NORTHERN IRELAND (PROPERTY) (Hansard, 6 March 1978)

§ The Under-Secretary of State for Northern Ireland (Mr. James A. Dunn)
I beg to move, That the draft Property (Northern Ireland) Order 1978, which was laid before this House on 18th January, be approved. The purpose of the order is to implement some of the recommendations made by a working party of the Faculty of Law at Queen's University, Belfast, under the chairmanship of Professor L. A. Sheridan, in its report dated 11th March 1970 to the Director of Law Reform on the land law of Northern Ireland.
The changes proposed by the order are ones which can be made and operated quite independently of any large-scale reform of land law. They are also of sufficient practical importance to justify their introduction now.
The proposed order would confer on the Lands Tribunal for Northern Ireland 1144 power to declare whether land is subject to a restrictive covenant and power to discharge or vary obligations or restrictions which unnecessarily impede the use and development of land.
The order also deals with a number of comparatively minor technical difficulties which can arise when a transfer of property or an agreement affecting property involves two or more persons acting on the same side or involves the same person acting on the same side, or the same person acting on opposite sides in different capacities, such as when a man sells property to a partnership of which he is a member.
In view of the late hour, I have shortened the introduction to the order. I commend it to the House. If hon. Members have any questions, I shall do my best to answer them.

§ Mr. Airey Neave (Abingdon)
We do not wish to oppose the order. As we understand it, it represents a first step towards the modernisation of the Northern Ireland land law. In introducing it in another place, Lord Melchett explained that the land law in Northern Ireland had been brought more into line with the law in England but that the position in Northern Ireland was sill roughly equivalent to that in England before the Birk-enhead legislation in 1925. If that is the position, presumably the order is a tidying-up operation. Although progress seems to have been rather slow, we have no opposition to the order.

§ Rev. Ian Paisley (Antrim, North)
I hope that the Minister will enlarge on the order. I know that the hour is late, but we are dealing with a substantial measure which contains important matters.
There are lands in Northern Ireland which have certain restrictions placed upon them. For various reasons, the restrictions are important. Does the order mean that the Lands Tribunal may come into all lands? The explanatory note, which is not part of the order, states: to modify or extinguish such obligations or restrictions which are unreasonable". What is reasonable to the Minister could be unreasonable to me, and vice versa. The Minister needs to give us more information.
1145 I know that there are difficulties with certain properties, but, where restrictions apply to certain leases, does the order give power to the Tribunal to waive them even if they are made on moral and religious grounds? No doubt the hon. Gentleman is aware that many restrictions apply to lands in Northern Ireland, having been made on good, moral and religious grounds.

§ Mr. J. Enoch Powell (Down, South)
There are two points on the order that gave me some anxiety in studying it with the assistance of the explanatory note. I should like the Minister to direct his attention to them.
The first matter is in article 5 (2). That is the paragraph which deals with the limitation on the length of lease in respect of which the Lands Tribunal will have power to modify or extinguish impediments. I think I am right in saying that hitherto modification, under the corresponding legislation in Great Britain, has not normally been possible with leases anywhere near as short as 21 years, the general theory being that in a period so short it is extremely unlikely that the impediments will have become obsolete or that their intentions will no longer be operative.
It may or may not be right that 21 years should be substituted as a minimum. What worries me is that, having fixed upon a 21-year minimum lease as, so to speak, inviolable in respect of these impediments, the order proceeds without any limitation whatever, without any qualification, to say Except with the permission of the Lands Tribunal". If we are to let the tribunal disregard the 21-year limitation, why write the limitation into the article?
If the article had indicated special circumstances or considerations which alone would justify the Lands Tribunal giving its permission, that would make sense; but, since the power entrusted to the Lands Tribunal is completely at large in the wording of the order, we have got rid of the 21-year limitation. So we have written in the limitation and then, in effect, got rid of it, but we have got rid of it with the inconvenience that, in other circumstances, the parties might in advance 1146 have formed a view as to whether the limitation might or might not be removed, whereas now they will assume that the 21-year limit applies unless and until they go before the Lands Tribunal.
I am fortified in my anxiety about this provision by noticing that this is one of those respects in which the drafting of the order differs from the recommendations of the Queen's University working party. The working party proposed the more logical method of permitting the Lands Tribunal anyhow to consider the merits of any case that might come before it. I should have thought that that was better from a practical point of view, and that it was also better from a drafting point of view, since it is inherently objectionable that Parliament should set a limit and, at the same time as it sets a limit, should give an unlimited power to another body to disregard that limit. I hope that what I say about this will be noted and that the Minister will give attention to it.
The next point to which I want to bring the Minister is more serious. It occurs in paragraph (5) of the same article. That paragraph sets out the considerations which the Lands Tribunal is obliged to take into account in deciding whether to modify or extinguish an impediment.
I was brought up with a jolt when I read in the explanatory memorandum on this article that an impediment might be regarded as unreasonable where it was inconsistent with a statutory plan for the development of the area in which the land was situated. That seems to me to be objectionable on the ground that a statutory plan does not in itself authorise the transfer of ownership or extinguishment of rights. For example, there can be a statutory plan which envisages that in certain areas there will be development by public authorities which have rights of vesting, but one does not assume that the land will be vested because that provision is made in the statutory plan. On the contrary, as the statutory plan comes to be carried out a vesting order is duly made, and in the event the matter goes to a hearing and to appeal, so that all the considerations can be brought out at the time in the context of the implementation of the plan.
What worries me—and I shall come to the manner in which it is presented in 1147 the order—is that, in this matter of extinguishment of impediment, the mere existence of a statutory plan for development inconsistent with that impediment could be held to render the impediment unreasonable and permit the Lands Tribunal, with or without compensation, to sweep it away. It seems to me that this is an improper abridgment of the proper proceedings for the acquisition or extinguishment of rights by public bodies in the course of vesting or development.
Having stated my broad objection in that way, I turn first to the report of the Sheridan working party. I notice that the effect of draft Clause 261, which has been substantially departed from at this point in the order, is noticeably different. That draft clause first says that The Lands Tribunal shall have the power … by order to modify"— etcetera— the obligation on being satisfied of one of two things: either that the obligation has become obsolete or that it secures no practical benefit to the owner and that it unreasonably restricts the owner's use and so on. Two other cases are given in Clause 261 (2) of the draft Bill attached to the Queen's University Report.
It first sets out the basic grounds on being satisfied of which the Lands Tribunal has the power to remove or modify the impediment. Only after it has done that does the report proceed in later subsections to set out considerations which the Lands Tribunal shall take into account. In subsection (4) we find that the Lands Tribunal shall take into account the development plan (if any) and any declared or ascertainable pattern for the grant or refusal of planning permission in the relevant areas". Therefore, that pattern, which was recommended by the working party, was, first, to set out the basic grounds which would justify the Lands Tribunal in making an order and then to go on to specify certain factors which it ought—indeed, must—take into account in coming to its conclusion.
If the Minister will now look at paragraph (5) he will find that the effect is quite different. The effect there is to treat all these considerations as of equal weight, not to treat them as matters to be taken into account in determining that 1148 the basic conditions are fulfilled, but to treat them all as considerations of equal weight. For example, it treats as of equal weight (a) the period at, the circumstances in, and the purposes for which the impediment was created or imposed; (b) any change in the character of the land or neighbourhood; It then goes on in (c) to state in different terms: any public interest in the land, particularly as exemplified by any development plan adopted … for the area in which the land is situated". It seems to me that the effect of that drafting, as indeed all the more crudely expressed in the explanatory memorandum, is that inconsistency with a statutory plan for the development of the area will be treated per se as justifying the acceptance of the impediment as unreasonable and, thus, the abolition or modification of the impediment by the Lands Tribunal.
The Minister may be advised that this interpretation is too rigorous and that the planning considerations and the development plan will merely be some of the factors on which the Lands Tribunal makes up its mind. What I want to put to the Minister is the proposition that it would be quite wrong for the development plan in itself to be an obligatory basis for the Lands Tribunal to extinguish or modify an impediment. Hitherto, that has happened only in the course of vesting or other procedures when a plan came to be brought into effect.
I want to be assured that the safeguards attendant upon vesting will not be short-circuited by the power conferred upon the Lands Tribunal owing to the drafting of article 5 (5) of the order.

§ Mr. Dunn
This is the first land law reform. There were 157 recommendations in Professor Sheridan's report. Some were very complicated, and it was thought that the best way to proceed was to implement those that could be applied immediately without too many difficulties. The implementation of the whole report would have had far-reaching consequences, not only for the legal profession but for ordinary buyers and sellers because of the powers that would be vested in the Lands Tribunal.
1149 When article 5 was completed in draft, it contained a heterogeneous list of grounds on which the Tribunal could exercise jurisdiction to modify or extinguish impediments. The need was felt to try to draw up some principle for the Tribunal's guidance, and the common denominator of the various grounds was seen to be unreasonableness.
The hon. Member for Antrim, North (Rev. Ian Paisley) asked about the interpretation of "unreasonableness", and I find that difficult to answer. The Lands Tribunal and the courts are well versed in case law and will build up practice and a general structure within categories where there is an impediment that serves to nullify benefits that could be derived from development on behalf of the whole community or individuals. It may be considered that this is unreasonable.
I have no doubt that when applications are made the Tribunal will have to listen to the learned arguments of barristers on both sides before coming to a judgment. I retreat from giving an interpretation because I do not know the answer. This can be decided only by the Tribunal and the courts.
On the question of impediments prohibited by a lease from being made during the first 21 years, the order does not follow the recommendations of the Sheridan working party. The power to modify was claimed and it was proposed that covenants should exist irrespective of the length of the original term of the lease and how much had expired. We had to take account of the fact that commercial leases in Northern Ireland are commonly held for 21 years. Conferring power to modify covenants in such leases could lead to landlords' estate management practices being unreasonably brought into question, and the Tribunal is therefore given power to set aside the first 21 years' restriction in suitable cases.

§ Mr. Powell
The order does not say "in suitable cases," and it gives no indication of what, in the mind of the legislature, are the sort of circumstances in which the Tribunal should give permission. We are giving it elaborate guidance in other parts of the article, yet here, where it is given blanket powers to override the 21-year limitation, there is no indication of what the factors are.
1150 It is no good the Minister saying that it will depend on the interpretation of the courts. They will interpret the law that we are engaged in making. We should not less realise that it is law because we are merely passing or refusing to pass an order. We are just as much making law as we do in Committee upstairs. We ought, so to speak, to be able to write in a qualification. I suggest that it should have been written in here.

§ Mr. Dunn
I was answering the question on the interpretation of "unreasonableness". I may not have explained myself sufficiently well. I am advised that the draft order will relate only to suitable cases. I assure the right hon. Gentleman that I shall look at the matter again and take advice upon it. He will appreciate that this is a somewhat foreign sphere for me. I shall take advice on the matter and write to him in detail on it. The point to which he has drawn attention will be investigated.
Another question related to other entitlements to benefit of any impediment concerning some of the procedures for modification or extinguishment of those modifications. I assure the House that, as this is the first stage of land law reform, that matter will be seriously studied. The matters that have been drawn to my attention will be investigated by my advisers to see whether there is any contradiction in what we are proposing.