Commons Bill [HL]

We believe that Clause 37(6) makes sensible provision for works which have already taken place, perhaps inadvertently or in ignorance of the controls. It is currently the department’s practice to accept applications where the works have already been undertaken. Although the practice has no specific statutory basis, we believe that it is the right approach. Therefore, we considered it appropriate to put the matter beyond doubt and give the existing policy a statutory basis. We are not aware that treating works already undertaken in this way has caused any problems in the past. Where no application for consent has been made, it seems to us to be a more sensible approach to allow for such consent to be sought. Enforcement action can then follow either if no application is made or if consent is withheld by the national authority. Without that statutory provision, it may still be possible for the national authority to take the same approach as it does now, albeit on an informal basis. Clause 37(6) would put that beyond doubt. I emphasise that the inclusion of that subsection should not be seen as an encouragement to flout the law and construct works without consent but, where that has happened, a belated application under Clause 37(6) is the most appropriate first course of action to try to put the situation right. Further, simply submitting an application for consent under the clause will not mean that a court action cannot be undertaken. In other words, the provision could not be used to frustrate enforcement action. The noble Duke asks whether it applies retrospectively. The answer is that it will cover all works, including those in future. It is not a transitional measure.