I shall speak to Amendment 281C. I am grateful to the noble Baroness, Lady Taylor of Stevenage, for her introduction and support for that amendment. It is one of two amendments which I have tabled to give effect to recommendations by the Constitution Committee, of which I am a member, seeking to promote the principle of legal certainty. The problem which concerned the committee in this case relates to the width of the power in the new Section 196E, introduced by Clause 113.
The Explanatory Notes say that the position at the moment about decisions
“to take enforcement action in response to breaches of planning control is at the discretion of the local planning authority”.
New Section 196E seeks to give power to the Secretary of State to provide relief from enforcement and planning conditions in a particular way, by providing that a local planning authority
“may not take … relevant enforcement measures”
or is subject to particular restrictions as to whether it should take that step.
The reason given in the Explanatory Notes is really a bit of history. In the difficult circumstances that arose as a result of the Covid-19 pandemic, with a later acute shortage of heavy goods vehicles,
“local planning authorities have been encouraged to be flexible in terms of enforcement action of non-compliance with conditions imposed on grants of planning permission which govern construction working hours and delivery hours”.
Those are the kind of conditions put forward to protect the environment of local residents, and so on—and, obviously, when they are imposed, they are imposed for a very good reason. But the Covid-19 situation, with the acute shortage of heavy goods vehicles, made it desirable that these hours should be extended, instead of being restricted to hours that would not interfere with people’s sleep, or whatever else it would be. There was a good reason for being more flexible and allowing the hours to be extended.
That is the background to the step being taken here, but the Constitution Committee’s concern was about the width of the power being sought under new Section 196E. The section is carefully drafted, because it says that what the Secretary of State may do by regulations is to give direct attention to
“relevant enforcement measures in relation to any actual or apparent failure to comply with a relevant planning condition”.
Those expressions, “relevant enforcement measures” and “relevant planning condition”, are carefully defined in this new section and are wide in their scope. “Enforcement measures” includes all the powers that one might expect—the powers to apply for enforcement orders, injunctions and entry without a warrant, and so on, to see what is going on, and to deal with issues about planning contravention notices, temporary stop notices, enforcement notices, warning notices and so on.
The new section is very carefully drafted. What it does not do is contain any kind of limit on the extent to which the power might be used, which is why the Constitution Committee, in its report, said that it was concerned by the breadth of the power and recommended that the clause should be amended to ensure that the power was limited to
“emergency situations or other forms of serious disruption”,
following the example set out in the Explanatory Notes. My amendment provides simply that the power may be exercised only
“in the event of an emergency or other form of serious disruption which makes it necessary for the local planning authority to be provided with this relief”.
As I said, the background is that, in any case at the moment, the local authority has a discretion as to how far it should go in dealing with breaches of planning conditions, but the power is actually giving directions. Therefore it is necessary, in the interests of legal certainty, that the scope of the power should be limited along the lines that my amendment suggests.