Complaint Where Relevant Authority is Owner or Occupier of Land

Orders of the Day — High Hedges Bill – in the House of Commons at 12:30 pm on 27th April 2001.

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'. If a complaint under this Act is brought in respect of land of which a "relevant authority" within the meaning of section 1 is the owner or occupier it shall be referred forthwith by that authority to the Local Government Association which shall nominate another local authority to consider the complaint.'.—[Mr. Chope.]

Brought up, and read the First time.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Treasury)

I beg to move, That the clause be read a Second time.

New clause 10 was originally grouped for consideration with new clauses 7 and 8, which were tabled by the hon. Member for Hendon (Mr. Dismore). For reasons that I have not yet understood, the hon. Gentleman decided not to move new clause 7, but we can debate the issues to which his proposals relate now, as new clause 10 deals with similar matters. That is no doubt why the grouping was so decided.

The new clause addresses an issue that was debated on Second Reading, when the hon. Member for Hendon expressed particular concern about local authorities being judges in their own cause and about fundamental breaches of natural justice and human rights. The Bill ensures that if a local authority is the owner or occupier of land on which there is a hedge that is causing loss of light to an occupier of adjoining land, the decision on whether a complaint should be entertained and on remediation rests with that authority, which will be the relevant authority under the Bill. That means that the local authority will be judge in its own cause. However enthusiastic people are about the Bill, they should not be enthusiastic about such a fundamental breach of natural justice. Even if justice is done in such cases, it is hard for it to be seen to be done.

The hon. Member for Hendon argued that on Second Reading. The hon. Member for Coventry, South (Mr. Cunningham) suggested that the explanatory notes dealt well with the matter. The hon. Member for Hendon said that he was not satisfied by that. I, too, am not satisfied that the Bill tackles the problem. The explanatory notes simply state that there is a right of appeal. That is different from dealing with a complaint fairly in the first place.

My solution is slightly different from that of the hon. Member for Hendon. A case in which it was obvious that the local authority would be judge in its own cause should be referred to the Local Government Association, which should nominate another local authority—probably an adjoining local authority—to deal with it. That is a reasonable solution. Rights of appeal would remain, but the new clause would give complainants more confidence that they would get a fair trial if they were complaining about the local authority.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I defer to my hon. Friend's greater knowledge of such matters, but is he satisfied that the Local Government Association has the competence to determine such matters? Is he equally satisfied that another local authority would have the local knowledge to deal with the matter adequately? The possession of local knowledge is the point of the complaints procedure. I hope that my hon. Friend will explain the reasons for his confidence in the Local Government Association and the nominated authority.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Treasury)

Since my right hon. Friend was an elected member of a local authority, all the local authority associations have combined to form the Local Government Association. All local authorities belong to that association, to which they pay a subscription. The Local Government Association says that it supports the Bill, and I hope that I can tease out of the promoter whether the support is predicated on local authorities' being allowed to be judges in their own cause if they are the owners of the land on which an offending tree is situated.

Photo of Mr Christopher Gill Mr Christopher Gill Conservative, Ludlow

In Bridgnorth district council, which is one of my local authorities, debates have raged about whether to renew the subscription to the Local Government Association. I do not yet know the outcome, but if it does not continue its membership, would it be ultra vires in referring such matters to the Local Government Association?

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Treasury)

No. A local authority does not have to be a member of the Local Government Association to refer an issue to it if such referral is required by statute. The new clause would require a local authority that would otherwise be judge in its own cause to refer the matter to the Local Government Association as an independent adjudicator. If Bridgnorth district council was not a member of the Local Government Association and there was a complaint about a tree on its land, it would refer the matter to the association. Obviously, as all other local authorities would be members of the association, it would nominate another authority. In practice, the Local Government Association would always nominate an authority that was a member to adjudicate on these matters.

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My right hon. Friend the Member for Bromley and Chislehurst asks how we could be sure that such local authorities would have sufficient knowledge and expertise of the locality to be able to deal with the issue. The answer is that we could not, but that we would at least be in a better position than we shall be under the terms of the Bill as drafted, which would make the local authority judge in its own cause. If the complainant were suspicious of, and dissatisfied by, the outcome, they could appeal, but the appellate authority—the planning inspectorate—would probably have even less knowledge, on a subjective basis, of the circumstances than the neighbouring local authority which would probably be nominated by the Local Government Association. I agree with my right hon. Friend that this is not perfect, but, in my submission, it is a heck of a sight better than what is contained in the present proposals.

Mr. Robert Ainsworth:

The hon. Gentleman said in response to the right hon. Member for Bromley and Chislehurst that we could not be sure that the knowledge and expertise would exist. I think that we can be pretty sure that the structures and resources to implement his proposal do not exist at the moment and would have to be created. Unlike the proposal in the Bill, which allows for such complaints to be dealt with through the normal planning inspectorate appeals mechanism, is not the hon. Gentleman's proposal bound to entail additional costs?

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Treasury)

Additional costs are bound to be created by the Bill, both for the Government and for local authorities. In the original consultation paper, it was envisaged that every local authority involved with this legislation would have to take on an extra officer to deal with it. The Government have slightly modified their view on that since the consultation paper, no doubt as a result of Treasury pressure, but even in the initial stages, there will be an enormous amount of work to be done by local authorities. That is going to cost money.

Mr. Ainsworth:

Surely the hon. Gentleman's proposal would involve the setting up of a structure that does not exist. The costs would be bound to be greater than if the complaints were dealt with through the planning inspectorate and the normal appeals procedures that already exist.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Treasury)

I think that the Minister misunderstands the purpose and, indeed, the wording of new clause 10. In the very special situation in which the landowner being complained against was the local authority—the relevant authority under the terms of the legislation—the matter would be referred to another local authority nominated by the LGA instead of that local authority deciding the case itself. Another local authority, which would also be dealing with its own cases, would take on in addition a case from a neighbouring authority, if that neighbouring authority was the subject of a complaint.

This is not just an academic argument. One of my constituents is concerned about some high conifers in the Friars Cliff area of Christchurch, which adjoin a public car park in the ownership of the borough council. The trees are situated between the edge of the car park and the highway. People are concerned because the trees are already of a significant height, which is likely to increase dramatically over the coming years. Those people want the trees to be properly maintained by the local authority. It may be that the local authority will find the money to enable that to happen, but there is concern about that because the local authority has already admitted that it cannot afford to maintain its deciduous trees, except where they are dangerous. I have already referred to the case in Suffolk avenue in my constituency. How can we be sure that the local authority will be able to maintain those existing conifers? If somebody complains, the issue should be dealt with by a neighbouring local authority rather than the local authority that is itself the subject of the complaint. A basic principle of natural justice is involved.

I agree that new clause 10 does not cover the situation in which the local authority is the complainant. Under the present terms of the Bill, it is impossible to envisage a situation in which that would happen—certainly in my constituency, where the local authority no longer owns any housing—but if the Bill were to be amended to include non-domestic property, as contemplated in clause 16, a chief executive or members of a local authority might claim that they suffered a nuisance in their offices from a tree growing in a nearby garden which was spoiling their view of Christchurch, or wherever it might be. Those people could then effectively be required to be judge in their own cause and order that the tree or hedge should be cut down accordingly. That would be unconscionable in the view of any fair-minded person and such cases should also be referred to a neighbouring authority for adjudication.

I am disappointed that no amendment was tabled by the promoter of the Bill to rectify the problem I have discussed, especially following the concerns that were expressed on Second Reading.

Mr. John M. Taylor:

I can tell my hon. Friend that I am disposed to accept new clause 10.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Treasury)

If that is the will of the House, I am delighted that my hon. Friend is demonstrating more flexibility on that point than in the previous debate.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am not happy about the new clause. I can understand the motivation of my hon. Friend the Member for Christchurch in tabling it, and for a moment he almost persuaded me, but the Minister's intervention placed some severe doubts in my mind on the basis of the additional cost. In fact, I am surprised that my hon. Friend has not been similarly persuaded by that factor. Of course his logic is impeccable and if local authorities—which are suggested in the Bill to be great repositories of quasi-judicial wisdom—are the owners of the land in question, that would cast doubt on the validity of the mechanism. I do not wish to get involved in a discussion of the concept of natural justice, which is something about which I have always had the gravest doubts—like social justice, I do not think it exists—but my hon. Friend is obviously wedded to the concept and has used it as the basis of his argument.

I can accept the common-sense approach that it would be a matter for concern if the person complained against were also to be—at least initially—the judge of the matter, and if the mechanism in the Bill were to be the sole method of resolving the issue. However, that is the point at which I become less happy with the new clause. For one thing, I wonder whether the Local Government Association, in all its majesty, has an appropriate mechanism to deal with the suggested responsibilities. Would the matter be dealt with at officer level, or would elected members be involved in making the decision about the nomination of another local authority? I can envisage circumstances in which that decision could be controversial.

My hon. Friend mentioned that a neighbouring authority could become involved, and the strength of that argument is that only a neighbouring authority would be likely to have the understanding and empathy for the local environment and amenities that would allow it to judge the matter properly. Let us take the constituency of my hon. Friend the Member for Solihull (Mr. Taylor) as an example. His neighbouring authorities are both highly urban and rural. In which direction would one look for nomination to find an authority with an understanding of the circumstances? These very real questions might require difficult decisions.

Whether officers or elected members of the Local Government Association would deal with such cases is an interesting point. I assume that one could conceive of a mechanism to give the responsibility to one or the other. My hon. Friend was not able to spell out in the new clause which mechanism he would prefer—at least, he chose not to—so an element of doubt remains.

The way in which the nominated authority would seek to deal with these matters presents considerable difficulties. Let us set aside the question of whether authorities have the expertise. It goes without saying that the original authority would have had the expertise and we can assume that, in terms of planning and inspections, the nominated authority would also have that expertise. What degree of priority would the nominated authority give this matter? In involving the mechanism in new clause 10, would the subjects of the complaint, who were anxiously waiting for a decision, be satisfied that a nominated authority that had nothing to do with the issue and whose money was, as ever, somewhat scarce, would give it any priority? Would any regard be paid to time scales, for example? Would the whole process be put in jeopardy by the fact that the unfortunate nominated authority, having had the matter dumped unceremoniously in its lap, would have to make difficult decisions about whether to give it priority?

The point that the Minister made so trenchantly in his intervention changed my mind on this matter. What about the money? We must never forget about that. I have reservations about the financial implications of the Bill and its mechanism, but my hon. Friend seems to be importing into the mechanism yet another element of potential cost which has not hitherto been envisaged. As the Minister rightly pointed out, whereas it is arguable that the sort of normal, straightforward case that the Bill envisages would be dealt with seamlessly and effortlessly by existing staff, the new clause raises the awful prospect of finding additional staff to deal with the additional cases that it imports into the Bill. The Minister was right to point that out.

The Bill's promoter says that he is willing to accept the new clause, but is the Minister? The hon. Gentleman said in his intervention on my hon. Friend that he believed that it would lead to extra costs. I do not know whether the Minister has checked with the Treasury or the Secretary of State for the Environment, Transport and the Regions, but if the Government are suggesting that we accept the new clause, they need to give a pledge that the money required will be found. It is one thing for the Bill's promoter to say that he will accept the new clause, and for my hon. Friend to introduce the new clause in good faith and support it with powerful arguments. It is a very different thing for a Minister of the Crown to say—if he is going to—that the Government will accept the new clause and that he will pledge the additional money that will be required for its implementation. That has interesting ramifications for the Bill and shows the great value of debates on Report; surprising developments occur. The combination of the comments of the Bill's promoter in response to my hon. Friend the Member for Christchurch and the Minister's intervention leads us to a new set of questions that have suddenly arisen and to which we need some answers.

1.15 pm

I am not at all persuaded that the House should accept the new clause. It carries serious financial ramifications, so we await the Minister's comments with interest. He cannot leave us in a position—can he?—where the Government will allow the incorporation of the new clause without giving a guarantee that whatever money is necessary to support the provision and its effectiveness will be found. If that were not so, we should be tragically misleading all those people who we are told are waiting breathlessly for the passage of the legislation; there would be a serious question mark against the whole thing.

This is an interesting little development; I look forward with great interest to the Minister's comments. We shall then be able to judge the viability of the Bill were the new clause incorporated against the Minister's comments and against what he is prepared to guarantee.

Mr. Robert Ainsworth:

It is good of the right hon. Member for Bromley and Chislehurst (Mr. Forth) to listen so carefully to what I say and to try to interpret my words as having such import. When I ask a question of the hon. Member for Christchurch (Mr. Chope) and the right hon. Gentleman interprets it as some type of definitive statement, that departs a little from the facts. I participated in the debate, asked the hon. Member for Christchurch a question and I am fairly satisfied that we are not talking about considerable additional moneys, so I have no intention of opposing new clause 10.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Treasury)

The Minister's comments show how worth while the debate has been. My only regret is that he and my hon. Friend the Member for Solihull (Mr. Taylor) did not intimate to me earlier that the new clause would be accepted; we should not then have had to spend so much time debating it but could have dealt with other amendments.

Mr. John M. Taylor:

In the context of amendments and with regard to the possibility of meeting the points of view and considerations expressed by other hon. Members, will my hon. Friend say how many times he approached me to see whether I would find his line of thinking amenable?

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Treasury)

I do not know whether that question is in order. It would probably come into the category of what we in the legal profession call "without prejudice discussions". I certainly do not want to embarrass my hon. Friend by referring to any discussions that we may have held outside the Chamber—that could get both of us into trouble.

Mr. Taylor:

My hon. Friend will, I think, accept that there were none.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I think that it would probably be advisable if we returned to the content of the new clause.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Treasury)

I am grateful to you, Mr. Deputy Speaker; you have prevented me and my hon. Friend the Member for Solihull from having an open disagreement on the matter.

I am delighted that my hon. Friend and the Government accept the provision. That shows the importance of holding such debates. I hope that it will not be necessary to divide the House, because I trust that my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) will agree that although the new clause may not be perfect, it is certainly an improvement to the Bill. There are costs, but they are insignificant when—

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Treasury)

The costs are insignificant compared with the additional costs that would be incurred by local authorities if they had to go through the appeal process.

Mr. John M. Taylor:

Does my hon. Friend agree that a greater difficulty for my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) is the unavailability of a second teller?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. Again, it would not be a good idea to respond to that intervention.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Treasury)

We have not got as far as that yet. I am sure that, as on many issues, my right hon. Friend the Member for Bromley and Chislehurst will consider the situation. I know that he is as anxious as me to get on and discuss some of the other amendments, in the hope that my hon. Friend the Member for Solihull and the Minister will accept further improvements. I am grateful for small mercies and to have on the record an acceptance of one of my suggestions.

Question put and agreed to.

Clause read a Second time, and added to the Bill.