HC Deb 17 December 1973 vol 866 cc984-93

4.53 p.m.

The Lord Advocate (Mr. Norman Wylie)

I beg to move Amendment No. 1, in page 2, line 22, leave out 'This Part' and insert 'Sections 1 and 2'.

Mr. Deputy Speaker (Mr. E. L Mallalieu)

With this we will take Government Amendments Nos. 2, 10 and 11.

The Lord Advocate

These amendments are all interrelated, as the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) may agree.

Mr. Ronald King Murray (Edinburgh, Leith)

Yes, I agree.

The Lord Advocate

These are drafting amendments which are consequential on the insertion of new Clause 4 in the Bill, which was inserted during the Committee stage. As originally drafted, Part I of the Bill dealt only with the future prohibition in deeds executed after the commencement of the Act of feuduties, and similar periodical payments, of more than a nominal amount. Clause 4, however, relates to the right to redeem existing feuduties, etc. This is an optional right of, for instance, a proprietor. The references which are being amended all relate to Part I in its original form, and the purpose of the amendments is simply to disapply these references from Clause 4. In other words, this is really a series of amendments consequent upon the introduction of the new clause.

Amendment agreed to.

Amendment made: No. 2, in page 2, line 23, leave out "it applies" and insert "they apply".—[The Lord Advocate.]

The Lord Advocate

I beg to move Amendment No. 3, in page 2, line 29, after 'some', insert 'continuing'.

Mr. Deputy Speaker

With this we will discuss Government Amendments Nos. 9 and 14.

The Lord Advocate

These amendments are all in the same vein. The purpose of Amendment No. 3 is to prevent the employment of a device to evade the limitation on the creation of perpetual obligations imposed by Clause 3. As the Bill is at present drafted a person selling, for example, a house could specify a periodical payment to defray some cost incurred by him, such as the cost of road works. Such a person might himself meet the initial cost by payment of a capital sum and then seek to recover his outlay, perhaps several times over, by imposing on the purchaser a periodical payment over a long period in the name of defrayal of "some cost related to the land". The insertion of the word "continuing" has the effect that a periodical payment may be imposed to defray only such costs related to the land as are themselves of a continuing or periodical nature; for example, the maintenance of amenity ground.

I should explain that a large part of this Bill is geared to preventing outlets or ways around the basic statutory provisions. I do not lay tremendous stress on the introduction of this one word, but I have been advised that it would be of advantage to the Bill if this series of amendments could be inserted for the reasons I have given. I am not suggesting that any developers would use these devices to get around legal provisions, but from a technical and drafting point of view it is advisable that this amendment should be incorporated in the Bill.

Mr. Ronald King Murray

I think that we should welcome this amendment, but I would ask the Government to reconsider the point that was made in Committee. Is it appropriate to have an omnibus clause somewhere in the Bill, excluding any device which is calculated to reinstate on land a continuing charge which is equivalent to feuduty? There is a lot to be said for an omnibus clause of that kind, but I am content on behalf of the Opposition to accept this amendment so far as it goes.

The Lord Advocate

I have considered the point of the hon. and learned Member. It is not an easy matter to decide, but we have reached the conclusion that it is better to tie up these ends as we go along. This amendment ties up one of those ends, and I commend it to the House.

Amendment agreed to.

The Lord Advocate

I beg to move Amendment No. 4, in page 2, leave out lines 32 to 34.

Mr. Deputy Speaker

With this we will take Government Amendment No. 12.

The Lord Advocate

Amendment No. 12 is consequential upon Amendment No. 4. Both of these amendments are entirely drafting and, like the ones which I have just moved, are consequential on the addition of new Clause 4. The purpose of both of these amendments is to transfer the definition of "land obligation" from Clause 3 to Clause 5. Before the addition of Clause 4, the only reference to "land obligation" was in Clause 3, and it was appropriate in those circumstances that the expression should be defined in that clause. It is normal drafting practice that where an expression arises in a clause it is dealt with in that context. However subsection (8) of Clause 4 also refers to "land obligation", so it is appropriate to include the definition in Clause 5(3), which relates to Part I of the Bill as a whole. It does not make any substantial difference to the Bill.

Amendment agreed to.

5.0 p.m.

The Lord Advocate

I beg to move Amendment No. 5, in page 2, line 37, leave out 'after Whitsunday 1974'.

This is not a drafting amendment. It is a substantial amendment. Its purpose is to enable any proprietor of property who wishes to do so to take advantage of the provisions of what is now Clause 4 to redeem his feuduty at Whitsunday—that is, 15th May—1974. As the clause is at present worded, redemption of a feuduty is permissible at any term—Whitsunday or Martinmas, which is mid-November—after Whitsunday 1974.

However, the Committee made considerable progress with the Bill and it become apparent—I should like at this stage to acknowledge my obligation to the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) and his colleagues as well as to my hon. Friends, for contributing to the speedy passage of the Bill in Committee—that the progress of the Bill would make it possible to advance the commencement date of the Bill from 1st May, which was at first thought the most probable date, to 1st April 1974.

This is a very significant change because it means that it will be possible for a proprietor to give the necessary one month's notice under subsection (3) on 15th May 1974 of his intention to redeem his feuduty at Whitsunday instead of having to wait another six months until Martinmas 1974, which is the middle of November. The amendment seeks to achieve this by deleting the words "after Whitsunday 1974". This is obviously a desirable amendment and one which I know that the House will support.

Mr. Ronald King Murray

I thank the right hon. and learned Gentleman for the kind words he has spoken, and on behalf of the Opposition I welcome the amendment. As he said, it is a substantial improvement on the Bill as originally drafted.

Mr. William Baxter (West Stirlingshire)

Now that that has been more or less accepted and agreed by both sides of the House, may I ask what powers are now vested in a superior that are not possessed by a local authority with regard to the planning and the development of a particular area? It should be clearly defined as to what the exact position is in law with regard to the feu charter making certain stipulations of one kind or another that are outwith the ambit of the Town Planning Act 1947 as it applies to England, Wales and Scotland. Some elaboration on this is necessary so that those who are owners of land and are seeking to establish feus will know clearly what their powers are vis-à-vis the powers vested in the local authority under the Town Planning Act.

The Lord Advocate

The hon. Member for West Stirlingshire (Mr. Baxter) raised this matter on Second Reading, and I was grateful to him for so doing. My mind goes back to the Planning Act 1969, which, as the hon. Gentleman knows, supercedes the 1947 Act. As the hon. Gentleman pointed out on Second Reading, it is perfectly true that local authorities have wide powers with regard to planning control at all levels.

In one sense, I was very sorry that the hon. Gentleman was not a member of the Standing Committee, because I would have welcomed his contributions to the debates in Committee. One thing which has emerged from our discussions very clearly is that local planning authorities do not want to take over, though they have always had power to do so, the kind of detailed and minutiae of controls that small developments, particularly private developments, are subject to under feudal charter regulations.

I know the hon. Gentleman's sincere interest in this matter. I can assure him that I believe, the Government believe, and the last administration equally shared this belief, that there is a rôle for private planning control in this area. I personally should not like to see that go. It is the retention of these controls which has introduced some of the complications which hold up the comprehensive change which I think undoubtedly not only the two sides of the House but all parties in the House would like to see.

One thing which is clear is that local planning authorities feel that they have quite enough on their hands. This has emerged from the discussions we have had. They do not feel that they want to take on that kind of desirable planning control. This is one of the reasons why this administration, like the last, feel that it would be desirable to preserve some kind of planning control in the feudal system.

I do not know whether that exactly answers the hon. Gentleman's question. I am perfectly willing to give way so that the hon. Gentleman can follow this matter up, because I know of his genuine interest in the matter.

Mr. Baxter

It has not been my experience on a local authority and on a planning committee of a local authority that the authority was of the opinion that it was better that the land superior controlled these minor issues as against the local authority controlling them. However, if it is necessary in Scotland that a land superior should have this power why is it not necessary in England and in Wales?

The Lord Advocate

What we are all seeking here is a change from the person who exercises this type of control. We are all agreed that the autocratic nature of the existing system should be changed. This was in the last administration's White Paper. We entirely accept it. The criticism of the present system is not the fact that there is a rôle for private planning control, which is quite clearly laid out in the last administration's White Paper and in our own Green Paper.

What we have to look to here is—in the absence of a superior, when the change takes place who and by what means will these controls be enforced? I should be very glad to discuss this matter with the hon. Gentleman if he wishes to do so. All I am saying at this stage is that we feel, as did the last administration, that there is a rôle for private planning control. That cannot indefinitely be enforced by the superior, because we are all agreed that that is not the proper way to do it. The problem is finding some other way of enforcing it. In other words, as one hon. Member said in Committee, what we want to avoid is throwing the baby out with the bath water. This is worth preserving. Local authorities do not want it. They cannot cope with this. We all have to find some other way of enforcing it rather than by the rather autocratic whim, as one might say, of the superior as at present.

Mr. Norman Buchan (Renfrew, West)

I do not wish, in making my maiden speech in detail on the Bill, to prolong the discussion on this point. The element in the last administration who was responsible for this aspect is undergoing a certain amount of rethinking on the second Opposition back bench this afternoon.

It is worth reminding the Lord Advocate that there will be a change in the nature of local authorities. The experience and views of the existing local authorities will not have relevance after 1975, and the rôle of the district authorities may have something to do with social planning in place of the individual planning.

The second point is this. This has been my predominant puzzle in my absence from the House over the past few months where I feel I may have been a little like Banquo in Macbeth— Never shake Thy gory locks at me. Why has it taken the Government three and a half years to make up their minds? If they were intent on following our lead in saying that private control should be retained, why has it taken three and a half years to solve the problem of how to do it?

The Lord Advocate

That was a problem the complexity of which was fully recognised by the hon. Gentleman. It was the kind of problem which prevented him from accepting the sort of change which I advocated on future feus. The hon. Gentleman may recollect that Mr. James Davidson, who formerly represented Aberdeenshire, West, recommended redeeming the existing feuduties.

I am pleased that the hon. Gentleman has raised this matter. These changes cannot be made until we are in a position to change the whole system. This is a difficult operation. I make no secret of the fact that I would personally have liked to do that but it is not through lack of will that we are unable to change the whole system.

Although one would have liked to be able to change the whole system at one go—nothing is more complicated than land law reform—there is a great deal to be said for progressing slowly, by stages. I have no doubt that this will be noted outside the House.

Apart from the other difficulties which have arisen, and the declared interest I have already made about trying to do the whole thing in one go, it would have been rather dangerous to try to do the whole thing in one gulp. This worries me a little because the right hon. Member for Kilmarnock (Mr. Ross) made a point about the change in structure of local government making some difference to the proposition set out in the White Paper.

Paragraph 32 of the previous Government's White Paper "A Plan for Reform" stated: Although it is true that the rôle of such conditions has to some extent been taken over by modern planning and similar legislation, the Government believe that they are nevertheless useless, as a complement to statutory controls, in enabling citizens to safeguard the value, amenity or usefulness of their property and in helping to achieve harmony among neighbouring proprietors on detailed questions of common responsibility for the upkeep of property. I am positive that if the hon. Gentleman was standing at this Dispatch Box he would now be saying exactly the same thing. I do not believe that it would happen, but if there was a change of Government at the next General Election I hope that a Labour Government would not scrap the system of private planning control inherent in the feudal system. I will not be here then. The machinery, the process, and the people who enforce it may be altered, but we must not, for Heaven's sake, change the basic principle.

Amendment agreed to.

5.15 p.m.

The Lord Advocate

I beg to move Amendment No. 6, in page 3, line 2, leave out 'redemption is required' and insert:

"the feuduty is to be redeemed.".

Mr. Deputy Speaker

With this amendment it will be convenient to take Government Amendments No. 7 and No. 26.

The Lord Advocate

These are essentially drafting amendments which deal with conveyancing technicalities. It is incorrect usage to refer to a debtor as "requiring" redemption of the creditor, because it is the debtor who does the redeeming. The amendments are simply drafting improvements intended to give effect to the idea that the proprietor who wishes to make use of the provisions of Clause 4 of the Bill is not "requiring redemption" but is rather making known his intention to redeem.

Mr. Ronald King Murray

I wish to put forward a point which arises from doubts which have been expressed to me. These amendments qualify Clause 4 insofar as proprietors are seeking to redeem feuduties. This throws us back to the definition of a proprietor as contained in Clause 5 of the Bill. From my reading of that clause "proprietor" in this sense is clearly contrasted with "superior". I should like the Lord Advocate to confirm that that is his reading of the clause.

The right hon. and learned Gentleman will appreciate that a layman reading it, particularly when reading about the defi- nition of a proprietor, might take it to also apply to a superior. There is some doubt among laymen whether the intention of Clause 4 is to allow superiors to have an option to require their vassals to redeem feuduty.

The Lord Advocate

That is not the intention, nor is it my reading of the clause. I shall read the report of what the hon. and learned Gentleman has said, and if there is anything in the point it will be taken up by letter.

Amendment agreed to.

Amendment made: No 7, in page 3 line 4, leave out from 'proprietor' to 'pay' in line 6 and insert: 'redeeming a feuduty under this section shall, at the term of redemption,'.—[The Lord Advocate.]

The Lord Advocate

I beg to move Amendment No. 8, in page 3, line 20, leave out

'be bound, if so required by the proprietor, to.'

Mr. Deputy Speaker

With this amendment we can discuss Amendment No. 27.

The Lord Advocate

Amendment No. 27 is an appropriate amendment to group with Amendment No. 8, and I am obliged for your suggestion, Mr. Deputy Speaker.

As at present drafted, Clause 4(6) prescribes that: the superior shall be bound, if so required by the proprietor, to grant a receipt and discharge … on redemption of feuduty. The purpose of these amendments is to put a statutory obligation on the superior to grant the receipt and discharge in every case. I have no doubt that, under the present wording of the clause, most proprietors would in any event ask or require the superior to grant a receipt and discharge, but these amendments would remove an unnecessary, or what might be thought an unnecessary, complication from the proprietor's point of view.

Amendment No. 8 has the effect of putting an absolute obligation on the superior, and Amendment No. 27 makes a consequential adjustment in the wording of the form of notice of redemption. A proper discharge of redemption money is in the interest not only of the proprietor who redeems the feuduty, but also of future owners of the property, because the recording of the receipt and discharge will have the effect of making the redemption of feuduty binding on all persons having interest.

Mr. Ronald King Murray

This is an improvement on the clause as drafted. In view of the fact that the Bill is to be strengthened by requiring a superior to grant the necessary discharge and receipt, can we have a reassurance that vassals will not find that they have to pay a comparatively small capital sum, say about £30 or £40, on redeeming feuduty, only to have a substantial bill from the superior's solicitors—say, £100—for doing it. The amendment helps to counter any flavour of exorbitant charges on the vassal. Perhaps the Lord Advocate will tell us what is the Government's thinking about these expenses.

The Lord Advocate

I am subject to correction on this, and perhaps I should hesitate to say anything. At the moment my understanding is that the probable cost for registration would be about £1. It is not a large sum. It is clearly desirable that when a change of this kind is being made the change should go on the register, as the hon. and learned Member will appreciate. In an earlier amendment, considered in Committee, he suggested a 50p limit. I remember that we looked at this, and the information I had was that on current charges it would be about £1. It would not be excessive in any event.

Amendment agreed to.

Amendment made: No. 9, in page 3, line 39, after 'some', insert 'continuing'. [The Lord Advocate.]

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