Clause 41.—(CROWN LAND.) (Hansard, 16 June 1958)

§ Mr. Maudling
I beg to move, in page 44, line 10 at the end to insert: Provided that nothing in this section shall affect the validity or operation of an order, or the exercise of any power, as against any person having, in or over the land in question, any interest or right other than a Crown or Duchy interest. Under Clause 41 (2), compulsory powers cannot be used against land in which there is a Crown or Duchy interest except with the consent of the appropriate Government authority. It has occurred to us that the case may occur where there is a Crown interest in land comprised in a compulsory rights order, and an interest of which the Board was unaware. It does not seem reasonable that this fortuitous circumstance should enable the owner of some private interest to claim that a compulsory rights order is not valid against him because it can be proved that the appropriate Crown authority has not consented. This new proviso prevents such a private owner of land from doing 778 that, and I therefore think that this is a reasonable Amendment.

§ Mr. Speir
Perhaps the Paymaster-General could say a word about the effect of this Amendment on dedicated woodlands. I understand that they will be covered by this and the next Amendment. Dedicated land is land which the owner has covenanted with the Forestry Commission not to use for any other purpose except that of growing timber. I understand that the Bill does not exempt dedicated woodlands from a C.R.O., but that it can be made subject to a C.R.O. provided that the Forestry Commission agree to such procedure.
It seems to me that the position might arise in which the owner who has dedicated his woodlands would be opposed to the making of a C.R.O., whereas the Ministry of Agriculture, acting for the Forestry Commission, might agree to a C.R.O. I wonder who would have the final say in such a situation?

§ Mr. Maudling
I think that that point will probably arise more conveniently on the next Amendment, when I shall be glad to answer it.

§ Mr. Maudling
I beg to move, in page 44, line 43, at the end to insert: (5) The preceding provisions of this section shall apply in relation to land which is subject to a right restrictive of the use thereof, being a right the benefit of which is annexed to land in which there is a Crown or Duchy interest, or (not being so annexed) belongs to Her Majesty in right of the Crown or of the Duchy of Lancaster, or belongs to the Duchy of Cornwall, or belongs to a government department, or is held in trust for Her Majesty for the purposes of a government department, as those provisions apply in relation to land in which there is a Crown or Duchy interest: Provided that those provisions shall so apply with the necessary modifications, and, in particular, as if the proviso to subsection (1) of this section were omitted, and, in paragraphs (a) to (d) of the last preceding subsection, any reference to land belonging as therein mentioned were a reference to a right the benefit of which belongs, or is annexed to land belonging, as therein mentioned. I can now deal with the point made by my hon. Friend the Member for Hexham (Mr. Speir), on the question of forestry dedication covenants. There was some discussion on this in Standing Committee, when my hon. Friend the Parliamentary Secretary said that forestry dedication covenants gave the grant of an interest in 779 the land and that, therefore, under Clause 41, a compulsory rights order could not be made on land subject to a covenant, except with the consent of the Forestry Commission.
Since my hon. Friend was advised to that effect, we have given some further consideration to the subject, and further learned advice indicates that there is some doubt about it; that while forestry dedication covenants give the Forestry Commission a restrictive right over land, they do not necessarily give it an interest in the land. It is not clear from Clause 41 as it stands whether that prevents the Board from over-riding restrictive rights held by the Crown, if those rights do not constitute an interest.
It is obviously undesirable that, quite apart from the rights of private owners, the Board should be able to over-ride the restrictive rights of the Crown, so that the effect of the Amendment is to extend Clause 41 to cover restrictive rights over, as well as interests in land. This, of course, would mean—and this is the answer to my hon. Friend—that a compulsory rights order could not be made against land over which the Crown has a restrictive right, except with the consent of the appropriate Crown authority. In the case of forestry dedication covenants, this would be the Forestry Commission. The effect of the Amendment would be that the Forestry Commission would be in a position to say "No", but not the owner of the dedicated woodlands.
That was the position under the Bill as it was, and the effect of the Amendment is not to change that substantive position but to clear up the legal point, over the definition of which some doubt has arisen. The effect is really to make the position as we actually understood it to be when the Bill was passing through Standing Committee.