HC Deb 26 February 1987 vol 111 cc477-82

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Portillo.]

7.12 pm
Mr. Kevin Barron (Rother Valley)

I should like, through you, Mr. Deputy Speaker, to thank Mr. Speaker for granting me this Adjournment debate on a local issue for my constituency which also has some national implications. I do not want to rehearse the arguments I put forward in an Adjournment debate on 19 December 1984 on the ownership of Maltby Far and Low Commons. However, I would like to take this opportunity to thank Mr. William Bunting of Periplanta, Thorne, near Doncaster. Over many years he has sought to answer the question of who does own Maltby Far and Low Commons. His historical research has been invaluable to those who object to what is happening on the commons. It has been a thorn in the side of the applicant who has had the go-ahead to build on a section of Maltby Far and Low Commons.

On 19 December 1986, the Secretary of State for the Environment granted a limitation order on the commons under section 193 of the Law of Property Act, 1925. This is the first time since the Act's inception that common land has been handed over to be used as a golf course. It obviously has major implications for other common land throughout the country.

The local objectors and I believe that a golf course would be an asset to the district that I represent and live in. We believe that the only thing wrong is that the common land should not be used to complete that golf course. It took the Secretary of State for the Environment over two years to make the decision, since first receiving the inspectors' report on the public inquiry in November 1984. During that time, the local authority has sought from the Earl of Scarbrough, the applicant in the case, the evidence of his claim to ownership. It believes that his continued refusal strengthens the impression that he is unsure of his ground in relation to this matter. It certainly has made his ground unsure.

The Earl of Scarbrough's solicitor sent a letter to Rotherham borough council in October 1985 stating: Our client considers that the matter should rest with the Secretary of State's determination that he is satisfied as to our client's title to the commons. I and many residents of Maltby believe that there has been a breach of natural justice in this case. Indeed, it was said at the public inquiry in 1982 that we had to take the Earl of Scarbrough to a court of law before we could see his claim to the ownership of the commons. That would involve expense perhaps in the region of £20,000, which either I or other people who have rights to the commons would have to find. I believe that that was said at the public inquiry in full knowledge of that fact.

I have received a selection of letters since the granting of the limitation order, and I should like to read out what my constituents have been saying in relation to this matter. I received a letter from Mr. John Hadgett of Muglet lane in Maltby, who wrote: However, what the Secretary appears to have forgotten is that Lord Scarbrough has far from satisfied myself, and indeed, many more people who object to the golf course that he has claim to the land. And basically that is all we would like him to do. That is all we have ever asked the Earl of Scarbrough to do. We just want him to show us his claim of title to the land that the Secretary of State for the Environment has supposedly seen.

I received a letter from Mr. Tom Routledge of Dunns Dale in Maltby, who states: I do not object to golfers or golf courses, but to the fact that the commons are being used. In a free democracy the onus should be on the Earl to furnish proof of ownership. Mr. K. McGrath of Greenland avenue in Maltby, who I should add is related to me through marriage, has been very specific about the decision. He said: I would like to draw your attention to paragraph 6 where it states 'You (Messrs. Allen and Overy) wrote to the department on the 7th July 1981 giving details of your client's title to the soil, supported by copy documents of title'. The first two lines of paragraph 11 seem to contradict the aforementioned quote. Paragraph 11 goes on to say that no better claims had been received from anyone else. This is an extraordinary statement. Am I to assume from this that the Department of the Environment has seen evidence, which is not satisfactory, i.e. not conclusive proof of ownership, but that nothing better has been offered by anyone else? That question should be fully answered at the Dispatch Box tonight. Is it the case that, because there has been no definite proof of evidence from anyone else about ownership of the commons, the Department of the Environment has accepted from the Earl of Scarbrough something that falls short of definite evidence about the ownership of the commons?

The decision on the limitation order has not pleased many members of the local community who use the commons for their own recreation. The actions of the Secretary of State and the Earl of Scarbrough have made people suspicious of their motives. In a letter that I received from a Mr. K. Routledge of Hawthorn avenue, Maltby, he used what is now quite a popular saying in political circles. He said: Scarbrough"— meaning the noble Lord— his legal advisers and his beloved Tory party have been less than economical with the truth.

Of course, it would be quite wrong to use this language just because the Earl of Scarbrough is president of the South Yorkshire Conservative Association, but his actions on Maltby commons need some explanation. The information that I received from the Rotherham metropolitan borough council in relation to the proposed golf course was that it knew about the proposals on 15 August 1975. It received the planning application for the building of the golf course on part of these commons in April 1976. What seems extraordinary to me, particularly since the land was registered as common under the Commons Registration Act 1965, is that the Earl did not apply for his limitation order until 25 June 1979, and he would obviously have to have that before the golf course could go ahead.

Of course, in May, 1979 there was a general election and the Conservative party took office, so presumably the noble Lord then had somebody in the Department of the Environment who might be politically sympathetic.

Since the inspector's report was submitted to the Department of the Environment, there have been three Secretaries of State who could have given the go-ahead to the golf course. The right hon. Members for Wanstead and Woodford (Mr. Jenkin) and for Mole Valley (Mr. Baker) chose not to give permission. It is most unfortunate that the present Secretary of State for the Environment has seen fit to give that permission.

I would like that decision to be rescinded and a full investigation made into this matter because of what could be termed the family connection. Through marriage, the Secretary of State for the Environment is related to the family of the Earl of Scarbrough. To be more precise, the right hon. Gentleman's elder brother, the fourth Viscount Ridley, married the third daughter of the 11th Earl of Scarbrough, who is the sister of the present Earl of Scarbrough, the 12th Earl, who is the applicant in this case.

I believe that this matter ought to be investigated further. I refer the Minister and the House to the Royal Commission on standards in public life and the memorandum by the Secretary to the Cabinet in 1975 in relation to the question of interests of Ministers. The memorandum says: Ministers must so order their affairs that no conflict arises, or appears to arise, between their private interests and their public duties. The document goes on to give further detailed enlightenment on the question of family interests as well, in relation to these matters.

I believe that the public interest would have been better served, and would be better served now, if the decisions on Maltby commons had been taken by another Minister and not by the Secretary of State for the Environment, who has this family connection—I put it no higher than that—with the Earl of Scarbrough.

I repeat that I would like that order giving permission for the golf course to be built to be rescinded as soon as possible, so that a full investigation can be made into this matter.

7.25 pm
The Minister for Environment, Countryside, and Planning (Mr. William Waldegrave)

I shall deal with two matters rather quickly. First, I hope that the hon. Member for Rother Valley (Mr. Barron) will not criticise me or my Department, on the ground that we have taken over this matter. On several occasions during the course of this matter, he has been anxious that we should take time, and we have bent over backwards, particularly since the last debate in which he raised the issue, to extend the time for objection as he asked.

The history in this case is long and tangled. I complimented the hon. Member on the previous occasion on which he raised this on the immense amount of research he had done into it and the fascinating account he then gave of its history, about which hon. Members can read in Hansard. It is right to spend a lot of time, even at the inconvenience of applicants in this case, to try to make sure that no injustice is done.

In that sense, the hon. Member was a little naughty to say that the previous two Secretaries of State had not taken the decision, as if they had refused to take the decision. He gave some slight indication that there was now one wicked Secretary of State who had come to the wrong conclusion, while two benevolent previous ones had not done so, but it was, in fact, because at that time the mater was still being investigated.

I can reassure the hon. Gentleman at once on one other matter. I am sure that he in no way wished to imply—because in view of recent rulings he would not have allowed himself to do so — that there was any impropriety on the part of the Secretary of State for the Environment. In any event, I can assure him that none of the decisions that have been taken in this matter has been taken by the present Secretary of State. I have myself dealt with the whole matter, first of all as a junior Minister and then, out of courtesy to the hon. Member, when I was lucky enough to be promoted to Minister of State, I thought I should continue. The decision letters are indeed issued under the authority of the Secretary of State, but all the decisions have been taken by me. I have looked back through the files and at no point have the papers gone to the Secretary of State. This is a matter on which the power has been delegated to me. So I hope that the hon. Member will not pursue the matter. If he does, I am sure that my right hon. Friend the Secretary of State will want to defend himself most vigorously, because there really has been no impropriety.

The decisions that Ministers have to take on questions such as this are hedged about with legal safeguards, and that is part of the problem and the difficulty. Like the hon. Member, in planning matters I quite often find my own constituents are extremely frustrated by the way in which I, as the planning Minister, am unable to enter into campaigns, for example, on local planning issues. I have to say that this is a matter in which I have to stand back, as the appellate authority, and this often irritates my constituents.

We have something of the same situation here over the question, which I can well understand being frustrating to people—why why the Department of the Environment will not release the papers on which it made the judgment. That was the only judgment that we could legally make, that there was a prima facie claim, which might reasonably be substantiated in law, from my noble Friend Lord Scarbrough, and we had to acknowledge the fact that no one else had put in any other claim. On the legal advice we had, that laid a duty on us to allow the procedure to begin.

The further legal advice that we have is that we cannot insist on these documents, which are not ours to disclose. being disclosed. It is not for me to say whether they should be disclosed. I have to work within the legal constraints that are on me and I do not have the right to disclose them. But I can understand that it is a difficult point, and I do not know whether I have made the explanation clearly tonight. It is a difficult argument to put across in a common-sense way.

I have another point to make tonight to the hon. Member, which may in some sense encourage him, although it makes it difficult for me to say very much. We are still in the period within which the decision could be legally challenged. So in some sense, although not the strictly sub judice sense, I have to be careful in what I say tonight.

There is nothing on this subject that I can teach the hon. Member because he is the expert on it all, but perhaps I could refer once again to the chain of events that brought me to make the decision that I made, with legal advice, last year.

In the previous debate I put on record a fairly detailed account of the chain of events as seen by my Department from the time that Lord Scarbrough submitted the application under section 193 of the Law of Property Act 1925 to enable part of Maltby commons to be used. together with other land, for the purpose of a golf course. At that time a non-statutory local public inquiry into the application had been held and the inspector's report had been published. We were waiting for the responses from both the applicant and the objectors to the reference-back letter which had been sent by my Department on 6 November 1984. This has stated that the Secretary of State was disposed to accept the inspector's recommendation that the order be made, subject to modifications.

I undertook in that earlier debate to give consideration to all representations made following that letter both on the detail of the proposed modifications recommended by the inspector in his report and on the issue of the ownership of the commons. I can assure the House that all those representations were very carefully considered, and that is why we took further time. No one can accuse us of being hasty—the hon. Gentleman did not so accuse us—in reaching our decision, which was issued two years later, on the same date that the limitation order was made. There is still time for a legal challenge of that decision and I must be scrupulously careful to avoid further comment on the case.

However, it may he helpful if I refer to some of the events which occurred following the previous debate. First, we extended the closing date that we had given for receipt of responses to the "reference back" letter. Originally, it was the 27 February 1984, but we allowed no fewer than three extensions of the time, the last, in response to a letter written on 15 January 1985 by the hon. Member for Rother Valley, to 12 February 1985. We received representations. Among others, there was a request from the Rotherham metropolitan district council that the Department should let the council have copies of various documents, all relating to land title, and the hon. Gentleman has referred to this.

A letter was sent to the local authority on 13 February 1985 explaining that my right hon. Friend the Secretary of State was not prepared, with the legal advice that he had, to produce those documents. There followed a further request by the council in July 1985 for disclosure, which was again given careful consideration. The reply, sent on 14 October 1985, stated that the Secretary of State was satisfied that he was entitled to find, on the basis of the legal advice that he had received—the inspector's report and the opinion which had been given by Francis Ferris QC to Rotherham council—that the Earl of Scarbrough had sufficient standing to make the application. That letter also explained why we were not prepared to disclose the requested documents.

The Department also had correspondence during 1985 with the solicitors acting for Lord Scarbrough. We were advised that the modifications to the proposed order as recommended by the inspector, the effect of which would have been to reduce the area of commons over which the limitations would apply, were acceptable to Lord Scarbrough. After careful consideration of all the representations that had been made, the order was eventually made in a decision letter issued on 19 December 1986. Paragraphs 5 to 12 of that letter dealt at some length with the issues that had been raised concerning the standing of Lord Scarbrough to make the application and on the question of disclosure of ownership documents. Various other legal matters were raised in the inquiry, including whether limitations and conditions under section 193 can be imposed for the benefit of a new use of common land arising after the coming into force of the Law Property Act 1925. My right hon. Friend the Secretary of State's views on these other legal issues were set out in a paragraph 13 of the decision letter.

Section 193 of the 1925 Act does not set out any criteria for the matters that the Secretary of State should take into consideration before deciding to impose any limitation on, and conditions as to, the exercise of the public's right of access for air and exercise. Nor has this issue been tested in the courts. Clearly, he needs to satisfy himself that any limitations applied for are necessary or desirable for preventing an estate, right or interest of a profitable or beneficial nature, belonging to the applicant, from being injuriously affected. Paragraph 17 of the decision letter sets out his opinions on this aspect.

I understand that, as directed by the Department, Lord Scarbrough has advertised in the local press the fact that the order has been made, but I emphasise that the limitations set out in the order do not come into force until the commencement date of the works of construction for the golf course upon the common land.

Mr. Barron

The Minister has set out a good scenario of where we are. In the past 10 years, no work has been done on the commons—the land at issue—and a very little on the rest of the golf course, which is on the land owned by the Earl of Scarbrough. The Minister has rightly said that this could still be a matter for judicial review, but that means expense either to individuals or the local authority, which is therefore the public purse. I invite the Minister to agree that the offer made during my previous Adjournment debate by my hon. Friend the Member for South Shields (Dr. Clark) that an independent body such as the Open Spaces Society, which has been dealing with such problems for nearly a century, should see the document, and the evidence that the Secretary of State for the Environment saw, and which gave him grounds to give permission for the limitation order to go ahead.

Mr. Waldegrave

It is not within my power to insist on the documents being released—that is the legal advice that we have. It is up to Lord Scarbrough or his agents to show them to the Open Spaces Society or anybody else. I am not sure that it is for me to comment on that. I have no information as to when, if at all, the works are to start and other planning matters may have to be dealt with but are outside the scope of the debate.

I fear that, particularly in view of the possibility of a legal challenge, it would be unwise of me to comment further. I can understand the hon. Gentleman's disappointment, and I congratulate him because this is a classic example of how a local Member of Parliament can pursue the interest of his constituents with considerable scholarship and tenacity. In that personal sense, I am sorry that the outcome of the debate has been so unsatisfactory for him.