and good morning. I do apologise for the delay. Welcome to the Unopposed Bill Committee. To all intents and purposes, I am the Committee. I am Lord Sewel, Chairman of Committees in the House of Lords. On my right is somebody you most likely know, Peter Milledge, my counsel. Now I think the way forward is to ask you, Mr Lewis, if you could introduce the Bill and describe its main provisions.

2. ALASTAIR LEWIS: I will. Thank you very much, my Lord. First of all, may I just introduce to my right Jan Hayes-Griffin, who is the assistant director (strategy and communications) from Hertfordshire County Council, who I can call upon to answer any queries which I am unable to answer; and to my left is Brendon Lee, who will eventually prove the Preamble.

3. My Lord, as you know, this Bill is promoted by Hertfordshire County Council. I can confirm that the council have passed through all the necessary formalities that they need to in promoting a Private Bill. They have passed full council resolutions both before and after the Bill was introduced. The council has undertaken, through leading counsel, an assessment of the compatibility of the Bill with the European Convention on Human Rights, and the Minister has reported that there are no reasons to dispute the conclusions of that assessment. Other than the European Convention on Human Rights report, there have been no other governmental reports on the Bill, and of course no petitions have been deposited.

4. First, if I can set the scene with the background to the film industry in Hertfordshire: the overall objective of the Bill is to assist the council in continuing to encourage the film industry to produce films in Hertfordshire by formalising the legal position as regards the closure of highways for the purpose of filming and enabling objects to be placed on the highway and to be used for those purposes. The Bill itself is precedented in Private Acts promoted first by the London boroughs and Transport for London in 2008 and then by Kent County Council in 2010.

5. When I refer to the "film industry" in my representations, I do not just mean the makers of feature films, but also television programmes and advertisements, and charitable organisations and student film-makers as well.

6. Before going into the detail of the Bill, I should mention why the film industry is very important to the county. For a start, there are already five major film studios based in the county, and they include the Warner Bros. studio at Leavesden and the BBC studios in Elstree. Pinewood Studios are just over the border in Buckinghamshire.

7. The county contains a rich diversity of landscape that is frequently used by film-makers for location filming. There are quiet country lanes, picturesque towns and villages and also urban locations which are used by film-makers. The proximity to those locations of the studios that I have mentioned, and the fact that the county is on London’s doorstep, help to ensure that Hertfordshire remains a popular filming location and a place where new film studios will be attracted, the council hopes.

8. Examples of films and TV series that have been shot in Hertfordshire, either on location or in the studios include the entire "Harry Potter" series, "The King's Speech", "Batman", "Raiders of the Lost Ark", "Goldeneye", and from television we have "EastEnders" and "Midsomer Murders". Hopefully you have heard of all of those aforementioned films and TV series.

9. THE CHAIRMAN: I do not know whether it is a good thing or a bad thing.

10. ALASTAIR LEWIS: I did not say that you watched them.

11. Various high-street, village and country-lane locations have been used around the county. A favourite village setting is Chipperfield village, which has been used as a location for "Midsomer Murders" and feature films including "Hyde Park on Hudson", which is a recently made film, and "The World's End". A favourite town is St Albans, which has been used for TV dramas such as "Life Begins" and "Foyle’s War", as well as some feature films. There are numerous other village locations that are popular with film-makers, including Aldbury, Flaunden and Letchmore Heath, and other towns which are favourites for film-makers include Welwyn Garden City, Letchworth, Hemel Hempstead and Watford.

12. In 2009-10, it was estimated by the Screen East agency that the county's economy benefited from spend by film and TV production of around £19 million. In a report to the council about the media business "cluster" in Hertfordshire, as they called it, a business consultancy called TBR reported in December 2011 that Hertfordshire firms employ approximately 3,230 people in the film and TV sub-sector. Approximately £100 million has been invested by Warner Bros. in Leavesden, and there are proposals for the expansion of the Elstree studios, which will generate an extra £2 million-worth of work which Elstree currently has to turn away due to lack of capacity.

13. A large proportion of a film budget is spent on local facilities such as hotels, restaurants, retailers, transport companies, florists and construction materials. Location fees are paid to landowners and local people are often employed directly. Although the source is slightly dated-it is a members' survey from the Association of Film Commissioners International in 1993-it is estimated that for every £1 spent on film production, £2.50 goes into the local economy.

14. In the current challenging economic times, it is important that Hertfordshire retains its position as an attractive place for the film industry and one which offers genuine advantages. As part of the council’s commitment to increasing economic investment in the county and ensuring that the county benefits from the film industry’s continued presence, the council is keen to encourage more location shoots and investment in studios.

15. Having dealt with why the Bill is desirable, I will now deal with the question of why the Bill is needed in terms of the legal position. The current position at law is that it is an offence to obstruct wilfully the free passage along the highway. Coupled with that, there is also a statutory duty on the highway authority-and Hertfordshire is the highway authority for most of the roads in its area-to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority. What constitutes an obstruction is a matter of fact and degree in each case, but it is safe to say that if a film-maker prohibited people from proceeding along a road, either on foot or in a vehicle, for anything longer than the briefest periods, then it would be likely to amount to an obstruction of the highway.

16. If the stopping up or interference with the highway is authorised by statute, then that will provide a defence to any prosecution for obstruction. Utility companies have such powers, as I am sure you are aware, as do the police and local authorities, but the powers are always drafted so as to allow interference with the highway for specific purposes.

17. Until relatively recently, the police in Hertfordshire had been content to use some very old legislation-the Town Police Clauses Act 1847-to assist the council in securing road closures for filming purposes. I will read you the relevant parts of Section 21 of the 1847 Act. It says: "The commissioners"-that means the police-"may from time to time make orders for the route to be observed by all carts, carriages, horses, and persons, and for preventing obstruction of the streets … in all times of public processions, rejoicings, or illuminations, and in any case when the streets are thronged or liable to be obstructed, and may also give directions to the constables for keeping order and preventing any obstruction of the streets in the neighbourhood of theatres and other places of public resort".

18. You can see why the police might be somewhat nervous about using those powers to close streets in order to allow filming to take place, because it does not really fall within any of the categories that I read out. Indeed, it was the police’s decision to discontinue using the powers for filming which led the council to decide to explore the idea of promoting this Bill. The police fully support the proposals in the Bill.

19. It is not just a perception that film-makers may go elsewhere to shoot their films if proper powers are not in place to allow the council to close roads; I am told that the producers of an American feature film called "Red 2", with an approximate budget of $58 million, intentionally did not look at road location options in Hertfordshire but filmed scenes in London instead because of the perceived easier road closure procedures there-which followed on from the enactment of the 2008 Act which I mentioned.

20. Discussions with the film sector in Hertfordshire have highlighted that when the council had, until recently, the co-operation of the police, even then the processes were not suitable because they sometimes required six to eight weeks’ notice, which is often not practical when filming schedules are tight or have to change.

21. The council is concerned that Hertfordshire could lose its locational and competitive advantage and the supply-chain economic benefits that I have described unless similar legislation to that enjoyed in London and Kent is introduced in Hertfordshire.

22. I shall now go on to describe how the provisions of the Bill work. The Bill has the effect of extending, with modifications, the existing powers of the highway authority to close roads for special events. Those provisions are contained in the Road Traffic Regulation Act 1984. The special events provisions were inserted in 1994 by a Private Member’s Act which was promoted specifically to enable the Tour de France to be hosted in England for the first time. The relevant provisions of the 1984 Act allow closures to facilitate the holding of a relevant event, to enable members of the public to watch a relevant event and to reduce the disruption to traffic likely to be caused by a relevant event. "Relevant event" is defined as any sporting event, social event or entertainment which is held on a road.

23. Although a somewhat optimistic lawyer might argue that filming on a highway is itself an entertainment and therefore a relevant event, it is not so likely that a court would take the same view.

24. The Bill has the effect of categorising the making of a film as a relevant event for the purposes of the 1984 Act and would therefore allow the council to make closure orders. It also goes a little further than that, in the same way that London and Kent have, by allowing what will be known as film notices to be issued where it appears to the council that it is expedient that the closure should come into effect without delay. This is particularly useful in the film industry; for example, because of the unpredictability of the weather.

25. The 1984 Act contains restrictions on the existing powers to make special event orders and these are adapted somewhat so far as film orders are concerned. The existing restriction which allows special event orders to continue in force for up to three days is altered to allow for seven days for a film order. Similarly, a restriction on the number of orders that can be made in any year on any stretch of road is relaxed to allow for up to six film orders. Under the existing rules for special events, only one special event order can be made per annum in relation to any stretch of road, but that number can be increased with the consent of the Secretary of State.

26. The Bill also contains restrictions on film notices. No film notice can last for more than 24 hours and the film notice must be posted at each end of the road at least 24 hours before it comes into effect.

27. I should also bring to your attention-I shall hand a copy of it around-to Section 122 of the Road Traffic Regulation Act 1984. I shall read out the relevant provisions for the record. Section 122 states: "It shall be the duty of every local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) … ) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway". That provides a general duty on the highway authority-in this case, the council-effectively to ensure that the road is being used for its intended purpose as much as possible. If you read on to subsection (2), you see that the particular matters which the local authority has to have regard are: "the desirability of securing and maintaining reasonable access to premises … the effect on the amenities of any locality affected … and the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and … any other matters appearing … to be relevant".

28. Section 122 is a provision that the council as highway authority has to consider on a daily basis, not just when considering road closures but in exercising all its functions under the 1984 Act. It would certainly be bound by the duty contained in Section 122 when considering whether to make a film order or a film notice.

29. Section 122 is there to protect the interests of the public and to safeguard the main purpose of the highway. The council could not issue a film order, let alone a second or even sixth successive film order on the same stretch of highway, without giving consideration to this duty each time.

30. On top of that is the overriding duty on local authorities to act reasonably. I suspect that I do not need to tell you that in cases where a local authority acts unreasonably in what is called Wednesbury sense it is open for the local authority to be judicially reviewed in the High Court as well, but that is an additional provision for the protection of residents on top of this perhaps more specifically targeted Section 122 duty. The council would prefer not to see any further restrictions written into the Bill given the overriding duty in Section 122. Additional requirements could disadvantage Hertfordshire compared with, let us say, Kent and the London boroughs. As far as those instructing me are aware, the provisions as drafted for Kent and the London boroughs have not given rise to any particular difficulties. I cannot say for certain that they have not, but those instructing me are not aware of any difficulties that have arisen under the similar provisions which apply in Kent and London.

31. As is the case with special event orders, there will be no formal objection process for those aggrieved by the making of a film order, but the council’s intention is to base any decision as closely as it could on the views of the majority of local residents. If it could be shown that more residents and other affected parties were against the closure than in favour of it, the council would be unlikely to make a film order.

32. The council also already has a code of practice for location filming in Hertfordshire. It includes provisions about litter removal, historic, cultural and protected locations, night filming, noise, nuisance and parking, and includes a section about residents and businesses requiring consultation on the part of the film-maker.

33. Although the code is not binding, failure to adhere to it would no doubt result in the council taking a pretty dim view of subsequent proposals for film-making by the same producer.

34. I turn to consultation on the Bill and support for it. In order to understand whether there was support for the proposed Bill, the county council held a consultation during the summer last year lasting for six weeks. A very large number of bodies were consulted. In total, 20 responses to the consultation were received. The comments can be summarised as follows. Eleven responses were neutral or made no relevant comment; five responses raised some concerns and objections; and four responses were positive and supportive of the Private Bill. Of the concerns or objections expressed, four came from special interest groups and one from an individual. Their concerns were all very similar and with minor exceptions related primarily to issues regarding how the scheme would operate in practice rather than the wording or the purpose of the Private Bill itself. It was considered by the council that none of the concerns raised was significant enough to prevent the promotion of the new Bill.

35. If I may turn now to a slight difference between this Bill and the Kent and London Bills: one difference is that it is now made clear in this Bill that contravention of a film notice would be an offence. This is really a belt-and-braces provision to some degree. It is already an offence to contravene a special events order, and will be an offence to contravene a film order as well, so the principle is nothing new at all, and the effect of a film notice is exactly the same in terms of what activities are and can be prohibited.

36. I should also mention that, in reality, although we have an offence in the background, it is very unlikely, I would say, that anyone would be prosecuted for the offence. As is usual with any type of regulatory offence, the first step to be taken would be to see if the problem that is being created can be dealt with in some other way. So, for example, if somebody is deliberately obstructing the making of a film, the film-maker would first ask the person to move on, and if that did not work potentially the police could be involved, especially if there is a potential breach of the peace, to ask the person to move along. Again, I and the promoters have heard no real issues arising from London and Kent in the way that their Acts have worked without the offence but, as I said, this was thought to be a provision which was really required as a matter of consistency rather than anything else. It is rather odd that contravention of a film order would be an offence, whereas contravention of a film notice, which effectively does the same thing, is not.

37. Clause 6 of the Bill I shall very briefly touch on. It enables the council to give permission to film-makers to place objects on the highway temporarily for the purpose of film-making. This power is likely to be particularly useful as an alternative to a full-blown closure order or notice. It will allow the council to authorise equipment such as static film cameras, lighting rigs or camera tracks to be placed on the roads for filming and then used. There are a couple of small differences between Clause 6 and the equivalent section in the Kent Act, and again they are really what can only be described as belt and braces. The first is to clarify that one of the conditions that can be imposed on the giving of a permission is a payment of a charge to the council to cover their reasonable expenses in granting the permission. The second is to say that the permission can also cover the use of the object once it has been placed.

38. Finally, I should mention that I have corresponded with Mr Milledge about various points arising from the drafting of the Bill, and I would like to thank him for his suggestions, which have undoubtedly improved the drafting, as you will see in the film Bill before you. Not least, I can confirm that there are no statutory ports or harbours in landlocked Hertfordshire, so we have removed the reference to harbours in the Bill.

39. My Lord, that is all I was intending to say by way of introduction, but of course if you have any questions, then either I or my colleagues here will attempt to answer them.

40. THE CHAIRMAN: Thank you very much for that comprehensive introduction in explaining the Bill. I think we do have a number of questions, and I suppose if I can kick off by saying: what happens now when somebody wants to film in Hertfordshire?

41. ALASTAIR LEWIS: I think the position-and I will be corrected if I am wrong-is, as I described, that it was only until relatively recently that the council were able to call upon the police to use the Town Police Clauses Act 1847 to effect the closure. I think that the position since then is that it simply has not been done, as far as I am aware, hence the need for this Bill.

42. JAN HAYES-GRIFFIN: Yes, my Lord, that is correct. We used to rely heavily on the police for these provisions but the police have made it clear to us, certainly within the last year or so, that they are no longer willing to invoke that clause. In fact, looking at my legal adviser, I think the county council is also of the same view that we cannot rely on the provision of the town clauses Act any longer as well. So at the moment the county council has decided, until such time as we can hopefully secure this through Parliament, that we will continue to use the town clauses Bill on a very pragmatic basis, and we try wherever possible to negotiate any arrangements with the film industry and residents on an informal basis at the moment.

43. THE CHAIRMAN: So filming is continuing.

44. JAN HAYES-GRIFFIN: Filming is continuing, but I think the legal basis for it is questionable at the moment.

45. ALASTAIR LEWIS: As I mentioned, each case differs from each other, and in certain cases there may be instances where filming can take place with a minimum of disruption, and therefore it is one of those of grey areas where you are not certain whether it constitutes an obstruction of the highway, which is actionable at law, or not. In those cases, it may well still be proceeding without any legal authority at all, because it is not needed.

46. THE CHAIRMAN: You did mention that one company had purposely decided not to film in Hertfordshire. Are there any other examples of activity that has not gone ahead that you could reasonably expect to have gone ahead because of the failure of the powers?

47. JAN HAYES-GRIFFIN: We did have a near miss, my Lord. We had a film company last year, an American company, making a film called "Hyde Park on Hudson", which has recently been released, in fact. They needed to close a country lane in Hertfordshire for that filming, but they needed to do it very quickly because of their filming schedule, and it was very, very difficult for ourselves to respond in their timescales. At the end of the day, we had to make very special arrangements to allow that to happen. The filming did go ahead, but I think it required intervention from our head of legal services, and also one of the borough councils, to facilitate it on the day. So it was a bit of a near miss, and we want to make sure that we do not, if you like, affect our reputation by having those sort of problems in the future.

48. THE CHAIRMAN: Okay. The Bill makes provision for you to issue a film notice when traffic needs to be restricted "without delay". I suppose you could come home in the afternoon and find that your road has been closed. Why is there a need for this?

49. ALASTAIR LEWIS: First of all, can I just reiterate that that was a provision that was actually introduced into the Kent Bill that I do not think is in the London Act? Although it says "without delay" on the face of the Bill, there is a requirement to put a notice up 24 hours in advance which is in the Bill, so actually there is a small period of grace in which local residents would be able to see a notice at either end of the road concerned.

50. Just thinking back, I was responsible for the promotion of the London Bill, and I seem to recall that one of the main reasons then, and it applies here in Hertfordshire as well, is the weather. It is all very well booking in a period of two or three days for a film order in September for some time in October, and then turning up and finding out the weather is wrong. It may well be that you wanted rainy weather or you wanted sunny weather. But one of the reasons perhaps over and above events like the Tour de France, for example, is that, because the weather is very unpredictable, use of the shorter film notice procedure would sometimes obviously be better.

51. There may be other cases as well. It may be again, as a result of the weather, that a film order is used but there is a run-over of the time allotted in the film order, and it may well be that just to cater for any additional time that was needed to be filming on the highway the council may authorise a film notice just to allow the scene to be finished off. But again I would reiterate that in all cases a Section 122 duty would always have to be taken into consideration, both for film orders and, importantly, for film notices. So even if a film-maker was banging on the door and vehemently insisting that a road should be closed because the weather conditions are perfect, the council would always of course have to ensure that the duty to maintain and secure reasonable access to premises, for example, is complied with.

52. THE CHAIRMAN: I think that we might look at that later. You want to make non-compliance with a film notice an offence. This is not the case, I believe, in either the Kent Act of the London Act. Why have you decided to go down that route?

53. ALASTAIR LEWIS: It is really belt and braces and consistency. As I mentioned, it is an offence to breach a film order. For example, if someone insisted on wandering up and down the road in the middle of a film shoot in respect of which the film closure order had been made, it would technically be an offence. As I said, in reality, one would hope and expect that it would be dealt with simply by asking the person to stop doing it, but potentially there is the ability to prosecute. What a film notice does is really exactly the same as a film order. It prohibits people from using the highway. It does exactly the same thing, the only difference being that the notice periods are different and the length of time in which a film notice can remain in force is different. The actual breach of the notice is effectively the same as a breach of an order. If someone parks where they should not park under the terms of the order or the notice, it seems rather odd that it should be an offence under the order provisions but not under the notice provisions. It is really to deal with an inconsistency more than anything else.

54. THE CHAIRMAN: The powers that you are seeking could impact quite dramatically on the day-to-day lives of people affected by the road closure. You want to allow six orders of one-week duration on any stretch of road per year. I suppose theoretically that it would be possible to have a six-week closure.

55. ALASTAIR LEWIS: Theoretically, but, again, I would go back to the council’s Section 122 duty, which it must consider when making orders. I imagine that a film-maker would be extremely unlikely in the first place to ask for six successive seven-day film orders to be put in place. It is difficult to imagine the local authority, looking at that duty and balancing up the desirability of securing and maintaining reasonable access to premises and the importance of enabling people to access amenities, acceding to such a request in the extraordinary circumstances that one were made. The provision is useful because, of course, certain areas are likely to be more attractive than others for location filming and the council would not want to lose the opportunity of having different filming events taking place in different places.

56. At the same time, as I said before, there could be examples where the film shoot goes on a little bit longer than had been predicted and there may be circumstances where a short extension of the original seven-day period may be required. That could be achieved, as I said before, either by a film notice being made or a consecutive series of film orders. I do not think that the council would like to lose that flexibility which is enjoyed by both Kent and London and has been enjoyed, as I mentioned and as far as we know, without any serious complaints from local residents or businesses in London. Film-makers are probably very sensitive to local residents and businesses because they need their co-operation if they are going to film in certain areas. If they had an unco-operative and antagonistic local population, it would make filming very difficult for them. You could just imagine a householder making temporary alterations to their house, for example, to make things extremely difficult for the film-making to proceed or parking a bus outside their house the day before the filming took place.

57. That is why the consensus approach, which I think Kent explained it would certainly be taking when it promoted its Bill, would also be adopted by Hertfordshire. Its overriding duty as highway authority is to protect users of the highway, which would always take first place when considering applications for orders by film-makers. Film-makers probably would not wish to try it on with the council in any way.

58. JAN HAYES-GRIFFIN: I think that is fair to say that we have very good relationships with the film industry in Hertfordshire at the moment. We have a series of highway co-ordinators-staff who look after different parts of the county-and they look after any requests to do anything on the highway, whether they are from developers, statutory undertakers, utilities or the film industry. We have had a very good relationship. We developed a code of practice with the film industry 10 years ago. During those 10 years, we have not been aware of any film company that has wanted a massively long closure. I think that they know not to ask, to be honest. They know that the county council has got to balance the interests of residents and businesses and so on with that overriding duty under the Highways Act. Perhaps I may give you a small example. "EastEnders", which is filmed at the BBC’s studios in Borehamwood, regularly films on the highway in different parts of the county. Very often, it is less than a day; it is an outside shoot that is needed to make a particular scene. We have now got it down to a bit of a fine art, where they phone up the highway co-ordinator a couple of days beforehand. It is a two-process: "Well, what time? How long? Well, that would be okay, but can you make sure X, Y and Z?". So there is that relationship that we have built up. As Alastair was saying, the film industry understands that we have got to balance those competing interests.

59. THE CHAIRMAN: You mentioned that you would always act on the basis of consensus. I suppose that the difficulty is that a road closure may impact differentially on different types of people. I am thinking particularly of the disabled person, where the consensus may well be in favour of closing the road temporarily, but it could have an enormous impact on a disabled person. Have you thought of that sort of issue?

60. JAN HAYES-GRIFFIN: Again, in our code of practice we already take into account the needs of people with disabilities. Certainly, our highways co-ordinators would always try to make sure that alternative routes were signposted and so on. That would be standard practice. However, if an elderly person’s home, for example, was in an area where a film company wanted to film, we might want to persuade the film company to avoid locations where disabled people were crossing and things like that. Again, we would try to negotiate those arrangements as far as we possibly could.

61. ALASTAIR LEWIS: I have seen it in action myself. When I was a teenager I went to watch a film being recorded on location in King’s Lynn, where they transformed the centre of the town into 18th-century New York. It was fascinating to watch-almost an entertainment, you could say-but you could tell that there were very long periods where nothing happened at all. In the case where you had a disabled person who needed to come in and out of their house, I am sure that the film company would be perfectly happy with allowing that to happen, particularly given that there are so many long breaks in film-making. Again, I come back to that Section 122 duty as well, where the consideration about the desirability of securing and maintaining reasonable access to premises would be particularly acute in relation to a disabled person. I am sure that the council would insist that the needs of the disabled were particularly catered for. It would not necessarily be a complete privation of the use of the road.

62. THE CHAIRMAN: Do you cover it in your code of practice at all?

63. JAN HAYES-GRIFFIN: Could I just check with my highways staff? Yes, the needs of people with disabilities are covered in the code of practice.

64. PETER MILLEDGE: Will the code of practice be updated to take account of the new provision, assuming the Act passes?

65. ALASTAIR LEWIS: I assume that the answer must be yes.

66. BRENDON LEE: My Lord, the intention is that it will be updated if these powers are granted to the county council.

67. ALASTAIR LEWIS: I am sure that the code of practice would make clear exactly what is allowed and what is not under the Act and deal with issues which are commonly raised under Section 122 in relation to access to premises.

68. THE CHAIRMAN: I think that the code of practice may be very important, because one can theoretically construct a situation, based on the powers that you have, where you have a fairly long road of two or three miles that you would close for six weeks. That would cause enormous difficulty, would it not? Is that sort of eventuality covered in the code of practice?

69. ALASTAIR LEWIS: It is not at the moment because of course we do not have the powers.

70. THE CHAIRMAN: No, but would you do it?

71. ALASTAIR LEWIS: I see a nod to my left. I am sure that it would, yes. I am sure that the code of practice could say something along the lines of, "Whilst theoretically it is possible for six orders to be made back to back, each seven days long, it would be very unlikely that the council would allow that to happen taking into account its duties in respect of users of the highway, local residents and others". I am sure that wording like that could be used-it would not be precisely the same; I do not want a code of practice here and now.

72. BRENDON LEE: It is certainly case by case. You look at the facts and you have to apply the facts of that particular case. You assess whether there is an alternative route, whether it is suitable, what the impact is on the residents and so forth. Then, obviously, we can assess whether to grant the order and how long it should be in place.

73. THE CHAIRMAN: But the importance of a code of practice is that the individual citizen can be aware of how the council is approaching the issue.

74. BRENDON LEE: That is right. The code of practice would set out as a guide the kind of factors which the county council would take into account in its decision-making and consideration of the duty under Section 122. It lets film-makers know how we are minded and what we look for in respect of periods in which we might permit the closure of roads.

75. THE CHAIRMAN: Can I turn to the process of notification and publicising ahead of the making of an order? How would you seek views of local residents?

76. BRENDON LEE: My understanding is that there is a letter-drop requirement on the film-makers which has to be undertaken one month prior to when they propose the closure of the road. Currently, there is no formal regulation in relation to consultation under Section 16A. The intention of the county council would always be to have consultation at least a month prior to the intended date, as was the case when it made road closures for street parties during the jubilee.

77. ALASTAIR LEWIS: It is done not because the highway authority is compelled to do it, although under Section 16A, which is the section of the 1984 Act which already allows closures for special events, there is a power for the Secretary of State to make regulations dealing with exactly the type of issue that you have just raised, my Lord, but it just happens that no such regulations have actually been made. However, as Mr Lee says, voluntarily the council requires the film-makers to do their letter drop-or did when film closures were allowed.

78. THE CHAIRMAN: Again, would you see that being included in a code of practice?

79. BRENDON LEE: I believe that it already is in the code of practice. It requires that notice be given at least a month prior to the intended day when the film-makers want to close the road or part of the road.

80. ALASTAIR LEWIS: And that would be for a film order, not necessarily, I should stress, for a film notice, which is where closure is required as a matter of some urgency.

81. THE CHAIRMAN: Going back to the notice, I cannot quite see how you would need to close a road without delay. I cannot imagine circumstances where that may be necessary. Can you?

82. ALASTAIR LEWIS: Well, let us envisage circumstances where a film company realises that it needs to do some short-term filming in a particular village location and to do so two months hence, but also requires particular weather circumstances to prevail at the time. They could apply for a film order and keep their fingers crossed, and then when it gets to the date they find that it is raining so that they cannot film and it will just have to try again some other time, or they could say-again, this could be something for the code of practice-"Well, we need to film in the month of May. We only need half a day’s filming. We don’t really want to apply for the order because we need specific weather conditions. We’re telling you now that we will be looking for a date some time in May when we will be asking for a film notice for a couple of hours so that we can do the shoot". So, in a sense, you get the advance warning.

83. I am not saying that that would necessarily happen on every occasion, but if, as I envisage, the weather is the real issue here, you could see that happening, because I would imagine that, particularly for major feature film-makers, they have to plan everything meticulously in advance, not least because they have to get the film stars there on the day when they are needed and it is probably very expensive if they do not. I think that there is the need for film notices in those circumstances. Again, I stress that, as far as we are aware-I always say this-it has not caused any difficulty in London and Kent. I think that Hertfordshire would be concerned if London and Kent had those powers and it did not, because it might deter the film industry from filming in Hertfordshire if it knew that it could not have this flexibility. Of course, as my introduction said, this is really all about trying to keep the film industry encouraged to come to Hertfordshire.

84. THE CHAIRMAN: Is there any sort of process by which local residents can basically appeal in the sense of asking the council to think again? We are very keen on asking people to think again up here.

85. ALASTAIR LEWIS: If as a result of a letter drop or consultation which has been required of the film-maker there is a strong voice of discontent among local residents which is relayed to the highway authority, to the county council, then as part of its Section 122 consideration it would certainly have to take that into account. It would take into account the needs of local residents in any event whether or not they responded to the consultation. So there is that process. It is not set down in statute, but then it is not in any event for the existing special event order regime. Again, as Mr Lee was saying, that seems to have worked quite well for other types of special event such as the jubilee street parties, where no doubt local residents were consulted and their views taken.

86. THE CHAIRMAN: I think that that is really all my questions. Peter, do you have any?

87. PETER MILLEDGE: I have one other question. Mr Lewis, you mentioned right at the beginning that the county council had undertaken a consultation exercise prior to promoting the Bill and I think you said that there were five responses that expressed concern and some of those were interest groups. What kind of interest groups were they and what was the nature of the concerns that were expressed?

88. ALASTAIR LEWIS: If my recollection serves me rightly, I think the Open Spaces Society and the Ramblers put in separate objections-but identical? "Objections" is not the right word; "responses". There were some very detailed points about the drafting. For example, I seem to recall a query-and as the draftsman I always look at these to make sure that I have got it right-about the use of the word "road" in the context of the Bill, and that sort of thing. But there were no major objections in principle, from my recollection, to the idea of the Bill going forward. It was all very minor detailed stuff as far as I recall, with the occasional concern about "Please make sure that you do look after the interests of the local residents when you’re making these orders"-the general sort of response you would normally get for a consultation.

89. THE CHAIRMAN: Thank you very much for the very full explanation. I would actually like to consult with my counsel for a moment, so could you just leave?

Sitting suspended at 12.41 pm.

(12.48 pm)

90. THE CHAIRMAN: Right. Thank you very much. I am content that the Bill should proceed, with the amendments that you propose, but in doing so I would urge the council to revise and draft a new code of practice that covers many of the issues that we have discussed today, and that it would be quite important that that code of practice be in draft form by the time that the Bill reaches the second House.

91. ALASTAIR LEWIS: Thank you very much, my Lord.

92. THE CHAIRMAN: Right. I think we now move to the formal part of the proceedings. May I ask you to prove the Preamble, please?



93. ALASTAIR LEWIS: Is your name Brendon Lee?

(Brendon Lee) Yes, it is.

94. ALASTAIR LEWIS: And are you a solicitor of England and Wales, and Australia, employed by Hertfordshire County Council?

(Brendon Lee) Yes, I am.

95. ALASTAIR LEWIS: And have you read the Preamble to the Bill?

(Brendon Lee) Yes, I have.

96. ALASTAIR LEWIS: And is it true?

(Brendon Lee) It is true.

97. THE CHAIRMAN: That is it then, really, is it not? Well, thank you. I think that concludes our proceedings, and I will report the Bill to the House with the amendments.

The Committee adjourned at 12.50 pm.

Prepared 9th May 2013