New clause 5 - Crown
Planning and Compulsory Purchase (Re-committed) Bill
11:00 am
Mr Keith Hill (Minister of State (Housing and Planning), Office of the Deputy Prime Minister; Streatham, Labour)
We are about to embark on a series of debates on 21 new clauses, three new schedules and 10 other amendments, all of which deal with the Crown's immunity under the planning Acts. Before we do so, and with your permission, Mr. Hurst, it might be helpful if I again give some of the background to the proposals.
As members of the Committee will know, legislation does not bind the Crown unless there is express provision for it to do so. A series of court decisions have confirmed that the planning Acts do not bind the Crown. There is also a policy, which Administrations of all political persuasions follow, that Crown immunity should be removed where it is unnecessary. Hon. Members may recall, for example, that Crown immunity was removed from the national health service in 1991.
The fact that the planning Acts do not bind the Crown does not mean that development by the Crown is unregulated. Such proposed development follows the procedures in DOE circular 18/84, under which the Crown submits a notice of proposed development to the local planning authority instead of a planning application. That notice is treated in a similar way to a planning application in that it is advertised and entered on to the register. The Crown can go ahead with the proposed development if the local planning authority is content with it. If it is not, the dispute is referred to the First Secretary of State for his determination. In large cases, this is usually done
following a non-statutory public inquiry, which is governed by the spirit of the usual inquiry procedure rules and which results in an inspector's report and a decision by the Secretary of State similar to that following a recovered appeal.
I shall now return to the policy of ending Crown immunity. In 1992, the Government issued a consultation paper on the removal of Crown immunity from planning law. The outcome of the consultation on that paper was a ministerial announcement in 1994 that the Crown's immunity from planning control would be removed as soon as a suitable legislative opportunity arose. That was endorsed by the present Government in 1998 in response to a parliamentary question.
New clause 5 heads a large group dealing with the mechanics of bringing the Crown inside the scope of planning legislation; it provides that the Bill will bind the Crown. New clause 6 provides that the existing planning Acts will henceforth bind the Crown. I shall talk briefly about new schedule 1, which is introduced by new clause 6 with Government amendments Nos. 53 to 55. It deals with the adjustments to the planning Acts that will be required to accommodate the Crown, and the necessary repeals.
The next topic will be the transitional provisions from the non-statutory to the statutory scheme, set out in new clause 14 and new schedule 2. I shall end with new clause 16, which provides the means for existing subordinate legislation to bind the Crown. That might be some way off, however, for I have much still to explain to the Committee.
The provisions in new clause 5 are pretty straightforward. In subsection (1), ''This Act'' means the Bill when it is enacted, if that is Parliament's will. The exclusion regarding part 7 and the proviso in subsection (2) are an aid to interpretation, in that we are removing Crown immunity from planning legislation, and part 7 deals with compulsory purchase. Compulsory purchase by the Crown is similar to compulsory purchase by local authorities and others. However, we thought that such clarification would make it certain that applying the Act to the Crown did not cut across the application of any other legislation. The Crown has immunity from compulsory purchase orders under the planning Acts, and it is intended that it will retain it.
New clause 6 is at the heart of the Crown immunity amendments. The reason for legislating is that the planning Acts do not bind the Crown, and it provides that they will do so in future. As proposed new section 292A(1) says:
''This Act binds the Crown.''
Some might say that that is sufficient. If we could have stopped there, we would have done. Alas, life is rarely as simple as that, and we have had to go further. Although the Crown will have to obtain planning permission, listed building consent and hazardous substances consent in the normal way, it still requires special provision for enforcement, national security and urgent development. We shall deal with all three elements in detail later, but new clause 6 includes some elements of the enforcement regime. Because the
principal Act, the Town and Country Planning Act 1990 as amended, is so large and complex—it has 337 clauses and 17 schedules—we decided to adopt a more general approach. That is why the statement in new section 292A(1) is qualified by subsection (2) in that it is subject to express provision made by part 13 of the principal Act.
The Planning (Listed Buildings and Conservation Areas) Act 1990, known as the listed buildings Act, and the Planning (Hazardous Substances) Act 1990, known as the hazardous substances Act, are both much shorter and are restricted in scope, so we can be more prescriptive about which provisions should not apply to the Crown. Those are listed in proposed new section 82A(2) of the listed buildings Act and proposed new section 30A(2) of the hazardous substances Act and deal mainly with offences, injunctions, rights of entry and warrants to enter land. There is more detail about rights of entry and enforcement in later amendments.
So far, it might be said, so good. However, for those Members who are already having trouble following the explanation, this is the moment to lie back and think of England. I fear that proposed new section 82A(3) in new clause 6(2) needs to be explained in a little more detail. I assure the Committee that this is an attempt to avoid throwing the baby out with the bathwater. New section 82A(2)(a) states that section 9 of the listed buildings Act 1990 will not bind the Crown. Section 9 sets out the offence of doing works to a listed building without the consent required by section 7 of that Act. Section 9(3) provides statutory defences for that offence. If a person carried out urgent works necessary for health and safety or for the preservation of the building, and it was not practicable to do works of repair or provide temporary support or shelter instead of doing those works, if the works done were the minimum measures immediately necessary, and if notice in writing justifying the works was given to the local planning authority as soon as reasonably practicable, that person would be safe from prosecution.
The Crown may be safe from prosecution, but without the provision in proposed new section 82A(3) in new clause 6 it will have no power to undertake emergency works in those circumstances. That means that the Crown could not legally carry out emergency works in a situation where a private person could, which is clearly unsatisfactory. We therefore have a principle that where offences have been disapplied, we have to add back in any statutory defences as a positive right for the Crown so that the Crown has the same freedom of action as a private person. That is the effect of proposed new section 82A(3). It may sound complicated, but it does make sense. We will return to that theme when we debate new clause 13.
As well as proposed new section 30A of the Planning (Hazardous Substances) Act 1990, which I have already mentioned, new clause 6(3) also contains proposed new section 30B, which contains transitional provisions. They are very similar to those given to
industry by the Act when it came into force. They allow Crown bodies to claim a deemed consent within six months of commencement of new clause 6(3) for hazardous substances present in the appropriate quantities during the 12 months prior to commencement. The requirements of the Act do not apply to military establishments. We do not believe that there are significant holdings of hazardous substances held by the Crown elsewhere.
Subsection (4) of new clause 6 introduces new schedule 1, entitled ''Crown application'', which amends the planning Acts in relation to their application to the Crown. New schedule 1 is a varied and complex set of provisions—the Acts need to be amended as a result of the Crown being bound by the Acts when it has not been so bound previously. The new schedule includes repeals of redundant provisions, some with savings, and provisions preserved from repealed sections. Some new provisions are required because the Crown is now bound by the Acts and there are adaptations of existing provisions for use by the Crown. Amendments Nos. 53 to 55 add the substantive repeals in new schedule 1 and new clause 11 to the list in schedule 6. I am sure that it will come as a relief to the Committee that I do not propose to describe each set of provisions in detail. I have no doubt that Members will raise any issues that concern them.
I turn to the arrangements that we need so that we can deal with the transition from a non-statutory to a statutory planning system. New clause 14 introduces schedule 2, which makes the necessary provisions. Members of the Committee will be aware that the Crown submits notices of proposed development following the guidance contained in Department of the Environment circular 18/84, instead of applying for planning permission or listed building consent. New schedule 2 is in two parts—the first for notices akin to planning applications and the second for notices akin to applications for listed building consent. They are substantively identical, so I shall address my remarks to the first part only.
After an introductory segment that deals with application definitions, there are three substantive segments. The first provides that notices that have been approved before commencement of new clause 6(1) are to be treated as if they were grants of planning permission. The second provides that where notices are in dispute and have been referred to the Secretary of State, who has not made a determination before commencement, such notices shall be treated as recovered appeals. The third provides that a notice that has been submitted to the local planning authority but is still being considering at commencement should be treated as an application for planning permission.
New clause 16 is the final provision in the group. As well as making the planning Acts binding on the Crown, we also need to make the existing subordinate legislation binding where necessary. Unfortunately, the existing subordinate legislation will not automatically become so because the enabling Acts did not allow that when it was made. To make the subordinate legislation bind the Crown, new clause 16 gives the Secretary of State a power to make an order
defining which existing planning subordinate legislation will bind the Crown, either as it stands or with modification.
I hope that my remarks have been helpful to the Committee. Admittedly, the issue is complex, but I have sought to offer a guiding thread of clarification through the maze of new clauses and amendments.