STATUTORY UNDERTAKERS

HC Deb 13 October 1975 vol 897 cc972-85

Mr. Rossi

I beg to move Amendment No. 32, in page 8, line 25 at end insert: 'ejusdem generis with those referred to in the foregoing paragraph of this subsection'.

Mr. Deputy Speaker

With this amendment, it will be convenient to discuss the following:

Amendment No. 367, in page 8, line 25, at end insert: 'which shall be subject to annulment in pursuance of a resolution of either House of Parliament'. Government Amendment No. 272.

Mr. Rossi

The object of this amendment is to ensure that the bodies being dealt with by Clause 7 are kept within the confines of the list set out in the clause. Clause 7 seeks to set out a list of statutory undertakers. It names them specifically as bodies to which very special provisions and exemptions under the Bill apply. Subsection (1)(c) goes on to say that the Secretary of State may make an order adding to that list any other authority, body or undertakers". Those other authorities, bodies or undertakers will then fall within the provisions and obtain the benefits of Clause 7.

We are seeking in our amendment simply to say that the other authorities, bodies or undertakers which may be added to the list by the Secretary of State shall be of the same nature in law as those already in the list, and, therefore, he cannot by regulation bring in other bodies that may be different in nature and legality from those that it is intended basically that Clause 7 shall relate to. That is the objective of Amendment No. 32.

I believe that I should leave the next Amendment, No. 367, to my right hon. Friend the Member for Crosby (Mr. Page), because his name appears in support of the amendment.

Mr. Harry Ewing

I believe that the hon. Member for Hornsey (Mr. Rossi) fairly put the argument in support of this amendment. However, the effect of the amendment would be to restrict the authorities, bodies or undertakers which may be specified in an order under subsection (1)(c) to any of the same nature as those specified in paragraph (b)—that is, the British Airports Authority, the Civil Aviation Authority, the National Coal Board, the Post Office and any other authority, body or undertakers—which, by virtue of any enactment, are to be treated as statutory undertakers for any of the purposes of the planning Acts.

I remind the House that a similar Opposition amendment was debated during the ninth sitting of the Committee as one of a group aimed no doubt at eliciting information about the bodies which the Government propose to specify as statutory undertakers by order under Clause 7. If I remember correctly, the Opposition's main concern was that the power enabled the Secretary of State an unfettered discretion to specify any body whatsoever as statutory undertakers for the purposes of the Bill and thus conferred on them, without any opportunity for parliamentary objection, the exemp- tions from the scheme enjoyed by such undertakers—namely, exemption of operational land from the duty and the suspension of planning permission.

As was explained in the debate, formal application of the ejusdem generis concept would be unsatisfactory because in certain cases it would never be free from doubt—this point must be borne in mind by the hon. Member for Hornsey—whether the particular body belonged to the same class or classes to which it fell to be compared. Nevertheless., it is intended that the order-making power should be reserved for such bodies as would be equated with statutory undertakers and whose development land could appropriately be brought within the concept of operational land, the primary feature of which is that the land in question should, in respect of its nature and situation, be comparable with land which is used, or in which interests are held, for the purpose of the carrying on of statutory undertakings, rather than with land in general.

Although, for the reason given, the Government are unable to accept the present amendment, they have accepted that orders should be subject to a form of parliamentary procedure. This will probably meet the point about to be made by the right hon. Member for Crosby (Mr. Page). This will be achieved by Government Amendment No. 272, which will add a new subsection (6) providing that any order made under Clause 7 shall be subject to the negative resolution procedure.

Perhaps I could take the liberty of replying to the right hon. Member for Crosby, even before he makes his speech, and save him some valuable time. The right hon. Gentleman's amendment would introduce the negative resolution procedure for orders under Clause 7(1)(c) specifying authorities, bodies or undertakers as statutory undertakers for the purposes of the Bill. I have no doubt that this amendment has been tabled to ensure that the Government's undertaking given in Committee, that the question of a form of parliamentary procedure for orders under Clause 7(1)(c) would be looked into, could be pursued.

The Government's Amendment No. 272 provides for the same form of procedure as is proposed in the right hon. Gentleman's amendment. Indeed, we have been more generous with the right hon. Gentleman than we are entitled to be. Amendment No. 272 goes a little further by providing that all three types of orders which may be made under Clause 7 shall be subject to the negative resolution procedure. I hope that when the right hon. Gentleman rises to speak it will be to utter those very welcome words asking the leave of the House to withdraw the amendment.

Finally, the effect of Amendment No. 272, dealing with Clause 7 which empowers the Secretary of State by order under subsection (1)(c) to specify any authorities, bodies or undertakers as statutory undertakers for the purposes of the Bill, is to make orders under all three powers subject to the negative resolution procedure. As I have already mentioned, in the debate on Clause 7 in Committee the Opposition expressed concern that the Secretary of State should have power to specify any authority, body or undertaker as a statutory undertaker and thus confer on it the special exemption accorded to a statutory undertaker under the Bill without any opportunity for parliamentary question as to why the body in question is considered to qualify for special treatment.

The Government were asked for and gave an undertaking that this matter would be looked into. Having done so, we have concluded that there is no objection to the negative resolution procedure in this instance. The amendment, as I said, goes further by providing that all orders under the subsection shall be subject to that procedure, including orders defining operational land in relation to particular undertakers and orders naming the appropriate Minister responsible for their affairs in relation to supplemental provisions in Schedule 4 where that question is not settled by reference to the planning Acts.

I hope that in what I have said I have not only reassured the right hon. Member for Crosby sufficiently for him to withdraw his amendment, but convinced the House that Amendment No. 32 ought not to be accepted.

Mr. Graham Page

I thank the Under-Secretary of State for his generosity. I think that he has put my amendment No. 367 in the right place. I readily accept that it is far better as Amendment No. 272 than as Amendment No. 367. It goes some of the way to meet the objection of my hon. Friend the Member for Hornsey (Mr. Rossi) about paragraph (c) to subsection (1) of Clause 7. If the House had an opportunity, as I think we said in Committee, to discuss whether women's institutes or townswomen's guilds should be called statutory undertakers, or if a private burial company were designated a statutory undertaker, we might have an opportunity of putting the Government right on this. But, as right hon. and hon. Members know, the procedure in this House for the negative resolution is not at all satisfactory. We may put down a Prayer against one of these orders and it may never come before us on the Floor of the House or even upstairs in the appropriate Committee. Therefore, one is hesitant in giving the Minister such a wide power as is included in paragraph (c).

I cannot see why paragraph (c) is necessary at all, and if the Minister is not prepared to accept the limitations on it in Amendment No. 32 I hope that in another place consideration will be given to taking it out altogether and leaving the wide scope of paragraph (b). After all, that paragraph includes any other authority, body or undertakers which by virtue of any enactment are to be treated as statutory undertakers for any of the purposes of the Act of 1971 that is the Town and Country Act 1971.

This is a wide scope, and I merely lay down this marker, that if my hon. Friend the Member for Hornsey does not wish at this stage to press Amendment No. 32 I hope that in another place our debates on this subject will be read and consideration will be given to taking paragraph (c) out altogether.

Amendment negatived.

Mr. Peter Rees (Dover and Deal)

I beg to move Amendment No. 260, in page 8, line 35, at end insert: 'and includes lands in respect of which restrictions as to the user of those lands are imposed by virtue of any enactment for the benefit of statutory undertakers in the carrying on of their undertaking'.

Mr. Deputy Speaker

With this we may take Amendment No. 259, in Schedule 4, page 60, line 48, at end insert: 'or shall authorise the overriding of any restriction as to the user of land enjoyed by statutory undertakers by virtue of any enactment'.

Mr. Rees

Amendment No. 259 is in similar vein to Amendment No. 260. Both amendments are designed to enlarge the protection that the Bill affords to statutory undertakers. I have in mind particularly water companies, but right hon. and hon. Members may feel that the position of other statutory undertakers needs to be considered. The Government have already conceded that they deserve particular treatment. However, the protection afforded them by Clause 7, in my view, and, I hope, in the view of others, does not go far enough, and I should like to bring to the attention of the Government the kind of case that I have in mind.

There is operating in my constituency and in that of my hon. Friend the Member for Folkstone and Hythe (Mr. Costain) the Folkestone and District Water Company. Like many water companies, it owns considerable tracts of land from which it extracts water, but it has certain rights of access and of extraction, and also the right to prevent the pollution of its catchment area. These rights are sometimes embodied in contracts, and sometimes in the statutes and orders under which these statutory undertakers operate. In the case of the Folkestone and District Water Company, it is the Folkestone Water Act 1949, and I believe that there is a subsequent order which was given the force of law in 1949.

Again, to give the example of the Folkestone and District Water Company, there is a large catchment area around two of its principal wells which it is crucial should not be polluted. Therefore, over the years the company has acquired certain rights and restrictive covenants which are embodied in the Act and which prevent the pollution of the company's catchment area.

The Bill as drawn certainly provides some protection for statutory undertakings. After all, it exempts local authorities from the duty to bring into public ownership their operational land. But the definition of operational land in Clause 7 is narrowly drawn and the purpose of the amendment is to extend the definition to cover these rights. The Minister may say that they are covered by the use of the word "interest" in subsection (2). My advice is that that would not be so. As I said, subsection (3) does not go as wide as the statutory undertakers would like.

Amendment No. 259 is in similar vein. It would prevent a local authority from overriding certain easements and rights which are of particular importance for statutory undertakers, particularly water companies.

This is not a mere technical point. I am sure that my experience is paralleled by that of many other hon. Members. There is considerable concern in the country at the steep rise in water rates. If these rates, easements and interests of water companies can be overriden, it must inevitably add to the cost of extracting water. That will considerably exercise the ratepayers in East Kent. I am sure that the Minister has applied himself to these amendments and will see that they are not merely a lawyer's exercise but have a direct bearing on those who pay water rates. I hope that the House will look on them with particular sympathy.

Mr. Harry Ewing

When I first saw these amendments, I realised that they had probably been promoted by the water authority to which the hon. and learned Member for Dover and Deal (Mr. Rees) referred. It is right and proper that he should bring to our notice the fears and worries of water authorities. I hope that I shall be able to reassure the hon. and learned Gentleman and also the water authorities and to allay some of the fears that they obviously have about this legislation.

Amendment No. 260 would extend the definition of operational land of statutory undertakers in Clause 7(2) to include land which the undertakers did not necessarily own but which was subject to restrictions on its use which operated for the benefit of the undertaking. Amendment No. 259 would prevent the carrying out of development of land acquired under the Bill if such development would conflict with any statutory restrictions as to the user of the land enjoyed by statutory undertakers.

Gathering grounds, which normally form catchment areas of water, are often protected from development by restrictive covenants incorporated into local Acts or orders under the Water Acts, under which the owner of the land agrees, for example, not to erect buildings on the land or to do anything which might pollute subsoil water. The land will normally be farming land, and since it will be land in which an interest is held by the water undertakers, it will not be "operational land" as defined in subsection (2).

It has been represented to my right hon. Friend's Department that the powers in the Bill—particularly the general duty imposed under Clause 17, the acquisition powers under Clause 18, together with the modified compulsory purchase procedures in Schedule 4, and the powers in paragraph 11 of Schedule 4—might operate to the detriment of the interests of water undertakers and their statutory obligations.

One fear is that the owner of land that is subject to a restrictive covenant operating for the benefit of a water undertaking could make a planning application with a view to defeating the covenant by means of acquisition by the local authority. This fear is based on the assumption that the authority would be prepared to grant planning permission for development of the land and would be prepared to buy it. But under Clause 17 and Schedule 3 the general duty of authorities to consider the desirability of bringing land into development is coupled with a requirement that in exercising their planning control functions authorities are to take into account the needs and obligations of statutory undertakers.

Furthermore, as water-gathering grounds will be unlikely to have been indicated for any major development in the development plan—if any such indication had been mooted the water authority would certainly have opposed it—any proposal for significant development of such land would require to be given publicity, and the water authority would be able at that time to voice its objections.

The water authorities' apprehensions also appear to indicate a lack of confidence that authorities will give due weight to the interests of water authorities in carrying out their duties and exercising their powers under the Bill. But those interests are also the interests of the consumer within the community the authority serves and must enter into the consideration of any development proposal which would affect those interests. This is recognised formally by paragraph 1 of Schedule 3.

In all fairness to the hon. and learned Member for Dover and Deal and his hon. Friend the Member for Folkestone and Hythe (Mr. Costain), I should say that this is not an unimportant consideration. The authority will have to consider the interests of the consumer. The consumer has a vital interest in a ready and adequate supply of water. It would be an irresponsible authority that did not consider the interests of the consumer and this aspect of planning. In this alone there lies a reassurance for the water authorities, and the fears that they have expressed to both the Department of the Environment and to Members representing their interests have proved to be unfounded.

Concern has also been expressed that land in respect of which covenants have been taken would be acquired under the Bill without the necessity of a public inquiry, but with the amendments which have been made an inquiry into a compulsory purchase order to which the owners of the land object will be obligatory where the status of the land as development land has not previously been established after an inquiry. There is an added safeguard here for the water authorities because the inquiry into a compulsory purchase order will be obligatory.

There are objections in principle to the amendment to Clause 7 in that it would conflict with the long-established concept of "operational land", which requires that it must be land in which an interest is held for the purpose of carrying on the undertaking.

Furthermore, the purpose of the provisions of the Bill relating to the operational land of statutory undertakers is designed to enable them to carry out development—and it is important to recognise this—for the purpose of their undertakings without having to go through the machinery of the land scheme. The Bill does not, and is not intended to, take such land outside the scope of the powers of acquisition, and the extension of the definition of operational land as suggested would not afford any statutory protection whatever to land over which statutory undertakers have the benefit of statutory covenants. That is not to say that the authorities should regard such land as potential development land without full consideration of all the planning and operational factors, which is implicit in Schedule 3.

9.15 p.m.

There are three main points on the amendment to paragraph 11 of Schedule 4. First, paragraph 11 merely imports a corresponding provision from the Town and Country Planning Act—Section 128—and there is no reason why this provision, in a Bill which the Government have repeatedly stressed is planning based, should be any different from that in the Town and Country Planning Act.

Secondly, paragraph 11 applies only where planning permission for the development of land has been granted, and the same considerations will apply in respect of the grant of planning permission where paragraph 11 is proposed to be exercised as apply to land acquired under the Town and Country Planning Act, where Section 128 of that Act is the relevant provision.

Thirdly, paragraph 11 and Section 128 of the 1971 Act would not in any event authorise any interference with statutory rights. Any question of amending this provision should, therefore, be considered in relation to planning legislation and not the Bill.

I have gone to considerable lengths and taken some time to try to reassure the hon. and learned Member for Dover and Deal and his hon. Friend that the water undertakings which have expressed fears have no ground on which to worry. We do not regard as unimportant the fears that have been expressed. That is the main reason why I have taken time to explain in some detail the guarantees, assurances and protections that water undertakings have.

I repeat that the main guarantee that water undertakings have is the responsibility on the authorities to take into account the consumer whom they represent and the interests of that consumer. In that lies the protection that the water undertakings are seeking.

Against that background I ask the hon. and learned Gentleman to withdraw the amendment. If he feels that he cannot withdraw it, I shall have to ask my right hon. and hon. Friends to resist it.

Mr. Costain

I am grateful to my hon. and learned Friend the Member for Dover and Deal (Mr. Rees) for raising this matter, which affects both our constituencies. The supply of water in our area is very scarce and some of it comes from wells which are easily polluted, particularly those adjoining the Dungeness power station.

It would be helpful if we could have a further assurance that the claims and the privileges which the water company has had to obtain to enable it to keep the water supply pure could be registered. Public inquiries often fail to produce the full results we expect from them. Is there any way in which the local authority could be informed and in which there could be registration of the interests involved?

Mr. Ewing

If the water undertakers read the remarks I have just made they will obtain the assurances they seek. It is in the interests of the Government, the local authorities and everyone that water undertakings should expand and make sure that an adequate and pure water supply is provided. Nothing in the Bill will prevent that from happening. I have gone some way to give every assurance I possibly can, and I am sure that the water undertakings will accept the assurances I have given.

Mr. Peter Rees

The Minister has gone sympathetically and fully into the case that I advanced in moving the amendment. He has dazzled the House with a display of legal expertise of which I am not absolutely certain that I was aware that he was capable until this moment. I pay tribute to the thoroughness with which he has mastered his brief.

As the hon. Gentleman recognised the validity of the case that I advanced I should have thought that he could have accepted the amendment. However, I know the pride that great Departments have, how they will never recognise that an amendment moved by a mere back bencher can have any validity and is always shot through with legal imperfections. This is true of Departments under Conservative and Labour stewardship.

However, I do not propose to press the amendments to a Division. I hope that the local authorities and the inspectors who may be concerned with such matters on future occasions will be able to read the points made by the Minister. However, if it should transpire on a later occasion that they have not heeded the points made by the Minister, I know that he will allow us to return, perhaps on a Private Members' Bill if need be, and raise the matter again. Subject to that, I do not think that I should be justified in detaining the House further. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Harry Ewing

I beg to move Amendment No. 33, in page 9, line 13 leave out 'land of statutory undertakers is operational land' and insert: 'any land is operational land of statutory undertakers, or would be such land if it were used or held by statutory undertakers for the purposes covered by the permission'.

Mr. Deputy Speaker

With this amendment we shall discuss Amendment No. 175, in page 23, line 14, Clause 24, leave out 'the operational land of statutory undertakers' and insert: 'land which is operational land of statutory undertakers, or would be such land if it were used or held by statutory undertakers for the purposes covered by the permission.'.

Mr. Ewing

Amendment No. 33, to Clause 7, which is consequential upon the second amendment, provides that, if any question arises under the Bill whether land would be operational land of statutory undertakers if it were used or held by statutory undertakers for the purposes covered by planning permission, that question is to be determined by the appropriate Minister in relation to those undertakers—for example, by the Secretary of State for Energy where the undertaker concerned is the National Coal Board.

The purpose of the second and main amendment, to Clause 24, is to disapply the provisions for the suspension of planning permission where planning permission is granted for development which, if the land were used or held by statutory undertakers for the purposes covered by the permission, would be operational land of those undertakers.

Paragraph 53 of the White Paper expressed the intention that statutory undertakers would be able to acquire and develop land needed for their statutory functions without the intervention of local authorities. The Bill as it stands does not fully carry out that intention in respect of acquiring land.

Although Clauses 20(3)(d) and 24(9)(b) exclude operational land of statutory undertakers from the duty and from the suspension of planning permission, there is no cover at all for the interests of statutory undertakers who propose to acquire land and develop it for operational purposes if planning permission is granted. Although there are other considerations which must be satisfied, land cannot be operational land unless either it is used for the purposes of carrying on a statutory undertaking or an interest in it is held for those purposes.

It is entirely reasonable that statutory undertakers should not acquire land for operational purposes until planning permission has been granted, but unless they have done so the planning permission will be suspended until such time as the authority have acquired the land or abandoned their power to acquire it, because the land would not be operational land when the planning permission was granted.

The effect of the amendment to Clause 24(9) is that Clauses 21 to 23—suspension of planning permission—shall not apply, not only to planning permission granted in respect of land which is already operational land, which is covered by paragraph (b) of the subsection, but also where the land would be operational land if it were used or held by statutory undertakers for the purposes of the development for which the planning permission was granted.

For example, the Post Office proposes to erect a telephone exchange on a piece of land which the owner is willing to sell. After the relevant rate it applies for planning permission for the development, which is granted.

Without the amendment the planning permission is automatically suspended until such time as the authority has acquired all material interests in the land and then disposed of a material interest for the purpose of the development, whereas with the amendment the planning permission is not suspended and the Post Office is free to acquire the land and construct the telephone exchange in accordance with the permission.

The amendments do not take away the power of authorities to acquire operational land, or land which upon acquisition for the proposed development would become operational land. They merely prevent the provisions of the Bill from obstructing the carrying out of operational development for which planning permission has been granted.

Amendment agreed to.

Amendment made: No. 272, in page 9, line 16, at end insert: '(6) An order made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.—[Mr. Harry Ewing.]