HC Deb 17 April 1962 vol 658 cc307-12
Mr. Hay

I beg to move, in page 11, line 40, to leave out from the beginning to the end of line 7 on page 12.

It might be for the general convenience of the House if at the same time, we discuss the following Amendments, to Clause 14, in page 15, line 28, leave out from "and" to "nothing" in line 29; to Clause 74, in page 81, line 19, to leave out from "that" to "it" in line 21; in line 23, to leave out "that Act" and to insert "the Transport Act, 1947"; and in page 81, leave out lines 26 to 32.

The purpose of these Amendments is to delete two things from the Bill. The first is the declarations which are made in Clauses 11 and 74 that anything that is done in the exercise of the powers conferred on the boards and on the Commission respectively by the provision of these Clauses shall not be invalid on the ground that it is incompatible with their statutory duties.

The second thing which the Amendments do is to delete from the Bill the special protection which is given in Clause 11 (6) and in Clause 74 for Royal palaces and parks. These two things may appear, and indeed are, quite unrelated, but in the case of Clause 11 they are dealt with by the first of the two Amendments. The effect of each of the Amendments I have mentioned is as follows.

6.30 p.m.

The first Amendment deletes Clause 11 (5) and (6) which relate to incompatibility and the protection of Royal palaces respectively as regards development. The second Amendment, in page 15, line 28, is purely consequential and drafting. The third Amendment, in page 81, line 19, corresponds to the first part of the first Amendment and deletes that part of Clause 74 (5) which relates to the incompatibility of development by the Commission.

The next Amendment, in page 81, line 23, is a purely consequential drafting Amendment depending upon the last Amendment I have mentioned. The final Amendment, in page 81, leave oat lines 26 to 32, corresponds to the last part of the first Amendment and deletes Clause 74 (6) which relates to protection for Royal palaces and parks against development by the Commission.

Perhaps I may, as briefly as I can, deal separately with these two matters. As for the doctrine of incompatibility, the background to the proposed deletion of the declarations in Clauses 11 and 74 that developments by the boards and the Commission shall not be invalid on the ground of incompatibility with their statutory duties is that I undertook in Standing Committee on 27th February to consider representations made in the discussion principally by my hon. Friend the Member for Brighton, Kemp-town (Mr. David James) and my hon. Friend the Member for Maidstone (Mr. J. Wells) against these provisions. The main burden of the points which they made was that it would enable inland waterways to be disposed of without ensuring that the buyer would be under an obligation to carry out statutory duties laid on the owner of the undertaking—as regards, for example, matters of navigation, drainage and flood prevention. In my reply I pointed out that the issues involved were somewhat technical. I acknowledged that there was some little doubt about them, and I went on to say that I would seek to amend the Bill at a later stage if it should be apparent that this should be done.

I must tell the House that Clause 11 (5) and Clause 74 were never intended to cover the sort of possibility which my hon. Friends had in mind, but, on consideration, we have appreciated that it may be so interpreted. Therefore, we propose to remove that subsection altogether from that Clause and make the corresponding Amendments. We still have under consideration whether the powers of development and disposal by the boards of land which they clearly no longer need for their statutory purposes, for which it may possibly have been acquired originally by a former railway or canal undertaking, will be capable of being effectively exercised without some further Amendment of Clauses 11, 14 and 74. It is possible that in another place we may be obliged to table further Amendments to put the matter absolutely beyond doubt.

As for the second matter, namely, the protection for Royal palaces and parks, the purpose, as I have already explained, is to delete these particular protections given expressly by the Bill. The protective provisions which we put in the Bill in fact repeat the effect of protective provisions which exist in local railway enactments. We felt that it would be the right and proper thing to do to repeat them in this Bill. However, during discussion in Standing Committee it appeared that the need which we envisaged for these provisions was not quite so strong and apparent as we thought. Certainly some hon. Members opposite, particularly the hon. Members for Newcastle-upon-Tyne, West (Mr. Popplewell), and Westhoughton (Mr. J. T. Price) attached some importance to the point that these restrictions on development do not apply to private developers. In reply I pointed out that Article 9 (1, e) of the Town and Country Planning (General Development) Order, 1950, already provided special control over development. This concerned, for instance, Windsor Castle and such Royal palaces and parks not provided for in the Bill. Hon. Members will recollect that the local planning authority has to consult the Minister of Works before it grants planning permission for development within two miles of Windsor Park or Windsor Great Park or Home Park or for development within half a mile of any other Royal palace or park if the development might affect the amenities of the palace or park concerned. We felt on further consideration that the provisions of the General Development Order really gave sufficient and adequate protection and that there was no real need for us, as we had originally thought might have been the case, to import into this Bill equivalent provisions which were given by the old railway legislation.

These are the two things we seek to do by this series of Amendments, and I hope the House will agree to them.

Mr. Norman Cole (Bedfordshire, South)

May I ask one question about this? As I understood the first part of my hon. Friend's remarks—not the part dealing with the Royal palaces but the other portion—he said provisions had been put into the Bill in order to allow people acquiring ex-railway land or property to carry out development not necessarily compatible with the statutory powers of the existing railway authority. I think that is the purport of what he said. May I ask if that also applies to land and property within the possession of the Commission or the boards?

Mr. Hay

I think, with respect to my hon. Friend, that he has not fully understood—and I do not blame him—what is a pretty complicated matter. If one looks at Clause 11 (5) one sees that it is in these terms: Anything done in the exercise of the powers conferred on a Board by this section shall not be invalid on the ground that it is incompatible with the duties imposed on that Board by this Act or by any other enactment which applies to them by virtue of this Act. The whole Clause is concerned with the development of land, and I think my hon. Friend will see, if he looks at it, that the effect of that may be said to be that the boards might in fact develop their land ignoring any duty which is imposed on them by this Bill or by any other enactment such as a Private Act which is applied to them by virtue of this Bill. This is a type of provision which, I must tell my hon. Friend, is very frequently used in certain Statutes.

For reasons which I explained a moment ago, we came to the conclusion that perhaps we went too far in this connection. Accordingly we are asking the House to delete it. As I also explained, there is an equivalent subsection in Clause 74 which relates to the similar power of development of land which we are conferring on the Commission till vesting day.

Therefore, to answer the question which my hon. Friend put, what we are doing is entirely to remove from the Bill this provision relating to incompatibility both in respect of the boards in the future after vesting day and the Commission till then.

Mr. Ross

Surely by doing so the Government must be frustrating the boards in the exercise of their powers? Surely this provision was put in for some reason in the first place? It is now being taken out because the Government have found difficulties. The hon. Gentleman instanced inland waterways. It is not good enough to tell us they thought they ought to put it in the first place and then to tell us that this sort of thing is usually done in such Measures as this so as to cover such circumstances as where there is going to be disposal of assets. Obviously, in some way or another this is going to restrict the freedom of the board, whatever freedom it has. There is no doubt about that. I think the hon. Member should satisfy us about that restriction.

Mr. Hay

I welcome the opportunity of explaining the matter rather more fully in view of the interest which the hon. Member has shown in it. I am afraid that I must use a few English legal terms but no doubt the hon. Member will understand what I mean.

Mr. Ross

As long as the hon. Gentleman understands.

Mr. Hay

I thank the hon. Member very much.

The original intention behind subsection (5), which I have read out, and the corresponding provision in Clause 74 was to deal only with a technical point arising in the case of development on a rather narrow front, namely, that the carrying out of development on land not required for the purposes of the businesses of the boards with consequential leasing and granting of rights in the property as developed might in some cases give rise to a point which from time to time has come before the courts.

The point is that undertakers holding land for statutory purposes are not entitled to grant easements or other rights if such a grant is incompatible with the purposes laid upon them by statute, because it might prevent them from carrying out such purposes. The subsection was never intended to go as far as to enable a board to dispose of land in a case where such a disposal would have the effect of overriding the duty of using the land for a particular purpose. I instanced the canal case. It was because subsection (5) might be open to that interpretation that we came to the conclusion that it was best not to try to retain it, because we did not wish to go as far as that. I hope that the explanation satisfies the hon. Member for Kilmarnock (Mr. Ross).

Amendment agreed to.