§ Mr. Powell
I beg to move, in page 52, line 15, to leave out from the beginning to "is," in line 18.
When this Bill received its Second Reading earlier in the year, I ventured to draw attention to the extraordinarily wide extension given to this concept of "controlled land" by paragraph (b) of the First Schedule, to which this Amendment relates. There is general agreement that the provision whereby apparatus can be laid alongside a street in land which does not involve breaking up the surface of the street, is a generally beneficial one, and we are all agreed that, in the example given by the Minister on Second Reading, when he spoke of the verges of the main roads being used for this purpose, there was a clear advantage in using "controlled land" in that sense, as the site of the apparatus. On the other hand, the possible extension of "controlled land" which results from paragraph (b) in the first part of this Schedule is open to very grave objection.
May I remind the Committee of the provisions of the Town and Country Planning 1970 Act, 1947, to which reference is here made? Under the terms of that Act, the whole of the country must, by the middle of next year, be covered by development plans, which must show areas which the planning authorities consider should be liable to compulsory acquisition for various purposes, one of these being road purposes, which is relevant in this case.
I realise—and I am grateful to the Minister for having courteously drawn my attention to this—that, in order to become "controlled land" under this paragraph, the land concerned must not only be designated for road purposes in one of these development plans, but must also abut upon a street which is a maintainable highway. In practice, that will mean a strip of land running parallel to a maintainable highway which is regarded as being eventually desirable for the widening of the highway. The mere fact that such a strip of land has been so designated in the development plan does not, in my opinion, justify us in treating it as "controlled land" within the meaning of the Schedule. These areas can be designated, redesignated and even redesignated again in the successive quinquennial editions of the town and country plans.
The designation, once approved by the Minister, is subject to only one check, namely, the right of the owner after 12 years, or in the case of agricultural land after eight years, to enforce compulsory acquisition. But there will undoubtedly be throughout the country great tracts of land designated for compulsory acquisition for various purposes, including road purposes, which will not, in fact, be used for those purposes for decades, and, in many cases, will never be used at all, because, in the course of time, the plans will be either changed or scrapped.
Is it right, therefore, that, with that background and simply because a strip of land has been designated in a development plan as the sort of land which it might be desirable to acquire compulsorily some day for road widening, it should be possible for local authorities, merely by serving notices under this paragraph, to bring such land within the definition of controlled land? There will always be uncertainty, because local authorities and statutory undertakers will always be in doubt about what sort of weight they are to attach to development plans, and what degree of likelihood there is of the land being actually required for 1971 the purpose for which it is designated. In the second place, the amount of unnecessary and abortive expenditure will be greatly multiplied.
I think the object in view will be achieved by the Amendment which I am proposing, which is to leave out the first part of this paragraph, and to restrict the conception of "controlled land" under this heading to land the compulsory acquisition of which has actually been authorised, and which is within measurable distance of being used for these purposes. In these cases, the whole object is achieved. It is only when that authorisation has been given that we are justified in allowing the street authority to treat the designated land as controlled land. It is only then that there is no serious risk of abortive expenditure due to subsequent changes being made.
It may be argued: "Supposing that the land was never acquired, what harm would be done if pipes had been laid parallel to the road instead of under the road? Is it not a good thing, even supposing that the land remains agricultural land for 50 or 100 years? What is the harm in having laid the apparatus in a field inside a hedge instead of underneath the road?" That, I think, misses the point. In any case, we are only dealing with land which is designated for acquisition for road purposes.
In drafting this Schedule the Government have regarded the fact that this land is, some day, to be part of a road as the sole justification for treating it in the meantime as "controlled land." I submit, therefore, that the Government's object is attained and that the dangers which I have outlined are avoided if "controlled land" is restricted to land for which compulsory acquisition for road purposes has already been authorised.
§ 8.0 p.m.
§ Mr. Manningham-Buller
I entirely agree with all my hon. Friend has said in moving this Amendment and I do not wish to repeat anything that he has said on that point. The First Schedule contains one of the most important elements in this Bill. It is here that we find the definition of "controlled land" and the procedure whereby authority can be given for the laying of pipes and other undertakers' work off the street in land 1972 where, apart from this Bill, there is at present no right to lay them.
Therefore, by this First Schedule, as I understand it, we are creating a fresh power—something that does not exist already—in the hands of the undertakers, at the request of the highway authorities it may be, of in one sense invading private property and the rights of private occupiers. Clause 1 (1) of the Bill makes it quite clear that the land must abut a street which is eithera maintainable highway or is prospectively a maintainable highway ….It is also made quite clear that the land may be controlledin whatsoever use the land is for the time being, not excepting use as or as part of a garden or pleasure ground or the curtilage of a building ….If I understand this Bill correctly, it is not right to regard the verges of a highway as "controlled land" because the ordinary grass verge of a highway between the two fences is already part of the highway. Therefore, these powers with regard to "controlled land" are not necessary for laying pipes and sewers on the grass verges as is so frequently and so rightly done today. But this power of laying in "controlled land" will obviously not be exercised where there are those grass verges and where it is not intended to make a substantial extension of the width of the highway. A more likely place would appear to me to be in the suburbs of our big towns and not so much in the open country where usually there is a wide grass verge. It is more likely to be in the suburbs and the approaches to the big towns where television cables and water mains are brought in, such as in Watling Street.
What is going to be the "controlled land" there? It must surely be the front gardens of the suburban houses. Power is expressly taken to use that land however it is being used for the time being. It may be that the land was designated under a plan made by a planning authority as land required for road purposes; that we have as controlled land, land through which a pipe may be laid, land upon which there is actually a dwelling-house. But, notwithstanding the fact that there is a dwelling-house upon that land, power is taken by this Schedule to bore underneath the house and to lay pipes and other undertakers' works under 1973 the house. While I agree that power must be taken to lay in "controlled land," it is a power over the exercise of which one ought obviously to take very great care, and we in this House of Commons have a duty to see that no greater power than necessary is taken.
I understand that a working party has been considering this matter, a working party on which were representatives of the Ministry, the highway authorities and the statutory undertakers. I do not think that on that working party were any representatives of the private occupiers, the people who will be living alongside these streets and whose amenities will be affected by someone coming along and digging up the rock garden in front of the house because they wish to put down a drain. When the rock garden is put back and is again looking very nice, along will come someone else and up will come the rock garden once more.
It may be that in certain circumstances that sort of thing should happen, but we ought not to give that right of interfering with other people's amenities in such situations solely on the strength of the land being designated under Section 5 (2, b) of the Town and Country Planning Act. I do not believe that the designation procedure is adequate for giving proper opportunities for objection by the owners and occupiers of the small dwelling-houses most likely to be affected.
I believe I am right in reading this Schedule to mean that unless the occupier or owner of the land objects to designation, and succeeds in his objection, all power of objection to the land being authorised for use as "controlled land" will be gone. That may be satisfactory to one or other association, or to a member of a working party who think that Members of Parliament exist to carry out the conclusions of working parties. Although that may be satisfactory to that member of the working party it does not seem to me to be right so far as the individual is concerned.
I hope I have made my view clear. I think that what my hon. Friend has sought to leave out should be left out, and I am sure that all that is required to be done can be done under Section 33, paragraph (c) of the Public Health Act, 1935. People ordinarily know where lines are relating to their properties. They can make objections. They usually get to 1974 know of it very quickly, but I doubt very much whether the ordinary occupant of a small house on the edge of one of our cities will ever be informed in time that his land has been designated as land subject to compulsory acquisition by the street authority for road purposes; and if he fails to be aware of that fact in time, then, I fear, the consequence may be that, without his having any opportunity of objecting, he will find the amenities of his house substantially interfered with.
§ Mr. Barnes
In considering this proposal I think we want to be clear first of all what constitutes "controlled land" under the First Schedule, and the facilities or the opportunities that highway authorities have of achieving their purpose. First of all, the highway authorities can buy the necessary land for their purpose alongside the road, or they can designate that, under Section 5 of the Town and Country Planning Act, 1947, as land subject to compulsory acquisition by the street authority. I take it that this is the part that the hon. and learned Gentleman is objecting to. Or they can take steps under Section 33 of the Public Health Act, 1925.
I do not dispute that, from the point of view of the purposes of a highway authority, the first and the third of the proposals which I have referred to can still, to a very large extent, meet the purposes which I have under this Bill, but I feel that I must submit to the Committee the very strong views that the highway authorities have on a proposal of this kind. They make me very reluctant to accept this Amendment.
I should like the Committee, as it ought, to give full consideration to the views and the case of the highway authorities. Of course, it is very easy to dismiss the views of a highway authority in dealing with matters of this kind under the blanket provisions—if that term is preferred—of the Town and Country Planning Act. Nevertheless, administratively, undoubtedly, it proves to be of very great convenience to the highway authorities, and, I believe, is a much less expensive process, and the tendency, at least in recent years, has been for them to turn more and more to this procedure, and less and less to Section 33 of the Public Health Act, 1925. Therefore, I think we must face the fact that if the 1975 Committee does delete this provision it, to that extent, would reverse a process that has been developing lately.
It appears to me that the Amendment would seriously weaken the appeal of the First Schedule to the highway authorities. If that is the case, I have to face the fact that they may not use the provisions for the purpose of the First Schedule to the extent that I would wish them to do. In my view it is very important that wherever it is possible—I do not mean to the extent of causing considerable and wholesale inconvenience to residents on the site of a highway—but where it is practicable it is very desirable that pipes and mains and apparatus as much as possible should be laid along the grass verges of the controlled land rather than that ther should be digging up of the highway with the inconvenience it would cause to traffic. I should very much regret it if we did anything in this Bill that would weaken the highway authorities' progress in this direction.
Therefore, I feel inclined to ask hon. Gentlemen to see if they could avoid pressing this Amendment. I quite clearly recognise that I have succeeded in getting this Bill to the present stage by a policy of give and take and compromise, and I should not like, in the final stages of the Bill, to develop a conflict in this Committee that even now could endanger my getting the Bill. I realise that we have been asking a lot from the Committee in asking it to pass this stage of the Bill, when there are so many Amendments, comparatively late in the Session, and to take the Report and Third Reading later in this week. Moreover, of course, the Amendments that have been made will have to go back to another place. I am very reluctant to lose the Bill, having put so much time and effort into it, and I would appeal to hon. Gentlemen to forego their Amendment, after hearing the views that I have put to them.
§ 8.15 p.m.
§ Mr. Higgs
We have had thrust upon us the necessity in this matter of considering the responsibility and needs of the highway authorities. I am not one to detract from the importance of highway authorities and their activities, but I think it does behove us to bear in mind that, whether in fact they exercise them or not, the highway authorities, under this part 1976 of this Schedule, would have the power to lay, or to cause to be laid, any new mains along suburban property, as my hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller) pictured, and laying them straight down a row of front gardens. Highway authorities may be important, but they, as we, serve the people who live in those houses and dig in those front gardens; and I think we ought to consider very seriously indeed before we give them unlimited power to take that course.
We are giving our attention at the moment very particularly to that part of the Schedule which relates to the designated land under the Town and Country Planning Act. We do not know, of course, how long the state of building up the plans will go on, but I, at least, can speak of the conurbation we have to live in around Birmingham, and I can tell the Committee that the planners are changing their ideas about where main roads should go from week to week. That means that for one project there may be several roads designated for widening. One knows in many cases that at least half the plans that now exist on paper will never be carried out. The only right of the owner and occupier of the house with the front garden is to wait 10 years—I think it is—before he says to the highway authority, "This plan has been on paper for 10 years. You must either put it into effect now or tear it up."
This Bill will not only be giving rather more power to the highway authorities and to those who want to lay their mains: it may also put the highway authorities themselves in a dilemma because they may have to use these powers in the future before their plans are crystallised It might help were we to know to what extent there do exist cases which could be dealt with only under paragraph (b). How many roads are there where it would be nice if we could lay electric mains under front gardens? How many roads are there where these front gardens are designated and could be immediately appropriated by the highway authority or under paragraph (c) for the laying of improvement lines? I have practised professionally in just the sort of place where this thing arises, and my experience is that in the great majority of cases it is already there under the improvement line, and that it is not needed under the Town and Country Planning Act.
1977 As my hon. Friend said, we ought to face up to what we are doing. We are giving these people the right to go straight down the street in that way, using people's front gardens, the car parks of public houses, and other sacred land of that sort. We ought to face up to the fact that we are doing that, and to realise that we are giving a very big power to highway authorities, because I rather doubt whether the game is worth the candle.
§ Mr. Manningham-Buller
The Minister has made an appeal to us to reconsider our attitude on this matter. I must inform him that we gave a great deal of thought to it before we put down this Amendment. We were aware of the views of which he has informed us of the highway authorities as expressed by a certain association, or representatives of a certain association—one does not quite know to what extent those are the views of the constituent bodies. In spite of that I must tell the right hon. Gentleman that I fear that we must press him upon this Amendment, because, although we know that there has been this working party going into these intricate provisions, we feel that in this regard the highway authorities have been looking at the matter a little bit too much from the angle of the highway authorities. We think that all the power a highway authority really requires would be—
§ Mr. Barnes
I thought that I would try persuasiveness to see whether I could convince the hon. and learned Gentleman and his hon. Friends to forgo this Amendment. However, as I have indicated, it would be a thousand pities if we did not get this Bill now. We must co-operate on this. I realise that this is a point of substance, and therefore, as I have had a good deal of help this evening, I am prepared to accept this Amendment. In some ways I think that there is a case against it, but the whole Bill has been brought to its present stage by a process of give and take, and as that would be my decision in the final resort, rather than imperil the Bill I think it is better for me to say so and not to lengthen this Debate unduly.
§ Mr. Powell
As I moved this Amendment which the Minister has so graciously accepted, I should like to express our recognition of the way in which he has met us, and also to say that I do not really think that by accepting this Amendment he is losing any useful power 1978 either for himself or for the highway authorities. He referred to the deletion of the provision, but in fact for all practical purposes the provision remains, and wherever there is a case for compulsory acquisition the land can be used as controlled land. I therefore feel sure that in time to come the Minister will have no regrets at the action he has taken.
§ Amendment agreed to.
Further Amendment made: In page 52, line 38, at end insert:
and references in this Act to works executed in controlled land shall extend to works executed in exercise of that right."—[Mr. Barnes.]
§ Mr. Manningham-Buller
I beg to move, in page 54, line 28, after "authority" to insert:or, upon appeal duly made by the undertakers, to the Minister.This is more or less a drafting improvement. It merely gives the undertakers the right to appeal to the Minister against a determination. I think the Attorney-General and the Minister would think that the case to which it applies such a right of appeal should exist for the undertakers.
§ The Attorney-General
We would have thought that this was not necessary. It is a little more than drafting. The undertakers can only be called upon to pay under paragraph 6 (2) where they have themselves, in their own interests, asked the highway authority to make the land available. All that can be settled by agreement, and if the undertakers do not like the terms on which it is proposed to make the land available, they need not accept them. We think that they are fully protected, and that the Amendment would complicate matters unnecessarily by providing for an additional appeal to the Minister.
§ Mr. Manningham-Buller
I am grateful to the right hon. and learned Gentleman for that explanation, and I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Powell
I beg to move, in page 54, line 30, to leave out paragraph 7.
This paragraph is a very curious and, it would appear, uncalled-for paragraph. Its effect is that, if by obliging undertakers to lay their apparatus not in a street but in controlled land the street authority thereby saves the undertakers 1979 money, the undertakers have to pay to the street authority the amount they have saved. This is a very lucrative transaction for the street authority, because the street authority have not been put to any expense themselves in obliging the undertakers to use the controlled land instead of the street. I imagine that it will be a frequent result, since presumably the laying of apparatus in controlled land will on the whole be cheaper, and there will not be the same work necessary either in breaking up or in the reinstatement of a road surface. The effect of this paragraph, as it would appear, is to present an unearned income to the street authorities who are fortunate enough to have ample resources in potential controlled land. Perhaps this is not the intention or even the effect of the paragraph. If it is not, perhaps the Government will explain what its effect is.
§ The Attorney-General
I quite agree that in the way the hon. Gentleman has put it the matter does sound a bit queer, but it is one of the provisions which was negotiated in the way the hon. Member for Lewisham, North (Sir A. Hudson), indicated—and negotiated most carefully between the authorities concerned. It is a question of gaining on the swings and losing on the roundabouts, as it was in regard to other provisions in the Bill.
Where a highway authority directs the undertakers to use controlled land, the highway authority has to pay the extra cost if extra cost is involved. If, on the other hand, the result of the direction is to save money, it was thought an appropriate quid pro quo for the undertakers to pay the saving to the highway authority. There was firm agreement about this between the local authorities and the different undertakers. It provides an important protection for the undertakers, taking the thing as a whole, because it ensures that the highway authorities will not exercise their power to compel the undertaker to put his apparatus in controlled land capriciously, since if there is additional cost the highway authority will be called upon to bear it.
The converse case is not often likely to arise. Where savings result from the decision of the highway authority and the apparatus goes into the controlled land, 1980 it was thought both by the highway authorities and by the undertakers who were the ones primarily concerned to be a not unfair quid pro quo. If one put it the other way, and relieved the undertakers of their liability to pay the saving over to the highway authority, they would be getting the best of both worlds; they would be getting payment if there was an additional expense and be saving money in the other case. I hope that the hon. Gentleman, in this case as in the others where the matter was the subject of a firm agreement between the interested parties and does not involve any general public interest, will think it right that the Clause should remain as it is.
§ Mr. Powell
I am not anxious to disturb provisions which arise upon agreement between the parties mainly interested, and therefore, although I am very far from thinking that the quid is actually a pro quo in this particular case, or that one process is logically the converse of the other, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Barnes
I beg to move, in page 55, line 5, to leave out from beginning, to "paragraph," in line 6, and to insert—ceases to be within the definition of controlled land contained in.I think that this Amendment and the following Amendment in line 14 might be taken together.
The first is a drafting Amendment to meet the requirements of the County Council's Association. With regard to the second Amendment, it is not intended, when the land ceases to be controlled land for the purposes of the Bill because a building is erected upon it, that it should not be subject to the same saving for the right of undertakers as is contained in the proviso to sub-paragraph (1) of paragraph 1. The Amendment makes that clear.
§ Amendment agreed to.
Further Amendment made: In line 14, at end insert—
Provided that (as respects any land ceasing to be controlled land under sub-paragraph (2) of paragraph 1 of this Schedule by reason of the placing of a building, structure or erection in controlled land after apparatus has been placed in it) this sub-paragraph shall have effect subject to the like saving for the right of undertakers as is contained in the proviso to the said sub-paragraph (2).
§ Schedule, as amended, agreed to.
§ Second Schedule agreed to.