My Lords, I, too, willingly added my name to the amendment tabled by the noble Lord, Lord True. I stand before your Lordships as a technician, not a politician. As a practising chartered surveyor with a specialised involvement with boundary matters, and as chair of my professional body’s panel on this matter, I can speak with some knowledge of what happens in practice. The professional panel I chair deals with boundaries, party walls, land registration and rights to light. I, too, thank the Minister for a very useful explanatory letter and a copy of the Article 4 procedural guidance. She referred to a condensed version, if I may put it that way, which the Government are intending to bring out. I have not seen that, but no matter because I shall stick with what the Minister has sent me.
The first point is that the desire to deregulate, however objectively beneficial it might seem, should not equate with no oversight whatever. That is the risk the noble Lords, Lord True and Lord Tope, have identified. It may be populist, but it is not good government.
The second point is that back garden space is an important mutual asset that underpins value and market appeal. We cannot get away from that. Of course, the situation varies according to location, as the noble Lord, Lord True, has said, so a one-size-fits-all approach does not really work. Rural village properties are totally different animals from those in London boroughs in terms of the built and human-scale environment.
The policy of deregulation does not guarantee a positive net present value, if I may use a piece of valuer’s jargon. One poor extension can blight neighbouring properties, as we have heard from the noble Lord, Lord True. Moreover, poor design and poor positioning are potent sources of neighbour disputes, and that is where people like me get drawn in. They produce serious stress not only between neighbouring householders but within families. I have seen families almost taken apart by the stress that has been occasioned. Such disputes often lead to expensive legal battles, in which I have to say the only gainer is the legal profession.
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There is no equivalent to the off-the-shelf, non-judicial process of dispute resolution that occurs in relation to Section 10 of the Party Wall etc. Act 1996, for which, in a previous incarnation in your Lordships’ House, I claim some credit, having taken it through all its stages in this House. There might have been one had the Property Boundaries (Resolution of Disputes) Bill, introduced by the honourable Member for Dover and Deal, been taken further, but I appreciate that he did not feel able to continue with it for all sorts of technical and other reasons, and it was withdrawn. Therefore, there is no fallback other than legal proceedings if a proprietorial interest is infringed by the general belief that you can do what you like because the Government have said that you can build in your back garden.
Intensifying development in back gardens would unravel a lot of what local planning authorities have sought to protect on behalf of the community over decades since the Second World War. Their fundamental role has been to broker the deal between the interests of the community and private individuals in crowded environments. That has been a bedrock function of what local planning authorities have done.
I am very doubtful whether the Government’s proposals to deregulate will, as the Minister suggested in her letter, benefit construction to any great degree, as in any event 90% of applications go through. It may take longer for them to get through but apparently they do get through, so I cannot quite understand the argument about the economic benefits. We seem to be talking about only the 10% that might be refused.
Repairs and maintenance are a different issue from new construction, although I grant that new construction can often bring in an element of repair and maintenance with it, so I do not see that the Minister is entirely wrong in that. However, we come to the question that I and the noble Lord, Lord Tope, mentioned earlier of the moral hazard of giving out the idea that you can do more or less whatever you like in back gardens. I know that the Minister’s letter sets out some criteria for that and that may be helpful, but the community’s and individual’s rights of representation would be
removed without something along the lines of this amendment. The effects are very often a hotchpotch of poorly designed and incoherent additions, and I come across evidence of that all over the place in our townscapes.
I need to correct something in the Minister’s letter. There is no such thing as a statutory right to light. There is a common-law right to light by virtue of something called prescription, which is long enjoyment as of right over an extended period—usually more than 20 years. However, the actual effect of the common-law right to light is to maintain only a minimum standard, which most people would consider a pretty miserable standard of lighting coming in through a window or other prescribed opening. What really protects the situation is the Building Research Establishment guidance on daylighting, which tends to be implemented through local authorities’ development control policies. However, if you remove the need for development control, you remove the scrutiny and oversight of the BRE guidance. That is why development control is the only effective way of assessing, on a technical basis, the spatial considerations and daylighting between buildings.
Other noble Lords have referred to the fallback of Article 4, which is rather a poor safety net in this situation, although I am not an expert on Article 4 directions. There seems to be considerable time and energy to implement these. There is no defence for a local planning authority where there are proposals to carry out works between the point at which the Secretary of State deregulates and allows development in back gardens to take place, and the subsequent implementation of an Article 4 direction. In other words, there is a gap which is a significant danger area. Unless local planning authorities were able to prove, as of now, that in prospect of the deregulation that the Secretary of State may have in mind they were able to pursue an Article 4 direction, there would be a gap between the deregulation and the implementation of the Article 4 direction. That would be a very serious situation because of the compensation provisions referred to by the noble Lord, Lord Tope, who adroitly suggested that 270 Article 4 directions over the past three years hardly represent a torrent of Article 4 directions. The Minister might say, “That’s because it’s unnecessary”, but I suspect that it is much more likely because of some killer provisions in paragraphs 6.2 and 6.3 of the guidance. Paragraph 6.2 states:
“Local planning authorities may be liable to pay compensation to those whose permitted development rights have been withdrawn if they … refuse planning permission for development which would have been permitted development it were not for an article 4 direction … grant planning permission subject to more limiting conditions than”,
would otherwise have been the case, but for,
“an article 4 direction being in place”.
Paragraph 6.3 of the guidance states:
“Compensation may be claimed for abortive expenditure or other loss or damage directly attributable to the withdrawal of permitted development rights”.
We will need a very brave local authority to allow itself the privilege of the prospect of development in back gardens taking place, with the intention that it will use Article 4 to then close the gap—long after the horse has bolted, I suggest.
Those are the technical reasons why I support this amendment. I do so in the knowledge that this is very much in line with what the Government are trying to do in terms of deregulation. I respect that and well understand that there has been a general tide of tittle-tattle about the length of time planning decisions take and the somewhat petty conditions that are sometimes attached. However, we must not lose sight of the big picture, which is how local planning authorities have managed to protect our townscapes and built environment in a way that people in other countries would die for. As I said at the previous stage, they come over here to see how we do it. It is important to protect that, and that is why I support the amendment.