Localism Bill

Lord Borrie Excerpts

Tuesday 19th July 2011 Lords Chamber

Moved by

[Lord Borrie]

157: Clause 111, page 92, line 20, at end insert “and
(c) unless an appeal is submitted under subsection (16),”

[Lord Borrie]

My Lords, I shall speak also to the nine other amendments in the group that stand in the names of myself and the noble Lords, Lord Black of Brentwood, Lord Smith of Finsbury and Lord Rodgers of Quarry Bank. Members of the Committee will immediately realise that the four of us sit in different parts of the House so it is a truly cross-party group of amendments.

It is perhaps less obvious that all four of us have had some involvement in the regulation in this country of advertisements. Three of us have been successive chairmen of the Advertising Standards Authority and the noble Lord, Lord Black, is a member of the Advertising Standards Board of Finance, which raises the finance of the authority by virtue of an impost upon advertising receipts in the industry. The noble Lord, Lord Smith of Finsbury, who is the current chairman of the Advertising Standards Authority, is not able to be present this evening but wishes me to say to the Committee that he fully endorses the intent and purpose of these amendments.

All four noble Lords who have put their names to these amendments are, of course, well disposed to the general value and usefulness of promotion and marketing of goods and services of all kinds. This is essential to the economy and deserves one’s support. However, we are all equally appreciative that advertisements should be—in the phrase that has become common because it is the well known remit of the Advertising Standards Authority—legal, decent, honest and truthful. We accept that all advertisements need to accord with the demands of the environment and of the countryside and need therefore to comply with the requirements over the years of the Town and Country Planning Acts, including for those kinds of billboards which may distract motorists from the need for driving safely.

Town and country planning laws have long ensured that local planning authorities have adequate powers to ensure that the owners of billboards on the roadside comply with detailed legal requirements. The Bill seeks, among other things, to update these laws, and that is a fine objective and well worth pursuing. However, I am sure your Lordships will appreciate that it is important to ensure that the advertiser has an appropriate and proportionate right of appeal for any adverse ruling, such as the issue of an enforcement notice by the local planning authority to remove an advertisement. The trouble with Clause 111 as it stands is that it adopts what I might call the present London position on appeals. That is, instead of a right of appeal to local magistrates’ courts, the only so-called appeal is a claim for judicial review to the High Court—a much more expensive proposition and, even though limits on judicial review have expanded in recent years, not an ordinary appeal on the merits. Our amendments seek to replace what I have called the London position with a right of appeal to the magistrates’ court from an enforcement notice issued by a local planning authority to the effect that an outdoor ad is illegal and ought to be removed. That would be a much more proportionate and appropriate route of appeal and more apt for modern ideas of access to justice and the rule of law. After all, it is the position that has operated outside London for many a long day. Magistrates’ courts are, in my view, a valuable, perhaps unsung, and low-cost local justice resource and should be treasured.

Indeed, in recent years, High Court judges have criticised the lack of rights of appeal in London from local planning authority enforcement decisions. For example, Mr Justice Irwin, in the case of Clear Channel UK Ltd v London Borough of Hammersmith & Fulham in 2009, said the lack of a normal appeal process is “draconian”. Media owners are reluctant to challenge what may be, after all, an erroneous use of local planning authority power, because the costs involved in the only remedy—judicial review by the High Court—are too great. The word “draconian” to describe the lack of an appropriate appeal mechanism had earlier been used in 2003 in the case of R (on the application of Maiden Outdoor Advertising Ltd) v Lambeth London Borough Council by Lord Justice Collins, who is now a member of the Supreme Court—the noble and learned Lord, Lord Collins of Mapesbury. In these cases, where seeking judicial review is not commercially viable, natural justice is simply not being served by the present procedures, which I have outlined as the London procedure. Small businesses especially are simply deterred from challenging a possibly subjective or irrational decision by local planning authorities. Of course the local planning authority may get it right; but it may get it wrong, and it is important that a reasonable right of challenge should be provided in the legislation. The ability to access a magistrates’ court would be a fairer and more appropriate procedure.

Finally, this is, after all, a Bill dealing with localism. Magistrates’ courts are a low-cost, local judicial resource that should be cherished and welcomed. They are part of the local scene. I beg to move.

[Lord Black of Brentwood]

I strongly support the amendment moved by the noble Lord, Lord Borrie, and in doing so, declare an interest as the director of the Advertising Standards Board of Finance. I support these amendments—and I talked about these issues at Second Reading—because they will ensure an equitable, consistent, and, above all, local mechanism for challenging enforcement notices across the UK. They would deal with an important point, which is that new Section 225A appears to be the only provision within Part 5 of this Bill relating to planning that lacks any right of appeal. From a practical point of view, this set of amendments is likely to be of benefit to both media owners and local authorities because, as the noble Lord, Lord Borrie, said, the magistrates’ courts are best placed to provide a quick, cost-effective route to resolving disputes, something that an action for judicial review in the High Court would never be able to provide, especially when issues of fact rather than of law are likely to be in dispute. From the aspect of the principles underpinning this Bill, it would mean that a local tribunal would be able to look at issues affecting a local neighbourhood, not a remote court possibly many hundreds of miles away.

I appreciate that these are relatively technical amendments, but I underline that they are none the less of real importance to local media owners, who are an important part of the local media ecology in towns and cities up and down the country. I am extremely grateful to the Minister for receiving representations from the industry since Second Reading. The importance of this issue is also underlined by the fact that, as the noble Lord, Lord Borrie, said, the signatories to this group include not just the current distinguished chairman of the Advertising Standards Authority, the noble Lord, Lord Smith, but his two predecessors, the noble Lords, Lord Borrie and Lord Rodgers of Quarry Bank. These colleagues, who have huge experience in advertising regulation, understand greatly the importance of the local advertising industry and an equitable, fair and local treatment for it. That is what this admirable Bill is all about, and I hope that these amendments will help to tidy up this technical but important area.

--- Later in debate ---

[Lord Taylor of Holbeach]

I think I can summarise it best by saying that they are two different orders of problems for local authorities. The reasoning for these proposals is obviously based on the London experience, which has provided local authorities in London with an effective way of dealing with the larger structure problems that one can have, where displays are put on unauthorised structures and their speedy removal is in the public interest.

[Lord Borrie]

My Lords, I am most grateful to the noble Lord, Lord Black of Brentwood, for his support for this amendment and for that of my noble friend Lord McKenzie of Luton on the opposition Front Bench. I am bound to say that I am a bit disappointed by the Minister's response, most especially when he said that in London, which is the route followed by the Bill itself, there have not been that many judicial review claims—I think he mentioned five. A great substance of my argument is that judicial review is a most unattractive route for anybody concerned about a decision against them by the local planning authority, because it is expensive and very challenging. It is not a real right of appeal.

The rest of the country has a real right of appeal. The anomaly that exists at present—recognised by the noble Lord, Lord Black, and by my noble friend Lord McKenzie—is not recognised by the government Front Bench. It is an anomaly to have a difference between London and outside London especially, in my submission, in the context of a Localism Bill. When the emphasis is on local government and local associations, it would be so much better and simpler to have a magistrates’ court appeal. The noble Lord has said that magistrates’ courts are very busy, but he will know that that partly arises because there are many closures of them by government decision. That is undoubtedly the case.

That decision may be supported on the basis of saving money, and in some towns and areas I would accept that there is an argument for saying, “The magistrates’ court here is not fully occupied, so it could be closed down”. However, the Minister’s point is that magistrates are already overloaded with work and cannot take on what would be very sensible new work, providing access to justice for those who feel that they needed to appeal against an unfair, unreasonable or difficult local planning authority decision. Of course, I withdraw my amendment at this stage but I think the Minister will realise that we are not happy with his decision, and I hope that he will rethink the matter in due course.

Amendment 157 withdrawn.