HC Deb 15 October 1969 vol 788 cc512-7
Mr. Charles Fletcher-Cooke (Darwen)

I beg to move Amendment No. 19, in page 18, line 40, leave out 'public interest' and insert: 'declared objectives of the relevant local planning authority in respect of the future preservation, development or user of the land'.

Mr. Deputy Speaker

With this Amendment it would be convenient to take Amendment No. 20, in page 19, leave out lines 1 to 9.

Amendment No. 24, in page 25, line 17 [Schedule 2], leave out public interest ' and insert: 'declared objectives of the relevant local planning authority in respect of the future preservation, development or user of the land'. and Amendment No. 25, in page 25, leave out lines 21 to 28.

Mr. Fletcher-Cooke

There is an air of unreality about this debate. We all know that at this stage of the Session the Government will not give an inch because they cannot. We are therefore moving through these Amendments with some speed, merely to make a protest against the attitude of the Government, which is that on no major matter will they give way at all.

Clause 27 is a very deep incision into private rights. I will not elaborate for the benefit of the large House which is listening the old law in Section 84 of the Law of Property Act, by which restrictive covenants, if they ceased to be of any value to the person or the land on whose behalf they were originally taken, could be lifted by the Lands Tribunal. That was much too difficult. We all know that. The Land Commission rightly recommended that instead of it being necessary to prove no benefit it should be, broadly speaking, "no substantial benefit". We have all agreed with that, both in another place and here.

But then the Lord Chancellor, in his reforming wisdom, said that one could prove something else. Even if there were substantial benefit to those enjoying the restrictive covenant by which the land was protected from development on its boundaries or from some noxious industry or something such as that, if the would-be developer could prove that the restriction was contrary to the public interest that was enough for the Lands Tribunal to lift it if it were so minded.

The phrase "public interest" is vague and non-justiciable. Everybody has a different idea of what is the public interest. Its very vagueness is a threat hanging over anybody who has the enjoyment of a restrictive covenant. We think that it is unfair, unjust, uneconomic and undesirable that this vague threat should hang over the heads of those who want a little peace and quiet in their old age, among others, and in Committee we therefore tried to excise altogether this alternative ground.

The Government did not give an inch on that point. Today, we have suggested a compromise—that there should be an alternative ground, not this vague phrase "public interest" but the declared objectives of the relevant local planning authority in respect of the future preservation, development or user of the land. That gives the Government a lot. It puts the public interest into the forefront of the battle but it has the advantage of deferring it. It makes it possible for those advising landowners and would-be purchasers, and others who might have to go to the Lands Tribunal, about what is meant by the second alternative.

One could say that the man who wants to develop one's backyard or the backyard next door will not be able to do it against one's wishes and in conflict with one's valuable interest unless such development is consonant with the declared objectives of the relevant local planning authority in respect of the future preservation, development or user of the land". That is some limitation at least on the very vague and dangerous phrase "public interest", in the name of which so many crimes in our country have been committed.

For that reason, and because I have very little optimism about the outcome of the Amendment, I move it briefly, but the brevity of my speech must not be taken to mean that we do not feel deeply and sincerely on the subject. We regard this provision as a blot on what is otherwise a good Bill.

The Solicitor-General

The Amendment does not deal with the matter by setting out the subject of the declared objectives of the relevant local planning authority as illustrative of public interest or as an element in public interest which Parliament regards it as peculiarly desirable to consider. It displaces public interest by the different concept of the declared objectives of local planning authorities.

That means that the Amendment would reduce the scope of the new powers given by the Bill to the Lands Tribunal for the purposes of discharging or modifying restrictive covenants. It would achieve this by preventing the Tribunal from discharging or modifying a covenant on the ground that it is contrary to the public interest and enabling it instead to discharge or modify on the ground that the covenant is contrary to the declared objectives of the authority, as spelled out in the Amendment.

The new subsection (1)(a) of Clause 84 provides that where it is shown that reasonable use of the land would be impeded by a restriction, the Lands Tribunal may discharge or modify the restriction if, first, it is not of substantial value or advantage to the persons entitled to its benefit, or, secondly, if it is contrary to the public interest and if money would be adequate compensation for the loss or disadvantage resulting from the discharge or modification.

The new subsection (1)(b) lists the factors which the Lands Tribunal must take into account in determining whether a case falls within subsection (1)(a) and whether a restriction should be discharged or modified. These factors or guidelines are the development plan and any declared or ascertainable pattern for the grant or refusal of planning provision in the relevant areas as well as the period at which, and the context in which, the restriction was created or imposed and any other material circumstances.

The first and third Amendments would substitute declared planning objectives for public interest. The second and fourth Amendments would delete the new subsection (1)(b) and thus remove the guidelines. In our view, these Opposition proposals should be rejected on the ground that they would unreasonably tie the hands of the Lands Tribunal and prevent the consideration of restrictions in a wider and more balanced context than that of planning policy alone. Planning policy is but one of the considerations relevant to the public interest and is specifically referred to in the new subsection (1)(b) as a matter which the Tribunal is to take into account.

The effect of the Amendment would be to convert the Lands Tribunal into a veritable rubber stamp when confronted with evidence that a restriction was contrary to declared planning objectives and the Tribunal would not be able to discharge a restriction which was in conflict with the public interest but not contrary to declared planning policy, a situation which, I should have thought, the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) would recognise as one quite likely to occur and which I particularly had in mind when I made my introductory observations about the Amendment in pointing out the form it took.

Mr. Fletcher-Cooke

Would the Solicitor-General give an example of a restriction which, though valuable from the point of view of the public interest, was not in conformity with the declared objectives of a planning authority?

The Solicitor-General

I will resist the hon. and learned Member's invitation to give examples, though I am touched by the confidence he reveals that such an event could never occur.

It is thought that the new subsections (1)(a) and (1)(b) strike the right balance by requiring the Tribunal to have regard to planning considerations. But at the same time neither treating those considerations as conclusive nor as exclusive of other public interest factors. I feel that we are taking a realistic and sensible view on the matter.

The argument that the Lands Tribunal's power to discharge a restriction on the ground that it is contrary to the public interest is too wide can be countered to some extent by pointing to the fact that the power is, first, a power and not an obligation and, secondly, that it is exercisable only where the restriction impedes some reasonable user of land and only where money would be adequate compensation for its removal. These limitations on the removal of restrictions by the Tribunal, allied to the specific guidance in subsection (1)(b) in considering planning factors, should, we think, give the Tribunal the right balance of flexibility and restraint in the exercise of its jurisdiction.

My recommendation to the House, therefore, is to reject this Amendment, and with that advice I venture to combine an expression of hope that the hon. and learned Member for Darwen will not suffer too much discomfort from reflection upon the dichotomy between public interest and planning decisions.

8.45 p.m.

Mr. Fletcher-Cooke

I have reflected during the course of the learned Solicitor-General's speech, and I am still rather puzzled as to what the Government have in mind in regard to this dichotomy. We have seen one horn of the dichotomy—if a dichotomy has a horn, namely, planning considerations. What is the other horn of this beast? No examples are given. It is a most terrible threat to every householder and land owner, and every person who has a restriction covenant and who hopes to have a little peace and comfort in his retirement. It is a horn which has not been disclosed. All we know is that it is something different from planning authorities, and it is something which should be disclosed.

I hope that, even now, the learned Solicitor-General, having had a moment or two in which to reflect, can give us one example—only one—of something that is not a planning consideration but would nevertheless be in the public interest for a valuable restrictive covenant to be lifted.

Amendment negatived.

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