HC Deb 29 July 1958 vol 592 cc1200-14

Lords Amendments: In page 79, line 18, leave out from "compensation" to end of line 24 and insert: is not the person who was entitled to occupy the holding on the operative date (in this paragraph referred to as 'the original occupier') and is not a person who has become entitled to the relevant interest in the holding—

  1. (a) on or after the death of the original occupier, in accordance with the disposition of the original occupier's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, or
  2. (b) under an agreement which was made for valuable consideration by the person entitled to the compensation and was in force immediately before the operative date, or under a disposition creating or transferring the relevant interest in the holding in pursuance of such an agreement."

Sir I. Horobin

I beg to move, That this House doth agree with the Lords in the said Amendment.

This and the following Amendment go together and merely correct some technical defects in the wording relating to loss of profits compensation. There is no question of substance in them. They merely make the technical provisions rather clearer.

Question put and agreed to.

Subsequent Lords Amendment agreed to: In line 27, at end insert: (2) In this paragraph 'the relevant interest', in relation to a person entitled to compensation for any year in respect of a holding, means the interest in or right over the holding by virtue of which he is entitled to that compensation; 'will' includes a codicil; and 'disposition', where the reference is to a disposition creating or transferring an interest, does not include any provision contained in a will, but, with that exception, includes any conveyance, assignment, lease or other assurance.

Lords Amendment: In page 80, line 31, at end insert: ("(2) For the purposes of this paragraph no account shall be taken of any opportunities of which the person in question has not availed himself (notwithstanding that they were opportunities of the kind described in the preceding sub-paragraph) in so far as they would have involved his engaging (whether as an employed person or otherwise) in a substantially different occupation from that in which he was engaged during the period preceding the operative date of the order. (3) Paragraph (a) of subsection (8) of section nineteen of this Act, and the last preceding paragraph, shall apply for the purposes of this paragraph as they apply for the purposes of that section.")

Sir I. Horobin

I beg to move, That this House doth agree with the Lords in the said Amendment.

This is a more important Amendment which I think will be generally acceptable. It deals with the thorny subject of litigation. It was felt in another place, and, indeed, the point was raised in general terms in Committee, that while we should follow the general law that a man who is receiving compensation should mitigate the loss as far as possible, it would be quite unreasonable that farmers should be told, "You ought to have taken up employment in a factory or something of that kind," and, therefore, should lose some of their compensation. This Amendment will protect them against that. Where they have mitigated the loss either by interest on compensation received or by taking another farming job, it is, of course, reasonable under the general provisions of the Bill that their compensation should be mitigated.

This Amendment protects a man from being told, in effect, "You are a farmer. Your land has been taken and you ought to have become a waiter in Blackpool or something of that sort." I think most people would feel that this is a reasonable and proper safeguard to people who in any case have suffered very extreme inconvenience in having their land taken. I do not think I need go into the exact details of it, but I think that the principle will be generally acceptable.

Mr. MacDermot

I confess that I do not share the Minister's enthusiasm for the Amendment. It is a departure from the accepted principles of compensation as they apply in a very wide sphere over many different kinds of Acts. It is a general principle of our law that for any kind of compensation which a person is to receive he has a duty, as the courts put it, to mitigate his damages. It applies in ordinary common law to persons claiming damage for personal injuries, in running-down accidents, as a result of motor accidents, or whatever it may be. It applies to the general law of compensation for compulsory purchase and in different spheres.

If the person suffers damage and is entitled to be indemnified for that damage it is always accepted that he must take reasonable steps to mitigate the damage. In any particular case it is for the court to decide, having regard to all the circumstances, whether a measure which would be open to the man to mitigate his damages is one which can reasonably be demanded of him. It has not been thought wise or necessary to try to define what would be a reasonable step or to exclude from consideration some possible measures as being in all circumstances unreasonable.

It is that which this Amendment tries to do, and, I think unwisely. What it tries to say, and, indeed, does say, is that no account at all shall be taken in determining what reasonable use the person might make, in order to mitigate loss, of any opportunities available to him, but of which he does not avail himself if they involve him in engaging in a substantially different occupation.

5.30 p.m.

The Parliamentary Secretary, to support his argument, gave some rather fanciful examples, for instance, that a farmer might be asked to go to work as a waiter at Blackpool. I do not imagine that in any circumstances any court would say that was reasonable. Let me give an example which may perhaps be a little nearer the point. I understand that what almost invariably happens when, because opencast coal operations come about, anyone in the locality loses his employment, is that he is able to obtain other employment at least as lucrative, if not more so, from the Coal Board in those opencast coal operations.

The ordinary agricultural labourer, who may be a tractor driver, for instance, if there is not other agricultural work available for him in the neighbourhood, will get work driving a bulldozer, or whatever the vehicle may be, for the Coal Board. Whether in any case in particular it would be reasonable to ask a farmer to do the same thing as his labourers would do, namely, obtain employment from the Board, is something which would have to be looked at in all the circumstances of the case.

Clearly, if one were dealing with an elderly man who had no mechanical skills and who would be out of his depth, as it were, in any employment which might be offered to him, or if that employment were to involve his working in any way which he would find highly objectionable and different from anything to which he had been accustomed all his life, knowing the general approach of the courts I feel quite confident that the courts would say, "We do not think it is reasonable to demand of him that he should accept that employment."

Another and a younger man, perhaps with a smallholding, who is unable to continue his work as a result of opencast coal mining in the neighbourhood, may be offered a type of job well within his capacity. Is he to be entitled, as a result of this Lords Amendment, just to sit down and twiddle his thumbs and say, "No. I am not taking any work with the Coal Board, because that is substantially different employment from ordinary agricultural work. You are preventing me from earning my profit of £800 or £1,000 a year and you will pay me the full annual loss"? Is he just to sit at home and do nothing?

That is not an extreme, fanciful example. That would be quite possible because of this Lords Amendment. I feel that the people who supported the Amendment, who urged it and obtained it, were allowing their imaginations to run away with them in thinking that the courts or authorities would be much more unreasonable than in fact they will be in giving effect to the ordinary provisions about reasonableness in the law of mitigation, and I feel that this Lords Amendment might be taken advantage of in a way which, I feel sure, no one in this House would wish.

Sir I. Horobin

In, if I may say so, a cold-blooded, legal sense, there is an enormous amount to be said for what the hon. Member for Lewisham, North (Mr. MacDermot) has been putting to the House, but I think that in this case we have to be a little human. Let us take the actual situation he is putting. We are not dealing, as he says, with a labourer, but a farmer, an occupier. The Coal Board says to him, "We are compulsorily going to take away the place where you live, the place where your wife and children live. We are going to make life nearly intolerable for you for several years. But you can drive a tractor. We are not going to pay you much compensation because you can drive the tractor which is going to tear your farm to pieces."

In law that is a logical proceeding by the Board, and I am glad to have it from the hon. Member, but surely in this matter we can be a little human. I think that in these circumstances it would be pretty cruel to tell people, "I am not going to pay you any compensation, or not nearly as much, because you can help to do the damage to your land." Logically there is an enormous lot to be said for what the hon. Member says.

He is perfectly right, as always, in saying that this is the general law of the land, but many of us have felt that this opencast coal business is exceptional, and on balance, while, of course, for instance, the cash the man may have at the bank ought to be taken into account, we feel it would be unfair to the man to reduce the compensation we pay him for making his life a misery if he does not himself help to make his own life a misery. I think that the Lords Amendment should be supported.

Question put and agreed to.

Lords Amendment: In page 80, line 36, after "any" insert "improvements carried out on".

Sir I. Horobin

I beg to move, That this House doth agree with the Lords in the said Amendment.

This and the two following Lords Amendments all deal with the same point, which is quite a small one. They deal with tenant right to compensation and the question is whether that should be capital or income. For Income Tax purposes tenant right compensation is treated as annual income, and it therefore does not seem quite fair, as was provided in the Bill as originally drafted, to treat it as a capital payment when we work out mitigation of the annual loss to profits compensation. I think that if one branch, as it were, of the Government treats it as income another branch should not treat it as capital. I will not say that it does not occur. Anything is possible in tax law. However, I think most people will feel that this protection to the occupier is fair and equitable.

Question put and agreed to.

Subsequent Lords Amendments agreed to: In line 36, after "holding" insert: being improvements of a description specified in Part I or Part VI of the Fourth Schedule to this Act,".

In page 81, line 6, at end insert: (3) In this paragraph any reference to Part I or Part VI of the Fourth Schedule to this Act includes a reference to that Part as varied by any order made under section twenty-six or section twenty-eight of this Act.

Lords Amendment: In page 81, line 32, leave out from beginning to "in" in line 33 and insert: subsections (2) to (4) of section eighteen of this Act shall not apply, and for the purposes of that section, and for the purposes of paragraph (b) of subsection (1) of section nineteen of this Act and (where applicable) for the purposes of subsection (3) of the said section nineteen, the annual value of the land for any year shall be determined".

Sir I. Horobin

I beg to move, That this House doth agree with the Lords in the said Amendment.

This Lords Amendment and the next two all deal with the same point. They all deal with the rather awkward question of land, such as building land, which is not normally let from year to year and therefore becomes difficult to calculate for compensation. We propose, under these Lords Amendments, to make regulations dealing with this special case. The Regulations originally were intended to be made on the basis that we just take out the existing provisions altogether and put in new ones for this class of land, but in doing the preliminary work of drafting the Regulations it has been found it can be done much more conveniently by incorporating a notional value for that purpose. The Regulations will in due course come before Parliament. These Lords Amendments enable that to be done. This is purely a technical point dealing with a special class of land which cannot come under the normal procedure.

Question put and agreed to.

Subsequent Lords Amendments agreed to: In line 36, leave out sub-paragraphs (2) and (3).

In page 82, line 16, leave out "section seventeen or section eighteen" and insert: any of, the provisions of sections seventeen to nineteen.

In line 17, leave out "section" and insert "provision".

Lords Amendment: In page 82, line 18, at end insert: 13.—(1) Where any land to which section thirty-two of this Act applies in relation to a compulsory rights order is—

  1. (a) land which, immediately before the operative date of the order, was used for a purpose for which land would not normally be let from rear to year, or
  2. (b) land in respect of which, immediately before the operative date, there was in force permission granted tinder Part III of the Act of 1947 for the land to be used for such a purpose,
subsection (3) of that section shall not apply, and for the purposes of subsection (2) of that section annual value shall be determined in accordance with regulations made by the Minister under this paragraph. (2) Sub-paragraph (4) of the last preceding paragraph shall apply for the purposes of this paragraph as it applies for the purposes of that paragraph.

Sir I. Horobin

I beg to move, That this House doth agree with the Lords in the said Amendment.

This is another which arises out of Clause 32 and deals with a point similar to that which we have just been discussing, namely, land which is not normally let from year to year. This is a purely machinery provision.

Question put and agreed to.

Lords Amendment: In page 82, line 30, leave out from beginning to end of line 4 on page 83, and insert:

"Woodlands

14. The Minister may by regulations make provision for modifying or adapting any of the provisions of this Act relating to compensation in respect of compulsory rights orders in their application to land which, immediately before the operative date of such an order, or the date of entry thereunder, was used as woodlands, or as woodlands of a particular description specified in the regulations."

Sir I. Horobin

I beg to move, That this House doth agree with the Lords in the said Amendment.

This merely gives power to the Minister to make Regulations dealing with compensation for woodlands. A number of questions have been raised about compensation for woodlands. They have been raised here and in another place.

They obviously do not fit very conveniently into the normal provisions. Woodlands take a long time to grow. Very elaborate provisions could have been put into the Bill. Indeed, some people have suggested that a lump payment should be made in respect of woodlands when the Board gives up possession, but it has been felt that the only way to make satisfactory provision for this special and rather awkward case is to deal with it by regulations. In drafting those regulations, careful consideration will be given to a number of points made both in this House and in another place. Question put and agreed to.

Lords Amendment: In page 84, line 27, at end insert:

"Restricted lettings, and easements and similar rights

18A. This paragraph applies to the following rights, that is to say,—

  1. (a) any right conferred by a letting of land, or a licence to occupy land, in pursuance 1208 of an agreement made (whether the agreement expressly so provides or not) in contemplation of the use of land only for grazing or mowing during some specified period of the year;
  2. (b) any easement or similar right over land.

18B. For the purposes of the following provisions of this Act, that is to say, subsections (2) and (3) of section seventeen, subsection (2) of section twenty-one, subsection (1) of section twenty-nine, and the provisions of subsection (3) of section seventeen as applied by subsection (2) of section twenty-nine, any right to which the last preceding paragraph applies shall be disregarded; and, in relation to any land which is subject to any such right, those provisions shall apply as if that right had not been conferred, reserved or otherwise acquired, as the case may be.

18C.—(1) Where in accordance with the provisions of section seventeen of this Act (as modified by the last preceding paragraph) any land constitutes a holding to which that section applies, and, during any year far which compensation is payable in respect of that holding by virtue of that section, any land comprised in the holding is subject to any right to which paragraph 18A of this Schedule applies, the provisions of the next following sub-paragraph shall have effect as to the assessment under section nineteen of this Act of profit or loss for that year in respect of that holding.

(2) Any profit or loss required to be so assessed under subsection (1) of section nineteen of this Act, and (if the remainder of the holding referred to in subsection (3) of that section includes any of the land which is subject to the right in question) any profit or loss required to be so assessed for that year under subsection (3) of that section, shall be assessed on the basis of an occupation of the holding, or of the remainder of the holding, as the case may be,—

  1. (a) subject to that right, in so far as it would (if the compulsory rights order had not been made) have been exercisable during the year in question in relation to land comprised in the holding, or in the remainder of the holding, as the case may be, but
  2. (b) with the benefit of any rent which (if the order had not been made) would have been payable for that year in respect of the exercise of that right in relation to any such land, and
  3. (c) in all other respects, on the terms and in the circumstances specified in subsection (1) or subsection (3) of that section, as the case may be.

(3) For the purposes of the last preceding subparagraph it shall be assumed that the manner and extent of the exercise of the right in question, during the year for which the profit or loss is required to be assessed, is such as it might reasonably have been expected to be during that year if the compulsory rights order had not been made.

(4) Where the preceding provisions of this paragraph have effect in relation to the assessment of compensation for any year in accordance with section nineteen of this Act, and in respect of the right in question, in so far as it relates to land comprised in the holding, any rent is payable for that year (notwithstanding the compulsory rights order) to the person entitled to that compensation, the amount of that compensation (calculated apart from this sub-paragraph) shall be reduced by the amount of that rent.

(5) In the preceding provisions of this paragraph any reference to section seventeen of this Act includes a reference to section twenty-nine of this Act, and any reference to section nineteen of this Act includes a reference to the provisions of that section as applied by section twenty-nine of this Act.

(6) In this paragraph "rent" includes any sums payable in respect of the exercise of a right to which paragraph 18A of this Schedule applies.

18D. Where the whole or part of the land comprised in a compulsory rights order is subject to any such right as is mentioned in sub-paragraph (a) of paragraph 18A of this Schedule, and in any year in which that right subsists, being any such year as is mentioned in subsection (2) of section thirty-one of this Act, the exercise of that right is prevented or injuriously affected by reason of the order or of anything done in the exercise of rights conferred by the order, the said subsection (2) shall have effect in relation to that right as if it were an easement to which that section applies.

18E. Any agreement for the letting a land or the grant of a licence in respect of land, where, before the agreement was entered into, the letting or grant was approved by the Minister of Agriculture, Fisheries and Food for the purposes of section two of the Act of 1948 (which relates to the effect of certain lettings and licences to occupy agricultural land, but excepts lettings and licences approved by the said Minister from the operation of the section) shall be treated for the purposes of section seventeen of this Act as conferring a right to occupy the land to which the agreement relates, if apart from this paragraph it would not be treated as conferring such a right.

18F. Where the whole or part of a holding to which section seventeen of this Act applies consists of land occupied under a letting or licence approved by the Minister of Agriculture, Fisheries and Food for the purposes of section two of the Act of 1948, and—

  1. (a) by the agreement under which the land was let or the licence granted a right to use the land for specified purposes was reserved to the person letting the land or granting the licence, as the case may be;
  2. (b) the exercise of that right is prevented or injuriously affected by reason of the compulsory rights order or of anything done in the exercise of rights conferred by the order; and
  3. (c) that right does not constitute an easement or similar right.
subsection (2) of section thirty-one of this Act shall have effect in relation to that right as if it were an easement to which that section applies."

Sir I. Horobin

I beg to move, That this House doth agree with the Lords in the said Amendment.

I am afraid that this is a rather long and complicated Amendment, though it deals with some fairly simple points. First of all, it eliminates the possibility of double payment of compensation. When land is considered for the purpose of paying annual compensation to an occupier, the valuation is made on the assumption that the holding is free from encumbrances. If somebody is entitled to an easement or a right over that part of the holding he gets compensation too. Therefore, it is necessary to ensure that both are not paid for the same damage.

Secondly, part of the land may be let under a mowing or grazing licence. Under the Bill as drafted the whole of the annual compensation goes to the occupier and the licensee gets nothing. That does not seem fair. We have put that right and given the licensee his proper compensation. I understand, and I confess I merely take this from my advisers, that there are short-term agreements approved by the Minister of Agriculture in some of which the owner retains certain rights to use the land. It is fair if he loses those rights that he should be indemnified, and we have assimilated those rights so that they come under the general provision for compensation for damage to easements or similar rights. These points are exceptions but there are cases of genuine loss and we have attempted to ensure that fair compensation is paid.

Question put and agreed to.

Lords Amendment: In page 85, line 29, leave out from "to" to "year" in line 30 and insert: so much of the annual value for that year, or of the amount in question assessed by reference to that year, as (on a rateable apportionment of that value or amount as between different parts of that year) is properly atributable to that part of that

Sir I. Horobin

I beg to move, That this House doth agree with the Lords in the said Amendment

Here again we have attempted to meet a point raised by the Opposition at an earlier stage. I think that it was the hon. and learned Member for Lewisham, North (Mr. MacDermot), who led for the Opposition, who raised the point about what happens if land is taken just before harvest. At that stage I said that I thought there was no danger that there would be unreasonable compensation, but there appears to be some possible doubt. We thought it right to make it quite clear that the occupier will have only a proportionate amount for the period of the first year and will not receive an exceptionally large sum where the land has been taken while he is receiving his year's income out of it by reason of the fact that the harvest has been safely gathered in. I thought that the Bill, as originally drafted, covered the point but it is just as well to make quite sure by means of the Amendment.

Mr. MacDermot

I thank the Parliamentary Secretary for taking the point, which is now well met, and I would remind him that I am not learned.

Question put and agreed to.

Lords Amendment: In page 85, line 36, at end insert: 20A.—(1) Where in the case of land to which section thirty-two of this Act applies in relation to a compulsory rights order, a person is the owner of that land for part, but not the whole, of a year, subsection (2) of that section shall apply as if any reference to a year included a reference to that part of a year. (2) The preceding sub-paragraph shall have effect without prejudice to the operation of sub-paragraph (3) of paragraph 19 of this Schedule, where the said sub-paragraph (3) is applicable; and sub-paragraph (4) of that paragraph shall have effect in relation to the preceding sub-paragraph as it has effect in relation to sub-paragraphs (1) to (3) of that paragraph.

5.45 p.m.

Sir I. Horobin

I beg to move, That this House doth agree with the Lords in the said Amendment.

I apologise to the hon. and unlearned Member for Lewisham, North. This Amendment again arises out of Clause 32. It is purely technical and deals with a case where compensation is payable only for part of the year.

Question put and agreed to.

Lords Amendment: After Amendment last inserted, insert:

"Concurrent compulsory rights orders

20B. The Minister may by regulations make provision for modifying or adapting any of the provisions of this Act relating to compensation in respect of compulsory rights orders in their application to land which—

  1. (a) constitutes or forms part of the land comprised in a compulsory rights order, or, in relation to a compulsory rights order, forms part of a holding to which section seventeen or section twenty-nine of this Act applies, or is land to which section thirty-two of this Act applies, and
  2. (b) at any time after the operative date of that order, and before the end of the period of occupation thereunder, constitutes or forms part of the land comprised in another compulsory rights order, or, in relation to another such order, forms part of a holding to which section seventeen or section twenty-nine of this Act applies, or is land to which section thirty-two of this Act applies."

Sir I. Horobin

I beg to move, That this House doth agree with the Lords in the said Amendment.

The Amendment empowers the Minister to make regulations adapting compensation provisions in odd cases where part of a holding is comprised in one compulsory rights order and another part in another compulsory rights order. It is purely a piece of machinery. Rather awkward matters of detail arise in such a case. The Amendment has nothing to do with going twice over the same land. It deals with that case where one part of a farm happens to be in one area of working and another part in another area. It will be seen that there may be an overlapping of damage and this might produce an extremely complicated problem. The Bill is already sufficiently complicated and it has been thought wise to make this provision by regulation.

Mr. MacDermot

Before we give one of the eight regulation-making powers for which the Minister is asking, I should like to point out that in this Amendment there is no kind of indication of the principles on which the Minister is to make the regulations or of the effect which he will try to achieve by making them. He tells us that a very complicated problem arises, but he does not tell us what he has in mind for solving it. I do not know whether he knows himself or, if he does, whether he can give us any idea of the object that it is hoped to achieve.

Sir I. Horobin

We shall consult all the interests involved and all these regulations will have to be laid and debated. Broadly speaking, the effort will be merely to ensure that nobody fails to be paid at all and that nobody is paid twice. The difficulty arises because in our efforts to assist the occupier, the farm as a unit is the basis of compensation. Therefore, if there is a situation where one part of a farm is taken under a compulsory rights order we have to consider the effect on the whole farm. If another part of a farm is then taken we have again to consider the effect on the whole farm. It is clearly necessary to ensure that payment is not made twice or that there is not some similar unexpected and unreasonable consequence.

Mr. Champion

The hon. Gentleman said that regulations will be laid and debated. Will that be done under the affirmative procedure or under the negative procedure? In the latter case, if objection were taken it would be necessary to pray against the Order.

Sir I. Horobin

I think that it will be the negative procedure.

Mr. Champion

Then we shall have to pray.

Question put and agreed to.

Lords Amendment: In page 86, line 2, after "lease" insert: or order conferring working rights

Sir I. Horobin

I beg to move, That this House doth agree with the Lords in the said Amendment.

This and the next four Amendments again deal with the point about the right to work minerals under the Mines (Working Facilities and Support) Act, 1923, and also with timber felling contracts, to which we have already referred.

Question put and agreed to.

Subsequent Lords Amendments agreed to: In line 3, after second "the" insert "compulsory rights"

In line 3, leave out from "thereof" to "the" in line 5.

In line 9, leave out "timber felling contract" and insert "order conferring working rights"

In line 9, after "the" insert "compulsory rights"

Lords Amendment: In line 15, after "Scotland" insert: for references to Part I of the Fourth Schedule to this Act there shall be substituted references to Part IV of that Schedule, excluding paragraph 21 thereof, and

The Lord Advocate (Mr. W. R. Milligan)

I beg to move, that this House doth agree with the Lords in the said Amendment.

This and the next Amendment are both Scottish adaptations following on the Amendments which have been accepted.

Question put and agreed to.

Subsequent Lords Amendment agreed to: In line 17, at end insert: and for references to an agreement for the letting of land, to the Minister of Agriculture. Fisheries and Food, and to section two of the Act of 1948, there shall be substituted respectively references to a lease, to the Secretary of State, and to section two of the Scottish Act of 1949.