HC Deb 25 November 1909 vol 13 cc431-42

(1) Where an order made by the Development Commissioners under Part I. or Part II. of this Act authorises the acquisition of any land forming part of any common, open space, or allotment, the order, so far as it relates to the acquisition of such land, shall be provisional only, and shall not have effect unless and until it is confirmed by Parliament, except where the order provides for giving in exchange for such land other land, not being less in area, certified by the Board of Agriculture and Fisheries to be equally advantageous to the persons, if any, entitled to commonable or other rights and to the public:

Provided that—

  1. (a) This provision shall not apply to the acquisition of any common land for the purpose of forestry if the order provides for the granting to the public of reasonable access to the land for air, exercise, or recreation unless the land has been dedicated to the public use and enjoyment or is a metropolitan common within the terms of the Metropolitan Commons Act, 1866, or is a suburban common as defined by the Commons Act, 1876, or is subject to a scheme of regulation made in pursuance of the Metropolitan Commons Acts, 1866 to 1898, or the Inclosure Acts, 1845 to 1899, or to a private or local Act of Parliament; and
  2. (b) This provision shall not apply to the acquisition of any common land for the purpose of the construction of a new road or the improvement of an existing road within a rural district; and
  3. (c) Nothing in this Act shall authorise the acquisition of land on either side of a new road to be constructed by the Road Board where the land forms part of a common, open space, or allotment.

(2) Before giving any such certificate of equality of exchange the Board of Agriculture and Fisheries shall give public notice of the proposed exchange, and shall afford opportunities to all persons interested to make representations and objections in relation thereto, and shall, if necessary, hold a local inquiry on the subject.

(3) Where any order of the Development Commissioners authorises such an exchange the order shall provide for vesting the land given in exchange in the persons in whom the common, open space, or allotment was vested, subject to the same rights, trusts, and incidents as attached to the common, open space, or allotment, and for discharging the part of the common, open space, or allotment acquired from all rights, trusts, and incidents to which it was previously subject.

(4) For the purposes of this Act the expression "common" shall include any land subject to be enclosed under the Inclosure Acts, 1845 to 1882, and any town or village green; the expression "open space" means any land laid out as a public garden or used for the purposes of public recreation and any disused burial ground; and the expression "allotment" means any allotment set out as a fuel allotment or a field garden allotment under an Inclosure Act.

Lords Amendment: Leave out from the word "Parliament" in Sub-section (1) to the end of Sub-section (3), and insert, "but this provision shall not apply to the acquisition of any common land for the purpose of the construction of a new road or the improvement of an existing road within a rural district. Provided that no order of the Development Commissioners under Part I. or Part II. of this Act shall authorise the acquisition of any land which is a metropolitan common within the terms of the Metropolitan Commons Act, 1866, or is a suburban common as defined by the Commons Act, 1876, or is subject to a, scheme of regulation made in pursuance of the Metropolitan Commons Acts, 1866 to 1898, or the Inclosure Acts, 1845 to 1899, or to a private or local Act of Parliament."


As I had in hand the negotiations with regard to the original proposal, I may be allowed to state the reasons why the Government disagree with the Lords Amendment. I think the Amendment was inserted in another place under a misunderstanding. There was no discussion there, and the gentleman representing the Commons and Open Spaces Preservation Society had not an opportunity of explaining the reasons for our putting down the Clause as it originally stood in the Bill. The Clause, as I have already explained, was the result of a very long negotiation with the society which has a right to speak in favour of the preservation of commons, and which contains among its members and officials a very large number of the Members of both Houses of Parliament. The Clause did not give us all we wanted in the Development Bill, nor did it give the Commons and Open Spaces Preservation Society all they wanted. The Clause embodied what was in the nature of an agreed compromise. It was discussed a little in Committee upstairs, and passed unanimously there, and it was passed unanimously on the Report stage in this House. The general result of the Clause as it left the House is that, following the precedent of the Housing and Town Planning Bill, no common land could be taken for any purpose under this Act unless some equivalent land of equal value was given in exchange. We took power giving the Commissioners the right of afforestation of waste lands under certain limited conditions so long as reasonable access to the land for air, exercise or recreation is granted to the public, and so long as the land has not been dedicated to public use or employment. From that you exempt metropolitan and suburban commons and commons under private or local Acts. Then we took powers to make roads through common lands if the Commissioners wished to do so within the rural districts, and we struck out the right to acquire land for 220 yards on each side of those roads. The Lords have put in an Amendment which prevents us from acquiring any common land for any of these purposes except that for roads in rural districts, and that also under limited conditions. They have refused the right of afforestation of waste lands, and they have refused the right of roads in commons in rural districts which are not urban commons. We ask the House to adhere to the compromise which was suggested in conjunction with the Commons and Open Spaces Preservation Society, which will prevent the possibility of a road being diverted to a great common which is really a waste land on the one hand, or the somewhat wild regions in this country eminently suited for experiments in afforestation, not being allowed to be subject to these experiments without a special Act of Parliament.


I do not in the least wish to go into the question with regard to the Commons Preservation Society. There are two views, as my hon. Friend (Mr. Masterman) knows. Of course it does not bind this House in the least. It may bind my hon. Friend (Mr. Cowan), but I do not complain of that. I think we had better keep quite clear of it. I can see nothing to justify my hon. Friend (Mr. Masterman) in saying that all friends of commons accepted the Government form of the Bill as arranged here and on Report. It was at least an enormous improvement on the previous condition of the Bill. But I find myself in a great difficulty. I believe that there is a serious danger to the commons under this Clause in the Government form. With regard to fighting the matter on this occasion, I should certainly leave it to others to fight if anyone wishes to do so, and for this reason: my hon. Friend says it would not be right under all the circumstances of the Bill entirely to exclude the power of taking certain common lands. On the Report which came before this House on afforestation a very strong case was made out against the possibility of growing coniferous timber in England—in contrast to Wales, and Scotland, and Ireland—with any possibility of its paying. In connection with these schemes that were proposed at that time concerning the middle heights of the mountains of Wales there is a great deal of common land there which is at the present time devoted to growing mutton. It is that question between mutton and coniferous timber in certain portions of the Welsh hills which ought to be left open. There is one great difficulty in accepting the more sweeping Amendment of the House of Lords. On the other hand we must remember that this Amendment of Lord Meath is not made as a Conservative or party Amendment in the House of Lords. It is made by one who has always had a great interest in the question of open spaces, and it was accepted by the Government in another place without a single word. My hon. Friend made no allusion to what passed in the House of Lords except that he thought it was accepted under a misapprehension.


I do not think the Government accepted it at all.


Well, they did not say a word. As a general rule, if objection is strongly felt, especially towards an Amendment which so completely changes the framework of the Clause, some protest is made at the time, but this was not done by the Government. What is the principal danger in connection with the afforestation of commons in England? This House has been very careful to prevent any imitation in recent years of the horrible practice of enclosing the commons against the public, which had occurred until the matter was taken up in this House. This Bill enables a case to arise, which I think will arise, which ought not to be the subject of a change in the law at the present time, and ought not to be passed over without being put before the House, although it may be very difficult to find a- correct form of words and very difficult to draft a proper Clause which would be a fair compromise as between the two proposals before us. There is the danger, of course, in the road part of the Clause as regards commons, but it is guarded in the Government proposal, and I merely mention that some beautiful commons have been destroyed by railways before this House began to attend to the question. I do not know whether I can speak for Sir Robert Hunter, who is the strongest supporter of Lord Meath's Amendment, but I can speak for myself and some others—I discussed it with Lord Eversley, I think—and we should be quite prepared to give up the roads if a compromise were arrived at. It is confined to rural roads, and, in the case of these powers, I do not think it is likely that the roads part of the Clause will seriously operate for harm to the Commons. But the afforestation part may undoubtedly do harm.

I will put two cases. There is the case of the very large Lammas lands in some parishes which have been saved, which in very many cases have been planted with osiers and cause no harm. A number of these are still ordinary rural commons and not suburban commons. In the case of these there, is one class of afforestation that would, in my opinion, pay, that is the culture of willows. A very large portion of those that have been enclosed is now under willow cultivation, and it is a form of afforestation which I think many local authorities would approve of and which is likely to be undertaken and to pay. In that ease I think we may lose under the provisions of this Bill important public rights. You are to have the right of reasonable access for recreation, but in many cases which exist now where public authorities hold land, afforested and other lands similarly treated by law, the sporting rights are let. There is nothing in this Bill to prevent the authorities letting the sporting rights over these lands, just as lords of the manor do let the sporting rights now over commons, and as public authorities do in the case of fuel allotments which are near commons. I feel certain that there is a real danger of reasonable access for the purpose of recreation being so interpreted where the shooting is let, where the letting of the shooting is an important portion of the rent, and that the public will really be excluded. Judging from what I have seen in three Royal forests in different parts of the country where this sort of access is given, the interpretation of rights of access in these cases where the shooting of these lands is let must certainly tend to produce a real danger in the Government proposal. I agree that the other words are probably too wide. It is very difficult to draft words on the spur of the moment, but everything that will happen in future in working this Clause will have to be carefully watched by this House.


The right hon. Gentleman who has just sat down is a well-known, friend of open spaces, and the House will attach importance to his views. I am in a different position, because I am responsible for the negotiations conducted between the Commons Preservation Society and the Government, as represented by the hon. Member (Mr. Masterman), who preceded the right hon. Baronet (Sir Charles Dilke). I do not feel under those circumstances that I am justified in going into the merits of the Lords Amendment. I am bound to say, if I had my choice as between the Amendment and the Government proposal, I should prefer the Clause as amended by the House of Lords. I think that when the House of Lords was good enough to make Amendments obviously in the public interest, it would be very agreeable, to the feelings of the House if the Government were able to accept them. At the same time the Government treated us with extreme fairness throughout the negotiations; they conceded to us a great deal more than some of their supporters thought they were justified in conceding, and there is no doubt whatever that we have obtanied substantially all that is necessary for the protection of commons and open spaces. That being so, I am bound to adhere to the compromise effected. I am bound to give the Government credit for the fair manner in which they treated us. Of course, if the Government, as an act of grace, were to offer as more, what the House of Lords is endeavouring to obtain for us, we should be grateful to the Government. But that I do not ask. I am satisfied with what we have got, and I thank the Government for what they have done.


For my part I cannot share the view that has just been expressed. When the hon. Member talks about compromise I do not follow him. I have detected no note of compromise in the statement which was made by the Under-Secretary (Mr. Masterman).


The compromise is to be found in the Clause which was accepted by the Government upstairs. It was practically an agreed clause.


I am quite aware of what passed upstairs, but the hon. Member recalls that in another place further Amendments were moved. Those Amendments were actually inserted in the Bill. So far as I can gather from the Under-Secretary those Amendments are to be totally disagreed with, and the Bill is to be restored to the state in which it was before it went to the other House at all. I think the Clause as it stands in the Bill, and as it left this House—that is to say, in the condition which the. Government proposed to pass it into law—is full of genuine dangers to existing open spaces. The hon. Member opposite, I understand, feels that he cannot get any further concession out of the Government, and therefore he abandons the attack. The right hon. Gentleman the Member for the Forest of Dean (Sir C. Dilke) apparently fully realises these dangers, but he is too diffident to press more than an academic protest.


I am a Member of the Commons Preservation Society, and I have been chairman of that society, but I feel a, good deal hampered by what has happened since.


It is well that the House should appreciate the dangers which exist. I think they are really very great. It is not merely with regard to roads that the commons may be affected. Part I. of the Act contains proposals which include light railways, experiments in agriculture, and various other matters of that character, and there is no guarantee such as we should possess that afforestation or light railways will be the only things which will curtail common rights. I must make a further observation about Sub-section (a). The Provisional Order procedure under Sub-section (1) is excluded from Sub-section (a), and does not apply. If common land is taken for the purpose of afforestation the public by the terms of the Subsection are to have "reasonable access to the land for air, exercise, recreation," and so on. Let me say frankly, I think that is disastrous. If you afforest land, whatever may be your sentiment about public rights or air, recreation, and exercise, to give access to the public would be perfectly fatal to the young woods, for the people might smoke there and burn out the young woods and destroy them. That is the universal experience. When you have the woods already, well and good; the people may do no harm, except, perhaps, cut their initials upon the trees. But when you have young woods, it would be perfectly fatal to admit the public for air, exercise, and recreation. You may say that they might be allowed to walk through the drives in the wood for recreation, but ex hypothesi these woods and forests would be in districts remote from great urban centres. I really think that, for the sake of academic homage to public rights, it is ridiculous to insert a provision the result of which might be to really imperil the existence of a forest. It is a great mistake, but I suppose it is of no use protesting. It is quite obvious the Government do not mean to accept any of these Amendments save one or two verbal Amendments. Yet it is well that we should state our opinion that this Clause as proposed to be enacted is a definite infringement of the existing law for the maintenance of commons and open spaces, and as such is very detrimental indeed.


The Noble Lord is inaccurate in his allegation that we are determined to accept no Amendment except verbal Amendments. I can assure him that the Government, my hon. Friend, and myself have looked with a single eye to improving the Bill. With regard to this particular Amendment, of course we are not prevented at all from dealing with the Lords Amendment by reason of agreements made between the Commons Preservation Society and those interested in the Bill, and which were incorporated by the Government in the Clause. The history of the matter given by my hon. Friend is a perfectly accurate one. The Commons Preservation Society, who have done so much for the preservation of commons, represented the matter to the Government, and it was upon their application that these Clauses were inserted. The effect of the Lords Amendment would be this: First of all, it would prevent entirely the compulsory acquisition of any common land except by Provisional Order. In regard to the roads part and the development part of the Bill, we cannot assent to the proposition that in no case ought we to acquire common land except by Provisional Order. The other effect of the Lords Amendment will be to prevent entirely the acquisition of any urban common land. In the Clause as it appears in the Bill, we have the two sets of Commissioners, the Development Commissioners and the Road Board to deal with common land, and we have hedged about their powers. Except for afforestation and drives through woods, we have said that in no case can they take common land unless the Board of Agriculture is satisfied that land not less in area and equal in convenience is being substituted for the land taken. Surely if you require a Provisional Order in every case, apart from these two exceptions, that is a very ample protection.

With regard to the exclusion from the operation of the provision of land for afforestation, that is a matter to which prominence has been given by my right hon. Friend the Member for the Forest of Dean and the Noble Lord opposite (Lord Balcarres). I know a great deal about these common lands in the Principality from which I come, and I think so far from the commoners objecting to any land being taken for afforestation, they would be very glad indeed to have it, on being compensated for their common rights, because afforestation does a great deal to cover and shelter the sheep now grazing on the Welsh hills. Everybody knows that it is of the utmost importance to have plantations for the protection of these animals. With regard to a further observation made by the Noble Lord opposite, I entirely agree that where the public have access to common lands the privileges afforded should be properly used. The provision of reasonable access is for the purpose of I air, exercise and recreation, and I have no doubt that it is entirely within the powers of the Commissioners to see that nobody abuses those privileges for purposes of mischief. I think that the protection we have given to common lands ought to be accepted by everyone who has the interests of these commons and open lands at heart. If I had to choose between proposals of the Government and those of the Lords. I certainly, as one interested in common lands, should prefer the proposals contained in our Clause 19 to the provisions incorporated by the Amendments of the House of Lords.


As one interested in commons and open spaces, I am glad that this Debate has occurred. The observations of the Noble Lord opposite, I think, have been largely answered by the learned Solicitor-General. This compromise, if passed into law, will go far to pre- serve commons and all their amenities. I think it is a very good thing that the matter has been debated, and where there are commons no effort should be missed to secure that they are kept. In Scotland commons have mostly disappeared, but I congratulate those societies who have moved in the matter upon the enactment of the Clause as it stood before it went to another place.

8.0 P.M


I am rather astonished at the position the Government have taken with regard to the Lords Amendment. Undoubtedly it is generally understood that the Clause as a whole was accepted. That was the general opinion outside. But even if it is not so, and if the Government, as they now say, oppose the Clause, they ought, in common fairness to the House of Lords, to have said so at once. I should be sorry indeed to take part in opposing anything which comes from the House of Lords simply because it does come from that Assembly. To my mind, it is a ridiculous position to take up, and I should gladly accept anything that is good, no matter where it comes from. As this is a matter of great importance, I will say a word or two in regard to the Corporation of the City of London. I do not refer to the open space in front of the Royal Exchange, but I do refer to Epping Forest, which is one of the finest open spaces, I suppose, in the whole country, and which we in the City are most anxious to protect in every way. The law officers of the Corporation state that it is very important that the proviso of Clause 19 which was inserted by the House of Lords should be retained, as it provides for the protection of open spaces under the control of the corporation. If there is ample protection in the Bill without the Lords Amendment, the Government ought to tell us so, and explain it. They have not done so in the House of Lords, that is certain; they have said nothing, and they pretend that the Bill was right enough as it stood when it went to the House of Lords. They are trying to rely on some bargain of theirs, or some promise, or supposed compromise with some society. That society did not object to the Clouse and, as I understand, they are in favour of it. Surely, therefore, if it gives more protection to open spaces the Government ought readily to agree to it, and I hope, even now, they will reconsider their decision, and that they will not take up the position that they will not accept anything because it comes from the House of Lords. They admitted in the House of Lords that this was a good Clause, and I hope they will take up the same position here. I am bound to say, as a supporter of the Government, that if they do not do so I shall feel bound to vote against them.


I think the learned Solicitor-General somewhat underrated the possible effects of afforestation. As he is probably aware, in the New Forest some years ago an attempt at afforestation was made with, and as everybody knows, disastrous results. I take it, where you have any plantation of trees you cannot admit the public for a certain number of years at all. I am not familiar with the business of afforestation, but I have noticed where young plantations are being made that those responsible for them are particularly careful to exclude the public altogether. Therefore, in the event of a common being used for afforestation, it would be necessary to exclude the public altogether from that part of the common. In that way the terms of the Bill seem to me to be absurd. With regard to this matter I am in the same position as my hon. Friend the Member for Guildford (Mr. Cowan). Because I had some little share in connection with the Commons and Footpaths Preservation Society as to this matter. I must say I am profoundly grateful to the Government for their kind acceptance of the very strong recommendation made to them. I should like to see some such Clause as that adopted in the Lords made a Standing Order of this House, so that legislation as to open spaces might be more perfect in its character. While I should like to support the Lords Amendment, I shall certainly not take any action against the Motion.


In the Division which I have the privilege of representing there are some of the most beautiful commons in the South of England—one of them in particular, Harpenden Common. If the Amendment from the Lords is not accepted it would be possible, even without the Provisional Order, to ruin the beauty of some of those commons. The right hon. Baronet the Member for the Forest of Dean (Sir C. W. Dilke) seemed to be of the opinion that the chief danger would arise from afforestation. That would not apply to our commons or those in neighbouring counties, because the areas are restricted in size; but one could hardly imagine, say in the case of Harpenden Common, a decision more fatal to the beauty of the whole district than a resolution, say, to cut one of those great roads through that common. The road would naturally run from south to north along the length of the common, and powers would be taken to acquire 220 yards on either side of such road, which practically would involve the whole surface of that common. So that unless this Amendment is embodied in the Bill there is at any rate a danger of the destruction of such a beautiful feature of the countryside as these commons constitute. Then there are people in those common grounds who have clearance for firewood and turbary and pasture, I know it is claimed by the learned Solicitor-General that the Government have made provision for the interests of those common owners, but the mere substitution of another piece of laud of the same area, and as to the quality of which we shall have no kind of guarantee and which need not even be adjacent does not deal with the matter.


Yes, equally advantageous.


That is a very wide term, and it might be alleged that another piece of land was equally advantageous. I think that great danger is likely to arise from those great roads and the obtaining of the control of the spaces to the right and left. Great danger would arise from the proposal of afforestation, and I have no doubt that in places like the New Forest an immense amount of harm has already been done by the injudicious planting of trees, and by the substitution for the hardwooded indigenous trees of juniper trees, changing that bright, picturesque English look into a mournful dreary aspect. I venture to urge the Government, as they have been urged from the other side, to accept this Amendment.

Question, "That this House doth disagree with the Lords in the said Amendment," put, and agreed to.

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