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Saffron Walden Planning Appeal Decision

Volume 640: debated on Tuesday 16 May 1961

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Motion made, and Question proposed, That this House do now adjourn.—[ Mr. F. Pearson.]

2.52 p.m.

In raising this matter of the Saffron Walden chalk pit case, I do not intend at this hour of the night, and in the short time available, to reiterate the facts. They have already been exhaustively discussed in the debates in another place. Nor am I primarily concerned with the merits of this decision, but rather with the procedure by which the decision was reached, and, in particular, with the explanation of the proceedings adopted in these cases which have been given by my noble Friend the Lord Chancellor in two statements in another place.

I turn first to the position of the Ministry of Agriculture, Fisheries and Food. We were told by the Lord Chancellor that the original belief that that Ministry supported the application from the outset arose from a misunderstanding as to the functions of the Ministry's Agricultural Lime Officer on the one hand and the functions of the Agricultural Land Commissioner on the other. If this belief had been confined to the applicant, or to local residents, no doubt that would be a satisfactory explanation, but nobody has rebutted the allegation made by Major Buxton that he was categorically told by no less a person than the Area Planning Officer that the Ministry supported this application. I think that that officer must be assumed to have had frequent previous experience of planning discussions with the Ministry, and must be assumed to have known which of these two officials was competent to advise on planning aspects. If he did not know that, it would appear that there is something radically wrong with the liaison between the Ministry and local planning authorities.

Secondly, there is still the inadequately answered question as to what was the position and attitude of the Ministry in this case. At a later stage, Major Buxton received from the Ministry an assurance which ran as follows:
"We have only just heard about this proposal from the local planning authority. We have expressed no view one way or the other, and shall go very carefully into the matter before we do so."
In my right hon. Friend's decision letter dated 17th September, 1959, it is stated that he had consulted the Minister of Agriculture, Fisheries and Food, and this was later explained in a letter to Major Buxton on 30th September in these terms:
"We consulted them (the Ministry of Agriculture) by asking whether they wished to add anything. Had they done so, we should of course have informed the parties to the Appeal and invited their comments; that would have been our duty. But in fact they did not wish to raise any fresh points or consideration, and consequently there was nothing fresh to invite the comments of the parties upon."
The Lord Chancellor, in his statement in another place, made the point somewhat differently. He stated that the Ministry of Agriculture experts confirmed the view already expressed by those in the Ministry of Housing:
"They said that in their opinion there was unlikely to be dust nuisance from the proposed working, even in the driest weather, and that even if some dust were dispersed beyond the site the quantity would not be sufficiently large to have any deleterious effects on crops or livestock. The Minister of Agriculture also expressed agreement with the evidence produced by the appellants at the inquiry about production need."—[OFFICIAL REPORT, House of Lords, 20th April, 1961; Vol. 230, c. 742.]
It is therefore abundantly clear that the Ministry of Agriculture expressed a quite definite and positive opinion on all those points at issue—the question of need, the question of dust, and the question of damage likely to arise from the dust.

After receiving my right hon. Friend's decision letter, Major Buxton wrote to the Ministry of Agriculture asking why if it was to be consulted it did not appear at the inquiry. To this my right hon. Friend's Department replied on 6th October that:
"In the present case the Ministry did not, at any time, express any positive view for or against the proposal."
It seems that somewhere between the Ministry of Agriculture, the Ministry of Housing and the Lord Chancellor's Department someone was acting, to say the least, rather less than frankly and that someone seems to have been remarkably naive in not realising that this sort of inconsistency was bound to add to rather than allay suspicion.

I want now to turn to the two statements made by the Lord Chancellor in another place. There will be no time to deal with these statements exhaustively and I want to concentrate on the Government's interpretation of paragraph 350 of the Franks Committee Report, which reads as follows:
"We think, however, that it is both desirable and possible to draw a distinction at the post-inquiry stage between new factual evidence on the one hand and advice on policy on the other. We recommend that the Minister should be under a statutory obligation to submit to the parties concerned, for their observation, any factual evidence, whether from his own or another Department, or from an outside source, which he obtains after the enquiry. In the definition of factual evidence for the purposes of this recommendation, we include expert opinion on matters of fact but not expert assistance in the evaluation of technical evidence given at the enquiry."
In my view, it is abundantly clear that the distinction which the Franks Committee was here seeking to make was a distinction between fact and policy. The distinction between "expert opinion on matters of fact" and "expert assistance in the evaluation of technical evidence given at the inquiry" is subsidiary to this main distinction.

Although in retrospect it may now appear to have been unhappily phrased, I have little doubt that what was intended was merely to preserve the Minister's right to seek advice as to the meaning of technical evidence. In another place, the noble Lord, Lord Silkin, put it as follows:
"I think that the experts, whichever Department they come from, have a duty to advise the Minister as to the meaning of the evidence given"——

Order. The hon. Member may not quote the noble Lord speaking in another place.

One, of course, could think of many examples where the Minister as a layman would require expert assistance. The Lord Chancellor, however, goes very much further and says that the expression "factual evidence" does not cover technical or other advice given to a Minister by officials on the issues raised at an inquiry and on the weight to be attached to the evidence which was given there.

Here again I think that once the expert attempts to evaluate evidence he must be said to be giving evidence him- self. In any case, I think that one must pose a question in this connection. How can anyone evaluate evidence which he has not heard, of which he has not a complete record but only a very abbreviated summary of an Inspector's report which, in this case, condensed the evidence, which took two days to give at the inquiry, into eight pages of foolscap which included a description of the site and his recommendations.

What, in fact, happens when any expert gives evidence? He gives his qualifications, whether he is a doctor, an architect, an engineer, or whatever he may be, and in effect states that in given circumstances he would expect, or in his opinion, certain results would follow. Probably—in this case almost certainly—there were equally distinguished expert witnesses on the other side drawing different conclusions and sometime entirely contradictory conclusions. The view that prevails in these cases inevitably depends to a very large extent on the effect of the cross-examination of these two sets of witnesses.

In this connection, I am bound to say that I did not find the Lord Chancellor's analogy with an Admiralty judge a quite satisfactory one. Of course, the judge relies on his previous experience in evaluating the evidence. But so does the Inspector. Surely that is one of the main objects of having among these inspectors people with professional qualifications and experience. I was under the impression at the time when the Franks Report was being considered that one of the main reasons why the Government rejected its recommendation that the inspectors should be transferred to the Lord Chancellor's Department was that it was thought that they would be in a better position to evaluate evidence on planning matters if they remained under my right hon. Friend. What an Admiralty judge most certainly does not do—and to my mind this is a much clearer analogy—is to retire to his club, find a friendly expert on the same subject, submit to him a potted version of the evidence and accept his ruling on the ground that because he belongs to the same club he must of necessity know more about the subject than the expert witnesses appearing at the inquiry.

In this case, we have a distinguished analytical chemist and a distinguished veterinary surgeon. Both gave their evidence on the basis that the kibbling process of lime would be employed. Both were cross-examined and re-examined and, as a result, the Inspector, who happened to be an Associate of the Royal Institute of Chartered Surveyors, was fully satisfied that there would be dust and that that dust would cause damage to crops and stock. And this, despite that fact that on the other side expert witnesses quite clearly put the views expressed by the Minister's advisers in considering the Inspector's report, and that in doing so they apparently completely failed, after cross-examination, to convince the Inspector.

When the Inspector submitted his report to the Minister's advisers, in effect they said that the Inspector had made a mistake and that these eminent witnesses were wrong. But as soon as they do that, in my opinion, they are doing exactly the same thing as the witnesses on the other side did at the inquiry, and they did it unsuccessfully at the inquiry. It seems to me that the Lord Chancellor is in effect saying to the parties who appeared at the public inquiry that if their case depends on evidence which can in any sense be termed technical, no matter how eminent their witnesses, how well they stand up to cross-examination or how convincing their testimony, the Government always have the right to over-rule them on the advice of a civil servant who is anonymous, whose qualifications are unknown, who did not visit the site, who did not appear at the inquiry, who was not cross-examined and who has seen only a potted version of the evidence.

It seems perfectly plain that whether or not kibbling of lime causes dust is a question of fact. Evidence cannot cease to be evidence because it is given by a civil servant. Facts do not cease to be facts simply because they are technical.

I should like to quote a short passage from a lecture given by the present Lord Chief Justice just after the Franks Committee's report was published, and I think that Lord Parker was a member of that Committee. He said:
"There is one thing that I think is of very great importance—namely that steps should be taken to see that the Ministers do not take further evidence after the inquiry has been closed. That defeats the whole object. The citizen should know the exact facts on which the decision has been arrived at and see the decision. If the Ministers choose, and I am not saying they shouldn't, to take advice from experts, whether in the department itself or from outside the department, whether it be on matters of drainage or on some other matter, it is vital that the citizen then should be given another opportunity to comment on that evidence and to call evidence of his own. That is, I think, a practical problem, but there is a real danger of the Ministry feeling that they want further expert opinion on the matter and getting it, and then failing to give an opportunity to the objector of dealing with it. That is another matter that I think pretty important."
It will be noted that the Lord Chief Justice makes no attempt at all to try to draw a distinction in this context between advice and evidence. The Lord Chancellor has, however, asserted in both his statements that the Government have always drawn this distinction by taking the view that factual evidence does not cover technical or other advice received from Government officials. As far as I can ascertain, this qualification to their acceptance of the Franks Committee recommendations was nowhere mentioned by Government spokesmen in any of the debates in this House on the Franks Committee's recommendations or on the Tribunals and Inquiries Act, 1958. Nor does it appear in my right hon. Friend's Circular No. 9/58 where the relevant passage seems to be quite definite in the matter. It says:
"If new factual evidence is brought to the Minister's notice from any source after an inquiry, and in his view it may be a material factor in the decision, he will give the parties an opportunity of commenting on it".
But this is surely an absolutely fundamental reservation, and I think that the House had a right to be notified of it long before the case arose, which was two years after the Tribunals and Inquiries Act was passed. Perhaps the explanation lies in the very limited time which the Government allowed for discussion of this very important Bill. That, too, may explain the failure to lay down in any detail the procedure to be adopted by the Council on Tribunals when referring a matter to the Lord Chancellor. I hope that on future occasions there will be a statement to the Council on Tribunals and that it will not be published and argued about in Parliament until the Council has had an opportunity of appending its comments.

It may well be that my right hon. Friend has good reasons for the decision to which he came, but I think that this case has revealed disturbing deficiencies in procedure which have been made no less disturbing by my right hon. and learned Friend the Lord Chancellor's attempts to explain them. At the very least, it is quite clear that the Government's assurances on the Franks Committee's recommendations have not quite the meaning that many of us have supposed.

I hope that this debate may help to produce second thoughts and clearer and more understandable objectives and distinctions in the future. I think that we should all be grateful to Major Buxton who has insisted on bringing these things to light, and, perhaps more important, has brought to the public attention the immensely valuable work that the Council on Tribunals can and I am sure will continue to do in the future.

3.9 a.m.

The Minister of Housing and Local Government and Minister for Welsh Affairs
(Mr. Henry Brooke)

My hon. Friend the Member for Gloucestershire, South (Mr. Corfield) has left me very little time, but I must put on record the facts of the case because some of them have been frequently misrepresented. The case concerns an extensive open pit by the roadside, where the land has been dug up to extract sand and gravel. There was also a former planning permission to dig chalk, but that expired in 1957 without being made use of.

Messrs. Heath applied for a renewal of that permission. The planning authority this time refused, and Messrs. Heath exercised their right of appeal to me. My responsibility, therefore, was to decide between a private enterprise firm which wanted to do something and a public authority which wanted to forbid them doing it. I decided in favour of the firm and against the public authority, and for that I have been strangely accused in the Press of bureaucratic interference with individual rights.

In handling planning appeals I count it my duty to be absolutely impartial. Appeals concerning mineral development present particular difficulties, because there is nearly always some objection on amenity grounds. My sole concern in this case, as in many others, was to determine whether the desire of people to do as they wished with their own, and to work this natural asset, should be overridden on the ground that it would cause too much interference with other people's amenities. In a recent Oxfordshire ironstone case, for example, I decided that the amenity objections were overwhelming. In this other case I decided that they were not substantial enough to justify me in saying "No."

It made not the smallest difference to me or my Department's interests which way it was decided, provided that it was decided justly. In another case nearby I refused planning permission to work sand, and I have been accused of inconsistency in refusing the sand working on amenity grounds and allowing the chalk working. What the newspapers who have levelled this charge against me would have discovered, if they had checked their facts, is that that proposal was to dig up and spoil 10 acres of farmland, radically different from this proposal, which was to dig chalk from land already spoilt.

There are three distinct points at issue in this case. First, whether the decision, taken by itself, was right; secondly, whether, in arriving at the decision, my Department and I scrupulously observed the rules of procedure laid down for these planning appeals, and thirdly, whether the rules themselves are properly drawn and as good as they can be. I have no doubt whatever that my decision in favour of the people wishing to work the chalk was sound, practical and right. It was given more than eighteen months ago; to revoke it now would be quite unjust. Fortunately, on this point time should provide the test; when the chalk is worked it will be seen whether I was right or wrong.

The second question is whether the rules of procedure were faithfully observed. My right hon. and noble Friend the Lord Chancellor has investigated and confirms that they were. I and other Ministers with responsibility for public inquiries are at the receiving end of these rules. I do not make them—they are made by the Government as a whole, and my duty is to observe them. Had any new fact come to light after the public inquiry, I would, of course, in accordance with the rules, have put it before the parties to the appeal and invited their comments. If a point had come up after the inquiry that, for example, water supply might be affected if the chalk were worked, I would have done that, naturally. But no new point or fact did come up, and what I had to do was to evaluate the evidence given at the inquiry and see whether or not it led me to the same conclusion as my Inspector.

Several usually responsible papers have misled the public at this point by writing as though there had been no conflict of evidence at the inquiry. I wonder where they got that idea from. It is quite untrue, as the writers would have discovered if they had read the Inspector's report, which brought out the conflict of evidence clearly. It is quite a significant feature in all this that people who have been quick to convict me of alleged mistakes have taken so little trouble to check the accuracy of their own statements.

When my Inspector's report on the public inquiry was sent in it contained a full and, I am sure, accurate summary of the evidence for and against allowing the chalk to be worked. There was however one not altogether clear point in his conclusions. The evidence of the appellants was that they had no intent of grinding the chalk down to powder; they proposed to use the kibbling process, which would produce small lumps of chalk but would not, they said, cause dust. However, my Inspector said in his conclusions that the chalk, if ground to powder, would fly about, and it was on this score of dust nuisance that he recommended me to dismiss the appeal.

Clearly this is exactly the situation where the Minister must look, as the Franks Committee said he might very well look, to assistance from officials in evaluating the evidence given at the inquiry. My hon. Friend seemed to question that. I thought he was rather out-franking Franks. The advice I received in this case was that the appellant's evidence was borne out by experience. If the permission was confined to the kibbling process and did not extend to grinding chalk to powder, the risk of dust blowing about was not great enough to justify forbidding the working of the chalk.

On this I decided to allow the appeal subject to strict conditions. Before doing so it was obviously right for me to consult the Ministry of Agriculture. How could I justify my action to Parlia- ment in allowing an appeal that might affect farm land if I had not done so? The Ministry of Agriculture accepted that the amount of dust was not likely to harm land or livestock. Of course these were official consultations; the story that I had a private word with the Minister of Agriculture and that this was what led me to decide as I did is sheer nonsense.

The Ministry also confirmed the appellant's evidence that need existed for chalk in the area though this was not material to my eventual decision because once I was satisfied that there would be no serious nuisance from chalk dust blowing about on to neighbouring land there was no reason for withholding planning permission. The answer to my hon. Friend's allegation of inconsistency is that there have been no inconsistencies at all. The Ministry of Agriculture simply answered my Department's inquiries in accordance with its duty. Whatever conversation may have taken place between Major Buxton and an official of the Essex County Council that seems less authoritative evidence of the views of the Ministry of Agriculture than the word of the Minister himself. It was certainly not because of pressure from the Ministry of Agriculture that I took this decision. That is the point which matters because I on my own judgment had to decide.

I have been criticised for not agreeing with my Inspector. Some people have even described me as overturning the Inspector's decision. But the Inspector is not a judge. It is not his duty to decide. His duty is to listen to anyone who wishes to express views at an inquiry and to ascertain the local facts and to clarify the issues as part of the process of enabling the Minister eventually to reach a decision. The Inspector is a civil servant, and if Parliament wishes appeals to be decided by a civil servant let it say so; but then there will be no accountability to Parliament. So long as Parliament places the responsibility on me, I must have some power to use my own judgment. Parliament can call to account a Minister; it cannot call to account a rubber stamp. If the Minister is not to be a rubber stamp for his Inspector it follows that he must be at liberty to make use of the collective experience and judgment of his principal advisers within the Ministry who will know more than any individual inspector can of precedents and planning problems as a whole.

The Inspector's recommendation is always of great importance because he has conducted the inquiry and has seen the site but he is not necessarily and always right and, in the public interest, the Minister must not be required to say he is if he comes to the conclusion that he is not. If an inspector, for instance, thinks that a small intrusion into a green belt is not too bad and ought to be allowed, must the Minister allow it against his own judgment?

This brings me to the last of the three questions, the rules of procedure laid down by the Government for Ministers to obey. The Lord Chancellor made it clear that the Government agree with and accept the basic distinction between evaluation and advice on the one hand and new factual evidence on the other. The trouble is that it is not easy to formulate this distinction with precision. The speech of my hon. Friend glossed over this. Very likely the Council on Tribunals will be looking at this point and may be discussing further with the Lord Chancellor to see whether the demarcation line can be more closely defined. We of the Government are ready to consider any practical suggestions, but it is essential in this matter to keep a sense of proportion. I have read in newspapers which ought to know the facts that this chalk pit case proves the whole public inquiry system to be a farce. The answer to that is this. Last year, in 93 per cent. of all the public inquiries I accepted my inspector's recommendations entire. In only 7 per cent. did I depart from them either wholly or to some extent. In every case the reasons were stated.

There are nowadays, in a year, about half a million planning applications and about 5,000 appeal decisions following public inquiries. Only a tiny fraction of the 5,000 gives rise to any subsequent complaints reaching me or my Department, whether from Members of Parliament or otherwise. If the allegations were true that there was widespread lack of confidence and the inquiry system was a farce, that would have shown itself long ago in a spate of Parliamentary Questions and Adjournment debates like this. Question Time in the House is a very sensitive barometer.

I do not believe that the real dissatisfaction of the public is with the quality of the decisions or with the rules of procedure. The real dissatisfaction is that the whole process of reaching a decision takes far too long, and I share that dissatisfaction. This is what I set myself to tackle when I became Minister four years ago, and I would have succeeded but for the fact that, as we built up the staff to try to accelerate the handling of appeals, the flow of appeals increased even faster. The number of appeals, which is a fairly constant fraction of the number of planning applications, has doubled in the last four years. I have managed to prevent the time getting longer. But we must shorten it. That, I am certain, is what the ordinary member of the public who has anything to do with planning appeals wants most of all.

In this chalk case my conscience is clear that my Department and I observed meticulously the rules of procedure laid down by the Government. If ways can be discovered of improving the rules or the procedures under them, that is all to the good, so long as they are practical. Parliament places on me a heavy responsibility, of which I am very conscious, in seeing that this mass of appeals are handled aright. If Parliament wishes the procedures to be elaborated still further in the pursuit of perfect justice, I would only ask that it be remembered that the right of developers and the rights of objectors are equally to be regarded, and that from the applicant's or the appellant's point of view justice too long delayed is justice denied.

3.21 a.m.

This is an important matter and the House may well wish to return to it when it has greater leisure. It seems that the——

The Question having been proposed after Ten o'clock on Tuesday evening and the debate having continued for half an hour, Mr. DEPUTY-SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at twenty-two minutes past Three o'clock a.m.