`In section 4 of the 1993 Act (premises in the case of which right does not apply) insert at the end—
(5) This Chapter does not apply to premises falling within section 3(1) if the freehold of the premises includes track of an operational railway; and for the purposes of this subsection—
§ Brought up, and read the First time.
§ Ms Keeble
I beg to move, That the clause be read a Second time.
I hope that this new clause will prove luckier than the last.
We have already had a long and detailed debate with many references to clauses and subsections. The aim of presenting new clauses is also to give hon. Members some idea of our general intent, and this new clause is intended to deal with a pressing and practical problem—what to do about railway tracks and properties.
It has recently been brought to our attention that the Leasehold Reform, Housing and Urban Development Act 1993 did not adequately provide for cases in which flats are built over a railway track, such as the case in which a block has been built on top of a bridge or tunnel under which the railway runs. Nothing in existing law prevents leaseholders living in such flats from buying their freeholds. Freeholders have the right to take out 999-year leases on the commercial parts of the building when leaseholders buy their freeholds, but there is reason to doubt whether that would apply to land over which a railway runs, as that does not form part of the block itself. That could clearly lead to serious difficulties.
The new exemption would prevent leaseholders from exercising their right to enfranchise if the freeholds that they would otherwise be entitled to buy would include land over which a railway track runs or where it would include structures used for the support of the railway. It would ensure that the right to enfranchise cannot be exercised under circumstances in which it could seriously hinder the continued operation of a railway. That is a practical amendment.
§ Mr. Cash
I have no doubt that the Minister regards the new clause as extremely important. On the face of it, it seems to cover many matters of considerable interest to those affected by chapter I of the 1993 Act. The new clause states:In section 4 of the 1993 Act (premises in the case of which right does not apply).However, section 4 of the Act refers to premises excluded from right.
Why does the new clause not describe section 4 of the Act? It is certainly not the same description as the one in my copy of the Act. For some reason the words have been changed. "Premises excluded from right" is not the same aspremises in the case of which right does not apply".That is extremely curious and no doubt the Minister will want to explain.
That is the second point that I have had to raise as regards the drafting. My points may seem trivial but there seems no reason for the changes. At the very least, the drafting is sloppy. That is not the way to legislate. It is extraordinary that although parliamentary counsel and the 701 Department's solicitors must have been involved, we have ended up with no more than a semantic difference. That does not seem necessary.
We have not even received a minimal explanation of the new clause. The new clause provides that chapter I of the Act—headed "Collective Enfranchisement in Case of Tenants of Flats"—does not apply to premises falling within section 3(1)".That section is headedPremises to which this Chapter applies",but those words are not included in the new clause. That is an important point. The new clause states:This Chapter does not apply…if the freehold of the premises includes track of an operational railway, and for the purposes of this subsection—(a) 'track' includes any land or other property comprising the permanent way of a railway (whether or not it is also used for other purposes)".That is a new definition of "track" and it raises several questions. The sentence continues:includes any bridge, tunnel, culvert, retaining wall or other structure used for the support of, or otherwise in connection with, track.The wordsor otherwise in connection with, trackare very curious, because they refer back to the attempt to define track at the beginning of sub-paragraph (a). It seems to me that those words need to be distinguished from the definition of "track" at the beginning. At best, that is a curious way to set out such an important provision.
Furthermore, the wordsincludes any land or other property comprising the permanent way of a railwayare not a self-contained definition, asany land or other propertyincludesany bridge, tunnel, culvert, retaining wall or other structure.The word "other" is used twice and I am sure that the Minister will have heard that, as a matter of statutory interpretation, where the word "other" appears it has to be taken ejusdem generis with the other words.
There is thus a double problem. The first is that the word "track" is apparently defined as including "land or other property" and we do not know what that other property might be, because property ejusdem generis with land cannot refer to any property that is not land. The second problem involves the use of the word "track". It is used twice; it is defined in one case but not in the other.
That raises some serious questions. For example, to introduce a substantive issue, there might be a difficulty as regards the Railway Clauses Consolidation Act 1845. That Act contained rights of pre-emption with which I am extremely familiar, because for many years I had to examine such questions. The Act also contains provisions on surplus lands.
702 The rights of pre-emption and the problems of surplus lands are extremely contentious. They are directly relevant to the new clause because it states that trackincludes any land or other property comprising the permanent way of a railway (whether or not it is also used for other purposes)".If, according to the law, those surplus lands are part of the permanent way of a railway, so be it. However, that may not be the case. The existing legislation gives rise to serious questions.
I was involved in the passage of the British Railways Act 1968 and we held some extremely difficult discussions with people who had acquired land and subsequently wanted to develop it to increase its value. That was an extremely contentious issue. Much of the problem turned on the question of whether the land was subject to rights of pre-emption or surplus land.
The railwayland developments were considered important because they increased the value of the property available to British Rail, but unfortunately they gave rise to a great deal of litigation. Under the rights of pre-emption and of surplus land, it became necessary to determine who owned the land, which introduced the difficult question of the limits of deviation. The railways were provided for under enactments going back to about 1830, and the question of who owns land, including the land within the limits of variation, is directly linked to the determination of what comprises the permanent way of a railway.
The new clause says:This Chapter does not apply to premises falling within section 3(1) if the freehold of the premises includes track of an operational railway".That gives rise to a real problem. In the light of the 1845 provisions, it will be very hard to determine what comprises the track of an operational railway—defined as in the new clause—includingany bridge, tunnel, culvert, retaining wall or other structure.I do not pray in aid any special knowledge, other than to say that my great-great-grandfather founded the London-Brighton railway. No doubt, those involved had to pay well over the odds in the early 1830s in determining whether they would be able to acquire the land that they needed for the permanent way.
The permanent way can in fact go much wider than the track, within the limits of deviation, to take in land that has now become very valuable because properties have been built on it. Because in those days there was no land registration and no clear way of knowing what the limits of deviation were, other than looking at the maps and plans deposited in Parliament, it was hard for conveyancers to determine what was within the land management of the railway system. Properties built along railway lines could well fall within the estate management scheme in the Bill.
The new clause says that "operational" means "not disused". I do not know whether my hon. Friends are with me on this—
§ Mr. Greg Knight (East Yorkshire)
The definitions have been troubling me somewhat and I wonder whether my hon. Friend can help. Does he think that "operational" in new clause 13 would cover a tourist attraction that is a railway but not in the sense that it carries passengers from one city to another?
§ Mr. Cash
That is another extremely important point. It so happens that the Severn Valley railway operates very near where I live in Shropshire. I have just realised that I ought to declare an interest, because I have one share in the Churnet Valley railway in my constituency, which is a railway of the kind that my right hon. Friend describes.
The Minister has certainly not explained to us what is in the Railways Act 1993. Some of us would be extremely grateful to be enlightened about that. Further complication is added when we are told that the term isstated to have its wider meaning".If I look at a tree, for example, under its wider meaning could it not also be a bush? We do not know what the wider meaning could convey, and that could be extremely important in dealing with an estate management scheme.
The vagueness of the drafting does not allow us to determine exactly what "railway" means. That reminds me of Humpty Dumpty telling Alice that words mean whatever he chooses, andThe question is…which is to be master—that's all.That characterises the drafting. The definition in the new clause leaves open the question of what the wider meaning is, and that is problematic.
I have already exposed, as a matter of logic and law, a whole series of internal contradictions and uncertainties in provisions that the Minister has declared are very important. That certainly does not help the House or those who will soon be affected by the provisions. That problem should concern us at such a late stage in our proceedings. As the Minister said, there were five opportunities to examine the Bill in the other place and we have had the chance to discuss it in Committee and on Report. Yet the explanation for the provision is vague and uncertain.
The new clause refers to section 4 of the Leasehold Reform, Housing and Urban Development Act 1993. It is all very well to jam in at the bottom of a provision something that is so vague and uncertain, but it must be related to the relevant provisions of that Act.
§ Mr. Deputy Speaker
Order. The hon. Gentleman may have unintentionally diverted himself on to a loop line and may therefore take longer to reach his destination. He would do the House a service if he focused more directly on the new clause.
§ Mr. Cash
I am grateful to you, Mr. Deputy Speaker, for that guidance. However, I do not believe that I have departed from the new clause. I have explained its vagueness, contradictions and uncertainties. It is not possible to explain it in full without going into the manner in which it impinges on the 1993 Act.
704 The new clause is to be inserted at the end of section 4 of the 1993 Act. It says:This Chapter does not apply to premises falling within section 3(1)of that Act. In other words, the whole Act applies to the Bill for the purposes set out in the new clause. It is not necessarily a loop line; it is more a case of taking us through a tunnel into another Act. That is the point of the new clause. The Minister has made no attempt to explain the situation. She is looking for the first time at the 1993 Act. That is important, because without doing that it is not possible for the House or the people who need to refer to the legislation subsequently to understand the relevance.
The provisions of section 4 are amended by proposed new subsection (5). It is a substantive provision that relates to premises including so-called railway track, and states:This Chapter does not apply to premises falling within section 3(1)",which areany premises…if they consist of a self-contained building or part of a building and the freehold of the whole of the building or of that part of the building is owned by the same person…they contain two or more flats held by qualifying tenants; and…the total number of flats held by such tenants is not less than two-thirds of the total number of flats contained in the premises.The chapter does not apply to premisesif the freehold includes track of an operational railway", which gives rise to the difficulties of the definition.Section 4 of the 1993 Act says that the chapter does not apply to the premises that I have just outlined ifany part or parts…is or are neither…occupied or intended to be occupied, for residential purposes".I would have thought a railway track would not be regarded as something that was occupied or intended to be occupied for residential purposes unless it was part of the railway development schemes, which give rise to complicated questions about pre-emption and surplus land if they apply under the Railway Clauses Consolidation Act 1845. Section 4 goes on to say that the chapter does not apply to premises if they arecomprised in any common parts of the premises".Furthermore, it states that it does not apply to premises ifthe internal floor area of that part or those parts (taken together) exceeds 10 per cent. of the internal floor area of the premises (taken as a whole).We have had almost no explanation of the interaction between the different pieces of legislation. In the last Session, however, before programme motions came into effect, we had a fuller explanation.
The Minister referred to different premises that could be covered by new clause 13. Section 4 goes on to say:Where in the case of any such premises"—those excluded from the right—any part of the premises (such as, for example, a garage, parking space or storage area) is used, or intended for use, in conjunction with a particular dwelling contained in the premises (and accordingly is not comprised in any common parts of the premises), it shall be taken to be occupied, or intended to be occupied, for residential purposes.It would be one thing if we were merely talking about an estate management scheme, but we are not: the provision relates to the railway track business—not to mention 705 Railtrack business, which I shall not go into. The problem is that it is difficult both for those who are involved in estate management schemes and for tenants to interpret the legislation.
New clause 13 will not give enough assistance to remove the doubts that have been raised. There is much more to this than meets the eye, and there are serious difficulties to resolve. Although it has taken time to explain, the problem has to be properly considered and I look forward to hearing the Minister's explanation of what the new clause means in the context of the 1993 Act, the 1845 Act and all the other matters to which I have referred.
§ Mr. Wiggin
The new clause is bizarre. It has arrived at a late stage in our proceedings and relates to part I of the 1993 Act which is entitled "Collective Enfranchisement in Case of Tenants of Flats". I cannot understand why anyone would think that people who live above an underground railway line or the tube might think that that is relevant to them. Section 4 is entitled "Premises excluded from right" and does not apply to premises falling within section 3(1). I am aware that the Minister does not have a copy, so I shall briefly go through it.
Subsections (1)(a) and (b), (2), (3) and (4) of section 4 refer to "premises" and nothing else. To me, and perhaps to other lay people, the word "premises" implies something in which people could live, and could not refer to a railway line. That is why I find the new clause bizarre. I am afraid that I cannot dissect it in detail and with the same skill as my hon. Friend the Member for Stone (Mr. Cash), but I feel that it is wholly inappropriate in respect of leasehold and commonhold reform.
Why would the Government suddenly want to introduce a provision relating to railways in the middle of a Bill that relates to people's homes? It is extremely odd. Without wishing to fuel conspiracy theories, I could suggest that this might be another instance of the Government burying a strange amendment for use on another day. I do not see why the new clause is crucial to the Bill. The idea that tourist railways, the underground or indeed any sort of railway would be property that a commonholder would want to own is bizarre. The fact that the railways are currently in receivership makes it even less likely that anybody who wants to be included in a commonhold arrangement would consider suggesting that the underground line over which they live might be part of their property. I find that proposition extraordinarily naive.
I hope that the Minister will give us some assurances that the new clause has snuck on to the amendment paper by accident. I hope also that she will seek to withdraw new clause 13—an unlucky number on no small scale in this instance—as it is so out of character with the rest of the Bill. It strikes me as extraordinary that we are expected to believe that people who want to enfranchise will also hope to claim a small part of the Circle line. It must be an accident or even a mistake, so I look forward to hearing that the Minister will seek to withdraw the new clause as it is wholly inappropriate, especially in light of the 1993 Act.
706 One can see that garages, parking spaces, storage areas and so on are proper premises. It would be possible to convert a garage or parking space—presumably a covered one—into a home of some sort, but the idea that people would live on any part of the Circle line in a tunnel strikes me as out of order and bizarre. [Interruption.] The Minister appears to be saying that there are people who live in the underground.
§ Mr. Deputy Speaker
Order. I suggest that the hon. Gentleman does not take too much account of sedentary comments, of which the occupant of the Chair does not approve. While I am on my feet, I also remind him that he is now in danger of repeating himself more than once.
§ Ms Keeble
I am told that of 244 minutes of debate this evening, the hon. Member for Stone (Mr. Cash) has occupied 132. He probably spent about a quarter or a third of that time on new clause 13, in a contribution that was probably the least constructive that he has made, and certainly of the debate.
The new clause is intended to deal with very practical issues around access to railway tracks when major works are needed. As the hon. Gentleman said, the identification of ownership is a major issue in that regard. At the start of his contribution, he spoke about his experience of how difficult it can be if it is not possible to determine where ownership rests.
The hon. Gentleman spoke at length about estate management schemes, but I advise him that the new clause does not deal with such schemes; the hon. Member for Leominster (Mr. Wiggin) had it right—it is about enfranchisement. I also remind him that there is a need for major infrastructure works on the railways and the underground. The purpose of the new clause, as I thought I had made clear previously, is to ensure that we deal with issues of land ownership in relation to the work that is needed. It has also been made clear to us that the Railways Act 1993 did not make adequate provision for cases in which flats had been built over railway track—a point that deals with the questions about properties located on top of the Circle line. The new clause refers to blocks of flats that are built on top of a bridge or tunnel under which a railway runs.
The hon. Gentleman also asked about the definition of track. The description set out in the new clause is clear. The definition is based on that which is contained in existing railway legislation. He said that the provisions were very complex and again referred to his experience in the 1960s. Of course, legislation has been amended and introduced since then. Clearly, it would be unhelpful if the definition in the new clause was different from that used in other railway legislation.
§ Mr. Cash
If the definition of track has been lifted from current legislation, why does not the provision say so? It could merely say that "track" means whatever is stated in existing legislation. That is the normal way of dealing with such matters. I do not have the legislation immediately to hand, but I would not be surprised if there 707 were differences between the existing definition and that which is used in the new clause. If there is no such difference, why should it be set out again?
§ Ms Keeble
The hon. Gentleman asked a question and he has got the answer—it seems merely that he does not like it. There is a lot of clarity in the definition and I am told that it is based on the definitions in existing railway legislation. That seems the best possible approach.
The hon. Gentleman asked about differences in numberings. I understand that the use of Roman numerals is no longer practised. He will notice that the passage that he claims to be different from the 1993 Act is not part of the substance of the new clause. We are not inserting that into legislation; it is a parenthesis and is purely descriptive. The passage in inverted commas—the new clause itself—is perfectly accurate and there is absolutely nothing wrong with it.
I have said openly that the new clause was tabled at a late stage in response to questions about potential problems relating to access to track and other requirements for carrying out work on railway lines. Given the current importance of infrastructure work on both overground and underground railways, we must ensure that we do not in any way complicate or frustrate that through any lack of clarity as regards land ownership. That is the purpose of the new clause. It is extremely helpful and constructive, and I commend it to the House.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.