Localism Bill

Lord Taylor of Holbeach Excerpts

Tuesday 19th July 2011 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, this has been an interesting debate as we enter into the enforcement chapter of this part of the Bill. I begin by thanking the noble Lord, Lord McKenzie, for his Amendment 153D, which at first hearing seems attractive but is, I think, unworkable. As the noble Lord pointed out, the problem is that there is no sanction if the person required to submit a retrospective application does not do so. I doubt whether failing to make a planning application could be made an offence, given that the authority has the sanction of enforcement action. In any case, a fine and conviction would not generate a planning application. In practice, the planning status of an unauthorised development is often regularised when the property is to be sold, in order to reassure the prospective purchaser. The developer will either make a retrospective application of his own volition or apply for a lawful development certificate, depending on whether the time limits for taking enforcement action have expired. Both of these carry a fee, as noble Lords will know.

In speaking to Amendment 154, my noble friend Lord Avebury, supported by the noble Baroness, Lady Whitaker, has made interesting points about a possible ambiguity in Clause 108. I can assure my noble friend that it is not our policy for both limbs of Clause 108 to operate on the same case. We see Clause 108 as an either/or process, depending on what happens first. If enforcement action has been taken, the council can decline to determine a retrospective planning application. If a retrospective planning application has been made and the council takes enforcement action in time, there could be no appeal on ground A. The aim is that if someone is seeking to obtain planning permission for an unauthorised development, they should have one bite of the cherry—not two, but they should not be denied their one bite. They must follow the first path that they take, to avoid the ambiguity that can occur.

My noble friend and the noble Baroness, Lady Whitaker, reported that they had met the Minister, my noble friend Lady Hanham, last week and these concerns were discussed. I am not sure that the three-year time limit proposed by the amendments will necessarily solve the problem identified. However, my noble friend Lord Avebury can be assured that we want the same outcome and we shall continue to consider the points that he has made.

My noble friend used the illustration of Gypsies and Travellers. I emphasise that none of the enforcement provisions in the Bill is aimed at any particular group. It would be invidious to suggest that any particular section of the population was especially prone to breaching planning control.

--- Later in debate ---

Moved by

[Lord Taylor of Holbeach]

155A: Clause 109, page 89, line 17, leave out from beginning to “and” in line 19 and insert “apparent breach, or any of the matters constituting the apparent breach, has (to any extent) been deliberately concealed by any person or persons,”

[Lord Taylor of Holbeach]

My Lords, in moving the amendment, I thought that it would be useful if I also spoke to the other amendments grouped with it. The need for Amendments 155A to 155C has arisen in the light of case law and difficulties encountered in some recent experiences. Although there is no doubt or disagreement that Clause 109 should be aimed only at the worst cases of concealment—I am sure that all noble Lords know about the case of the house in a barn in Welwyn Hatfield recently decided by the Supreme Court—the Law Society thought that the current drafting could be interpreted more widely. The Government also think that it is important that local planning authorities should be able to reassure landowners who are not responsible for breaches of planning control on their land that they are not in danger of prosecution. My noble friend Lady Hanham has written to noble Lords with an explanation of what the amendments do. Therefore, with the leave of the Committee I do not propose to go into further detail today, but if there are questions, I am happy to write to noble Lords.

Perhaps it would be easier for me to respond to Amendment 156 at the conclusion of the debate on this group. I beg to move.

[Baroness Gardner of Parkes]

I shall speak briefly to Amendment 156 concerning the removal of time limits on enforcement. I am not sure whether this is exactly what I was aiming for because I certainly would not want to do anything which would make the enforcement last forever. However, I am quite shocked by the enforcement procedures that have been put in place close to where I am in London. The council has put an enforcement order on a conservation area, but nothing has ever happened. The people have put in French windows and large terraces, and the council was successful in getting an enforcement order. I do not know whether the owners live abroad and I do not know why it has not been possible to get anything done about it, but I wonder whether it might be that despite having the orders, you run out of time and nothing can be done. Perhaps the Minister could clarify whether all those enforcement orders last for ever or only for the time limit within which you can apply for enforcement against something. I am concerned that if a breach has occurred and enforcement action is taken but no result is achieved, the person concerned will get away with it.

[Lord McKenzie of Luton]

My Lords, we have Amendments 156A and 156B in this group, which relate to penalty levels. I thank again the RTPI, which welcomes the increase in penalty level proposed in the Bill but considers that it should be even higher. This, it is argued, will help concentrate the minds of magistrates and help focus on the potential seriousness of offences. Amendment 156A is proposed by way of probing the rationale behind the level set by the Government. Equally probing is the amendment to Clause 110(2)(b), which relates to land situated in Wales. Doubtless there is an extensive and constitutional reason why there is a difference between levels of penalty in England and Wales. Perhaps the Minister could let us know how that works.

On government Amendment 155C, it is a bit odd to serve a notice on somebody and then write them a letter and say, “Well, in a sense, we didn’t mean it”. It seems rather a bizarre solution to an issue which I accept has to be dealt with. I wonder whether there is not a more elegant way of avoiding serving the notice on the landlord in the first instance. There may be other ramifications of not doing so, but to serve a notice and then to say, “Well, don’t worry—we’re not going to prosecute”, seems rather an odd thing for government to do.

[Lord Taylor of Holbeach]

My Lords, perhaps I may address first the amendment proposed by my noble friend Lady Gardner of Parkes. Abolishing the limitation for enforcement action would be an extremely radical step for which the Government and planning professionals have no appetite. As we have just debated in the context of Clause 109, the Law Society thought that our original proposals for restarting the enforcement clock would have had a chilling effect on the property market. I fear that this amendment would put the markets into a deep freeze. If the amendment were to be approved, Clause 109 would become redundant; there would be no need to start the enforcement clock if there was no clock to start with. The purpose of having time limits for taking enforcement action is to provide certainty, particularly for purchasers. Excepting cases of deliberate concealment, as envisaged by Clause 109, if an unauthorised development or changes of use have not been notified within the time limits, they are probably not doing great damage. If the owner at the time was liable for an enforcement action in perpetuity, people would be reluctant to buy without a full planning history and the markets would be unwilling to lend against properties. I hope that my noble friend understands that argument.

The amendments proposed by the noble Lord, Lord McKenzie—Amendments 156A and 156B—are designed as a probe to try to evaluate at what level we can pitch penalties. I should remind the noble Lord that we are already proposing a significant increase in the fine for failing to comply with a breach of condition notice. The maximum fine would be raised from £1,000 to £2,500, which is level 4. This increase should have a considerable deterrent effect on those who are served with a notice and might otherwise be tempted to ignore it. To increase the maximum fine even further, to £5,000, which is level 5 in England, as the amendments propose, would be disproportionate to the offence. Level 4 fines already apply to the offences of displaying an illegal advertisement and non-permanent damage to a protected tree, which are comparable offences in scale and severity. I hope that noble Lords will feel able to withdraw their amendments.

I remind noble Lords that this is an England-only provision; Welsh Ministers would have to consent to any change to the provisions in the 1990 Act which apply to Wales. I hope that noble Lords will not press their amendments.

Amendment 155A agreed.

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, I support these amendments. A powerful case has been made. When I studied the amendments, I thought a slightly different argument might be advanced. As I understand it, issues around remedying persistent problems with unauthorised advertisements in the Bill are the subject of right of appeal to magistrates’ courts. It is just the non-persistent problems and the power to remove structures in Clause 111 that the amendment seeks to bring within the remit of the magistrates’ courts. If I have misunderstood that, doubtless the Minister will put me right. But there is an imbalance between those two situations, which will be remedied by the proposition in the amendment. Quite apart from that, the amendment should stand on its own. There is a proper issue of justice here, and a right to appeal to a magistrates’ court.

[Lord Taylor of Holbeach]

My Lords, I thank the noble Lord, Lord Borrie, for introducing this amendment and my noble friend Lord Black of Brentwood for speaking to it, as well as the noble Lord, Lord McKenzie. We understand the nub of the issue, as the noble Lord Borrie, presented it. It is to provide a speedier and more cost-effective means of challenging a removal notice as empowered under the Bill, especially where consent, or deemed consent, to display an advertisement already exists. But the magistrates’ courts are already heavily loaded with cases, and we should be cautious about increasing the burden on them unnecessarily. We should also be wary of giving any rogue hoarding owners the opportunity to delay the enforcement process by appealing against local authorities for no good reason.

The noble Lord, Lord Borrie, is quite right. The amendment draws heavily on the London experience. I note that these measures have been operating in London since 1995 without the benefit of a right of appeal. In that time, I understand that there have been only five judicial reviews against removal notices, so I hope that the noble Lord will understand the Government’s reasoning on this issue.

Included in the group is government Amendment 166ZA. It is a minor drafting amendment to page 100, which deletes subsection (3) of proposed new Section 225J. Noble Lords will, I am sure, have observed that the words are very similar to those in subsection (4)(a). They are superfluous and should be omitted.

[Lord McKenzie of Luton]

Could the Minister help us out? Why is there the differential treatment in terms of rights of appeal to a magistrates’ court—assuming I am right on that—where there are persistent problems with unauthorised advertisements, compared to those where there is simply the power to remove structures for what may be ad hoc, unauthorised display?

[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.