LOCAL LAND CHARGES (Hansard, 30 October 1975)

§ Mr. Graham Page (Crosby)
I beg to move Amendment No. 1, in page 2, line 23, at end insert— '(dd) any exercise of a power of compulsory acquisition of land by a Minister of the Crown or government department or a local authority or other public body as may be prescribed'.

§ Mr. Speaker
With this we are to take Amendment No. 20, in Clause 14, page 10, line 30, after 'power', insert— '(a) to make rules defining the acts which shall constitute the exercise of a power of compulsory acquisition and which shall accordingly bring a local land charge into existence for the purpose of paragraph (dd) of section 1(1) of this Act; and (b)'.

§ Mr. Page
This amendment provides an additional paragraph to Clause 1. The Bill gives effect to the recommendations of the Law Commission's 62nd Report on Local Land Charges. The recommendations were that neither the failure to register a local land charge nor the failure to disclose it on an official certificate of search would nullify and invalidate that land charge, but that in place of that the purchaser or mortgagee would be entitled to compensation if by that failure he suffered loss. Therefore, in Clause 1 there is set out what is a local land charge, or what shall be a local land charge in future, and Clause 2 sets out what shall not be a local land charge and shall not be registrable.
This sounds all very technical, but it is very practical. The point is that the register is there to assure the purchaser of a house or any other property that he is not buying a pig in a poke—at least, certain kinds of pigs. Suppose that having bought the pige, poke and all, he extracts the pig from the poke and finds stamped on its hindquarters "This pig belongs to the Accrington District Council", he might reasonably say "Why did you not put that on the poke so that I could see that this was happening"?
1906 The same applies when buying a house. If the house is subject to a compulsory purchase order, it is right that the purchaser should be well informed of the fact by its being registered. Indeed, laymen have said to me that, having heard about the local land charges register, they think that one would find out everything to which the house may be subject by searching—in short, that all compulsory purchase orders are registered on that register, which is not so.
A report on this very subject, which we know as the Stainton Report—a Report of the Committee on Local Land Charges—said in January 1952: There is probably no question of more importance to a purchaser than the question whether the land he is buying is likely to be taken away from him in the near future. We have been informed, and many members of the Committee know from their own experience, that land threatened with compulsory purchase is practically unsaleable. Yet a purchaser's powers of obtaining information on this question are confusing and obscure. The Report then recommended that compulsory purchase orders should be registered local land charges.
The Law Commission's Report on which this Bill is based did not go so far as to say that, because the Commission felt that it was outside its terms of reference.

§ Mr. Page
The Law Commission's Report, on which the Bill is based, did not recommend tha compulsory purchase orders should be registered because it felt that that went outside its terms of reference. However, it called attention to the fact and, after discussing the question, said that it doubted whether it was satisfactory that compulsory purchase orders did not appear as local land charges. The Commissioners said that although they regarded the matter as one which lay outside the scope of the Report, they 1907 would welcome consideration by Ministers of the question whether such orders should be made registrable.
In tabling this amendment I hope that I have opened the door to the Secretary of State. At this stage I am asking not that a list of compulsory purchase orders of various types should be set out in the Bill and made registrable but that the Secretary of State shall have power to prescribe which compulsory purchase orders, whether those made by a Minister, by local authorities or by other public bodies, should be registrable at some future date. In short, I want the investigation which the Law Commission recommended and I want a decision taken on the way in which a purchaser or mortgagee should be protected by that form of registration on the local land charges register.
This would give far greater protection to the purchaser than is afforded now by the register and would not involve great expense or trouble. It is for the registering authority to ensure that the order is put in the register, but this will not increase the expense of keeping the register by any significant amount.

§ Mr. Patrick Mayhew (Royal Tunbridge Wells)
I warmly support this amendment. I can give my reasons for doing so in about three sentences.
The purpose of having a local land charges register is to give assurance to purchasers of houses that their tenure will be secure and that they will not find that it is disturbed or threatened by rights enjoyed or alleged to be enjoyed by other people, of which they prevously had no notice.
The Englishman's home is still regarded, however romantically, as his castle. If we are to defend our castle, there is not much point in posting sentries at some but not all of the postern gates. I hope that the amendment will be accepted.

§ Mr. Bruce Douglas-Mann (Mitcham and Morden)
I appreciate the difficulties of my hon. Friend the Minister in accepting this amendment. I want to express my support for the spirit of the amendment, although if it were to become part of the Bill it would create difficulties. Nevertheless, I am sorry that 1908 my hon. Friend has not found it possible to accept the amendment which was urged upon him in Committee.
When anyone buys a property one thing he most needs to know is whether it is likely to be the subject of a compulsory purchase order. For this information to be provided as of right by virtue of the searches is highly desirable. I accept that administrative problems are involved and, therefore, at this stage I shall not press the point. However, I want to record my regret that it has not been possible to accept the amendment.

§ The Parliamentary Secretary to the Law Officers' Department (Mr. Arthur Davidson)
As the right hon. Member for Crosby (Mr. Page) and my hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) will know, I have the utmost sympathy with the motives that led the right hon. Gentleman to table the amendment. He tabled a similar, if differently worded, amendment in Committee. In Committee I also expressed my sympathies with him.
Ideally I am at one with the right hon. Gentleman. Ideally I should like to see compulsory purchase orders registrable. I should like to see them entered in the local land charges registers. However, the right hon. Gentleman knows, and I think that the House knows, that they are not registrable at present. They never have been registrable and, indeed, it was never the purpose of the Bill to make them registrable.
The Bill is based upon the Law Commission's Report. It it is a narrow Bill. As the right hon. Gentleman has rightly said, the Law Commission regarded compulsory purchase orders as beyond the scope of its Report—the Report upon which the Bill is based—and they were left out of the draft Bill which was the creature of the Law Commission and attached to that very Report.
I know that the Law Commission expressed doubts. Indeed, the Commissioners are not the first persons to have expressed doubts. The Stainton Committee expressed doubts. The right hon. Member for Crosby was a Minister in the Department of the Environment, and no doubt that same Report was on his desk at some time or other. He will know that the matter is extremely complicated.
1909 The Law Commission has said that it would welcome consideration by Ministers of the question whether such orders should be made registrable. In Committee I assured the right hon. Gentleman that Ministers had taken that warning and exhortation to heart. However, I am afraid that I cannot accept the amendment at this late stage of the Bill.
This Bill "modernises the mechanics" of the local land charge system. They are the words of the Law Commission. The Law Commission did not set out a fundamental review of the matters which are or might be registrable. It did not set out to add or create new land charges. It was never the purpose of the Bill that it should include a new category of land charges.
I should like to deal specifically with the amendment. The right hon. Member for Crosby is an expert on statutory instruments, orders and rules—a far greater expert than I am. He will know that it is plainly inappropriate that the power to create land charges should be exercisable by subordinate legislation, which is what he is suggesting by the amendment. The creation of a local land charge is a matter for statute, because the status of a local land charge is plainly one for substantive law, with major consequences attaching to it, including, as the right hon. Gentleman will know, a potential liability on public funds. Even if it were acceptable that compulsory purchase orders or any other matter could be made a local land charge by subordinate legislation, the Lord Chancellor is not the appropriate authority to decide questions which are the responsibility of a variety of other Departments, as almost all ex-Ministers will know.

§ Mr. Graham Page
As the Minister knows, there are a number of compulsory purchase orders which are already registrable as local land charges. This is nothing new. It is merely saying that we shall in future list them. Without going into the further details of the amendment, I wonder whether the Minister could assure the House not merely that Ministers will look at this matter but that there will be a serious review of it to see whether the Government can carry out the wishes of the Law Commission in clearing up this point about what is registrable in a compulsory purchase order and what is not.

§ Mr. Davidson
If Ministers are not aware of that by now, they should be aware of the concern that exists about this matter. I am sure that they desire to clear the matter up. I do not know whether the right hon. Gentleman wishes me to go into further details about his amendment. It would appear not to achieve the object he desires. It would enable the exercise of powers of compulsory acquisition to be made local land charges in accordance with rules under Clause 14.
The exercise of a power of compulsory acquisition is an acquisition. That is the conveyance from the owner to the acquiring authority. As the right hon. Gentleman well knows, it would be useless to register such acquisitions, because the land is then in the hands of the acquiring authority and is therefore no longer burdened.
To put it colloquially, if inelegantly, the purchaser wants to know whether the land he seeks to purchase is under sentence of death. He is not concerned with whether the execution has taken place, because that knowledge would be no use to him. The right hon. Gentleman will know that in the vast majority of cases compulsory purchase orders made by local authorities would be revealed by supplementary inquiries. The vast majority of, if not all, compulsory purchase orders must be drawn to the attention of the vendor. If the vendor has knowledge that there is a compulsory purchase order, and conceals that from the purchaser, he will be liable for breach of contract, or the purchase could be rescinded.
I have the utmost sympathy with the case the right hon. Gentleman presented. I hope that at some time all compulsory purchase orders will be registrable as local land charges, but this is not the Bill to achieve that desirable objective.

§ Mr. Graham Page
I am encouraged by the hon. Gentleman's last few words. I gather that he entirely accepts the principle of the amendment. I think that the wording is correct, in any case, because in many statutes the exercise of a power of compulsory purchase takes place at the time that the notice to treat is served.
If the hon. Gentleman means that he has sympathy with the fact that compulsory purchase orders should be registered 1911 and that he hopes that at some time in the future that will be so, I take that as an undertaking that Ministers will get down to the task of producing a code at some time and, possibly, an amendment to the Bill when enacted and that we shall get compulsory purchase orders properly registered. Purchasers will then know whether their property is unencumbered.
It is no argument to say that the vendor should know. That is an argument against the whole register. A vendor should know every encumbrance on his property. The register is there and the purchaser should be informed.
I take the nods of assent that the Under-Secretary has been giving to mean that at some future time there will be an amendment to the Bill when enacted to make compulsory purchase orders registrable. On that assurance, I beg to ask leave to withdraw the amendment.

§ Mr. Graham Page
I beg to move Amendment No. 2, in page 2, line 23, at end insert— '(ddd) any planning permission relating to the development or use of land (other than one which by virtue of any statutory provision is deemed to be or to have been granted) under any statutory provision relating to town and country planning whether by a Minister of the Crown, government department or local authority and any refusal of an application for such planning permission;'.

§ Mr. Deputy Speaker (Sir Myer Galpern)
With this amendment we shall take the following amendments:
Government Amendment No. 6.
No. 7, in Clause 2, page 3, line 3, leave out 'granted or (by virtue of any statutory provision)'.

§ Mr. Page
This is another amendment to the list of land charges in the clause. It deals with the charges on the property arising from the application of town and country planning law. In Committee, some of us urged that, because it was so vital for purchasers to know the planning status and history of properties, planning permissions and refusals should appear in the local land charges register. This amendment would provide for that in the Bill.
1912 It would be an innovation to put into the register details of permissions and refusals under planning Acts. Information is at present normally discovered through the supplementary inquiries one makes of a local authority when applying for an official certificate of search. From the answers to those inquiries, one is led to the register of planning applications. At present, neither planning permissions nor refusals appear, as such, in the land charges register.
Prohibitions or restrictions on the grant of planning permissions do appear. For example, permission may have been granted for the use of premises for a particular purpose, but only for a limited period. That sort of prohibition usually appears in the register, though, because of the decision a few years ago in the case of Rose v. Leeds Corporation, there is even doubt about whether these prohibitions and restrictions are properly registrable as land charges. The Law Commission recommended that they should not be registrable.
That case left local authorities and the legal profession in some confusion. Some authorities continued to register these prohibitions and restrictions as local land charges, while others did not. The Law Commission and the Bill now seek to solve the problem by saying that these prohibitions, conditions or limitations should not be land charges. The result will be that, in order to discover whether a property is the subject of any condition or restriction of that sort, purchasers' solicitors will have to examine the register of planning applications—a most inconvenient register to examine. If the prohibitions appear in the land charges register, one is informed of them on the official certificate of search—a very sample way of finding out if there are any conditions or restrictions.
I recognise that the innovation proposed in Amendment No. 2 might be a severe burden on local authorities, which would have to get geared up to registering that much, but at least the prohibitions, restrictions, conditions and limitations arising out of planning permissions should be registered. This is recognised in the Government's Amendment No. 6. I am sure that the Parliamentary Secretary has recognised the difficulty of searching, in the course of sale and purchase, the register of planning applications as 1913 opposed to searching the local land charges register. He has recognised that in Amendment No. 6 by seeking to provide that in future conditions and limitations created after the commencement of the Bill are registrable as local land charges.

§ Mr. Douglas-Mann
I very much agree with the spirit of the right hon. Gentleman's proposal but I am a little unclear about the effect of the wording of the Government amendment, should it be made. Clause 2 excludes matters from local land charges. As amended by Amendment No. 6, it will have the effect that The following matters are not local land charges:—…condition or limitation subject to which planning permission was granted at any time before the commencement of this Act or was or is (at any time) to be granted under any statutory provision". I am not sure that I follow that wording. Will this achieve what I think we both want to see? It would appear that the effect of the amendment would be that the conditions attached to planning consent in the past or the future are not going to be local land charges, and in the absence of Amendment No. 2, or something comparable, it would appear that we are not to get what we had hoped for following our discussions in Committee. We want conditions attached to planning consent to appear on the local land charges register. Is the right hon. Gentleman satisfied that that will happen?

§ Mr. Deputy Speaker
I must ask hon. Members not to make lengthy interventions in the speeches of hon. Members. I would rather that they contributed their own speech to the debate.

§ Mr. Page
The hon. Member for Merton and Morden (Mr. Douglas-Mann) is encouraging me to be presumptuous enough to interpret the Government amendment. As I understand it, it does not provide, as Amendment No. 2 would, for the registration of the planning permission or the fact that a planning application has been refused, nor does it provide for the putting on the register of prohibitions or restrictions or conditions or limitations, in existing planning permissions if they are not there already.
In some cases they are there and in some they are not. The practice varies 1914 according to the local authority. It would have been nice to be able to tell local authorities to put them all on for planning permissions which have been granted. I recognise that that would be a major operation for local authorities, and the last thing anyone here wants is to cause local authorities more expenditure. As I understand it, therefore, the Government amendment is that from the date of the Bill, if a planning permission is granted and contains some conditions restricting the use of the property or development of the property, they will appear as a local land charge.
I realise that this has not given me all that I had hoped for, but I realise, too, that if I pressed for all I had hoped for I should be placing considerable expenditure on local authorities. I think that this is a satisfactory compromise, and I should be prepared to accept it at this stage.
I still think that we shall soon have to have an amending Bill. This matter may be looked at again when we have that Bill, but at least we shall be in the same position as we are now as regards conditions already on the property. As regards future conditions, the position will be improved, in that we shall make certain that they all go down as local land charges, and the purchaser will be warned of them.
In those circumstances, in due course I shall prefer the Government amendment to that in my name.

§ Mr. Douglas-Mann
I apologise, Mr. Deputy Speaker, for giving occasion for the legitimate reproof that I received from you just now, but I think that my intervention served a useful purpose.
Even to those of us who are lawyers, the drafting of this sort of legislation is not always as clear as it might be, and I have greatly benefited from the interpretation of the Bill and the amendments given by the right hon. Member for Crosby (Mr. Page). I should welcome from my hon. Friend the Minister an assurance that in the light of that interpretation I am right in thinking that subsection (1)(b) will effectively impose the duty to register as local land charges restrictions attached to planning consents, and that it is only the effect of Clause 2(e) that would have limited it. I should like to be assured that as a consequence 1915 of the Government amendment all those conditions attached to planning consents which are registered at present—that is, by local authorities which have not followed the principles of the Rose case—will continue to be registered, and that all conditions attached to planning consents granted in future will also be registered as land charges and will appear on the search—as distinct from the supplementary inquiries.
Subject to such an assurance, I shall be happy to support Government Amendment No. 6 and resist the other amendments.

§ Mr. Arthur Davidson
The right hon. Member for Crosby (Mr. Page) described my amendment beautifully. He could not have described it better if it had been his own.
The purpose of my amendment is to remove future planning conditions or restrictions from the categories in Clause 2 of matters which are not local land charges under the Bill as drafted. It therefore makes those conditions local land charges, so that those planning restrictions and conditions which many local authorities—those which do not abide by the Rose case—now put on the local land charge register, and which the Bill would have taken off on the basis that they are on the planning register in greater detail, will now appear.
The amendment achieves that which I know my hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) and the right hon. Gentleman wanted. I gave an undertaking in Committee to consider the matter, and I hope that I have now removed their fears and anxieties.

§ Mr. Graham Page
I beg to ask leave to withdraw the amendment.

§ Mr. Graham Page
I beg to move Amendment No. 3, in page 2, line 23, at end insert: '(dddd) a prohibition or restriction embodied in a scheme under the Town and Country Planning Act 1932 or any enactment repealed by that Act. '

§ Mr. Deputy Speaker
With this amendment we may discuss Amendment No. 8, in Clause 2, page 3, leave out lines 8 to 10.

§ Mr. Page
This amendment also concerns a matter of town planning conditions, in this case the very old town planning conditions.
Clause 2(f) refers to a prohibition or restriction embodied in a scheme under the Town and Country Planning Act 1932 or any enactment repealed by that Act". From 1932 until the coming into force of the 1947 Town and Country Planning Act, all schemes under the 1932 Act were registrable as land charges, and the conditions attached to permissions were so registrable. The Stainton Committee recommended that the pre-1948 conditions should continue to be registrable, because there are occasions, although only few, when they will still have an effect on property. If the property has been in Crown hands for a period of time, these conditions placed on the property under the 1932 law will still remain an encumbrance to the property
10.30 p.m.
The Bill seeks to remove those from the land charges register, or to say that they are no longer land charges, and to put them in Clause 2 and specifically say that these shall not be registrable as land charges. I suppose from that that the registering authority ought to comb its registers and remove these where they still remain on the register. It seems to me to be more of a burden than saying that they shall remain there. As they are still an encumbrance on some properties, what is the point of removing them now and causing trouble to the local authorities to comb their registers and take them off the registers? It seems unnecessary.
My amendment to leave them as local land charges does not mean any fresh registration at all. We can leave the registers as they are at the moment. It is true that there is some clutter here from old conditions remaining on the register, but some of them may still have effect. Therefore, it seems reasonable that they should be left to be registered as land charges.

§ Mr. Arthur Davidson
We debated this in Committee. The right hon. Gentleman knows that the history of this matter and the reasons for excluding these restrictions from the categories of local land charges were explained in great detail in paragraphs 40 to 45 of the Law 1917 Commission's Report which forms the basis of the Bill. As the Law Commission indicated, restrictions imposed under pre-1948 schemes are now largely obsolete, because the time for enforcing such restrictions has long expired.
As the right hon. Gentleman said, the only material exception occurs where the Crown has had an interest in property in respect of which a breach of planning control has occurred.
The Law Commission carefully considered this problem and concluded that the advantage of removing these largely obsolete restrictions from the registers outweighed the small risk of doing so. In its view, if the Bill were to provide that the old restrictions, if already registered were to be local land charges it would have to provide that any such restrictions not registered would also have to be local land charges and thus be put on the register, notwithstanding that the vast majority of them have long ago become obsolete.
It is the view of the local authorities that their registers are unduly cluttered, and, although I appreciate the hon. Gentleman's motives in the amendment—

§ Mr. Douglas-Mann
Would there be any obligation on local authorities to remove from the register those items already registered? This would be relevant in considering the effect of Government Amendment No. 6. Would not they be at liberty to leave on the register those items which had already been registered, but not under an obligation to do so? In practice, it would be more convenient to leave them on.

§ Mr. Davidson
With regard to those restrictions on planning authorities with which I know my hon. Friend is greatly concerned, if they are already on the register the local authorities will no doubt leave them there, and it would be desirable if they did.

§ Mr. Graham Page
In those circumstances, I cannot see the point of the Government putting in Clause 2 these prohibitions and restrictions. They will not alter the law at all. Those who are registered will still remain there, because local authorities will not be obliged, according to the Parliamentary Secretary, to remove them from the register. These will never come again. They are all under the 1932 Act and all originated 1918 between 1932 and 1948. With all respect to the Parliamentary Secretary, I should have thought that putting this in Clause 2 and saying that these shall not be local land charges will oblige the local authorities to remove them from the register.
Let us suppose, for example, that after the passing of this legislation a search reveals one of these and, as a result, the vendor loses his sale. Will he not complain to the local authority "This was not a local land charge. You put it on my search. In fact, you told the purchasers something which was not true and, as a result, you frightened them off"? This is a serious position. To avoid it, they have to go through all their registers and remove all the 1932 entries.
I would not go to the gallows on this, or even into the Division Lobby. But it is a silly bit of drafting in the Bill.

§ Mr. Arthur Davidson
The right hon. Gentleman will know that a very large number of the restrictions that he seeks to put on the register now never went on the register because they were not registrable when they were made. My point is not the difficulty of combing the register but the difficulty of putting things which are very difficult to find out now back on the register.

§ Mr. Graham Page
I beg to move Amendment No. 4, in page 2, line 25, leave out 'not contained' and insert 'to which no reference is made'. If I were at the Government Dispatch Box, I would simply rise to my feet and say "Drafting". It is only drafting. In paragraph (e) of Clause 1(1), it is said: …any charge or other matter which is expressly made a local land charge by any statutory provision not contained in this section. There are no local land charges made by any statutory provision in that clause, as far as I can see. The local land charges are made by other statutory provisions elsewhere, and, therefore, what is intended by the clause, or what the description should be, is …local land charges to which no reference is made in this paragraph.

§ Mr. Arthur Davidson
I shall not say "Drafting", despite the temptation to do 1919 so. These words were considered carefully. In fact, the phrase …any statutory provision not contained in this section means any statutory provision other than paragraphs (a) to (d) of the subsection. These paragraphs plainly are statutory provisions contained in the clause. The purpose of paragraph (e) is to bring within the régime of the Bill matters which are made local land charges by statutory provisions not contained in the clause. Therefore, although I accept that this is a drafting amendment, I hope that my words have assured the right hon. Gentleman that the drafting in this case is correct.