HL Deb 10 July 1899 vol 74 cc276-89

House in Committee (according to Order).

Clause 1 agreed to.

Clause 2:—

* VISCOUNT CROSS

This clause provides that not less than forty days before the making of a scheme the council shall give the prescribed notice of their intention to make it, and shall state where copies of the draft of the scheme may be obtained, and where the plan therein referred to may be inspected. In the opinion of the Board of Agriculture, forty days is not a sufficiently long notice, because persons interested may be abroad and may not get the notice in time. I therefore propose an Amendment to substitute three months as the term of notice.

Amendment moved— In page 1, line 20, to leave out `forty days' and insert 'three months.'"—(Viscount Cross.)

On Question, "That the words 'forty days' stand part of the clause, "resolved in the negative.

On Question, "That the words 'three months' be here inserted," agreed to.

* VISCOUNT CROSS

I have a proviso to add at the end of Clause 2. I am very anxious that the expenses in connection with the regulation of commons should he reduced as much as possible, and in the matter of small commons and village greens I do not think it should be necessary to obtain the consent of two-thirds of the commoners, which is a very expensive proceeding. The difficulty, first of all, is to get hold of two-thirds of the commoners, and, secondly, to get their consent. What we propose is that a scheme may go on, unless the Board of Agriculture receive a written notice of dissent either from the person entitled, as lord of the manor, or otherwise, to the soil of the common, or from persons representing at least one-third in value of such interests in the common as are affected by the scheme. It must not be forgotten that we are dealing in this matter with private rights. The lord of the manor, as well as the commoners, undoubtedly has a right, and we must remember that commons do not belong to the public, but to the commoners and to the lord of the manor. Although, as I have said, I am most anxious to reduce expenditure as much as possible, I do not think it is right that private property should he taken away in this summary manner by a Department. It is not a good thing to say that people may break the Tenth Commandment, and, when they have broken it, it is still a worse thing to say that they may break the eighth.

Amendment moved—After line 12 to insert the following proviso: Provided that if, at any time before the Board have approved of the scheme, they receive a written notice of dissent either—

  1. (a) from the person entitled as lord of the manor or otherwise to the soil of the common; or
  2. (b) from persons representing at least one-third in value of such interests in the common as are affected by the scheme;
and such notice is not subsequently with. drawn, the Board shall not proceed further in the matter."—(Viscount Cross.)

LORD BURGHCLERE

I had proposed to move to amend the Amendment of the noble Viscount by inserting after "provided that" the following words: "in the case of commons exceeding 200 acres in extent." I think the Government might well have accepted the provisions of my Bill as originally drawn, and that we might have relied with assurance upon adequate inquiries being made, and due discretion exercised, by the Board of Agriculture, without referring at all to the absolute veto of the lord of the manor and those interested in the commons. By the Bill as it stands, the lord of the manor and all those interested in commons would have ample opportunity of laying their objections to any scheme that might be proposed before the Board of Agriculture, and I cannot conceive the Board of Agriculture, under any possible I conditions, refusing to listen to those objections or sanctioning any scheme in connection with which there could be shown a shade of justifiable objection. I understand that the Government are unable to accept my Amendment, even in the case of the smallest commons, and I deeply regret that they have arrived at this decision. The Bill as it stands seems to me to be a right and equitable alteration of the law for the benefit of everyone concerned, including the lord of the manor, and I had hoped that, although the noble Viscount could not accept the Bill as it was originally drawn, he would, at any rate, have been able, as a compromise, to support my amendment to his Amendment, limiting that Amendment to cases of commons exceeding 200 acres in extent. However, the Bill, even as amended in the manner proposed by the noble Viscount, contains a concession of considerable value, and an alteration of the law which will be of great benefit to the commons affected. The Bill, notwithstanding the Amendments, absolutely meets those special cases to which I alluded when I had the honour of moving the Second Reading of this Bill, and the hardship of which I ventured at that time to lay special stress upon—I mean the case of the smaller commons, which everyone agrees might be improved, regulated, and used for the enjoyment of the neighbourhoods in which they are situated. Under the Commons Act of 1876 we were obliged, even in the case of very small commons, to go through such an expensive and lengthy procedure as practically to prohibit the possibility of promoting schemes for their regulation and improvement. Under this Bill, even as amended, we get rid of the exhaustive inquiries on the spot, the reference to Parliament, and the reference to the Select Committee on Commons in Parliament. We also get rid of an Act of Parliament, and of the expensive process of sending down a valuer to make an award. I know this only takes place in non-contentious cases, but I am assured, on very good authority, that, in the case of the smaller commons to which I have alluded, in nine instances, out of ten there will be no opposition, and that, therefore, great benefit will be conferred by this Bill. I have reason to believe that if I accept the proviso of the noble Viscount, and withdraw my Amendment to it, the Bill will be regarded by the Government as a non-contentious measure, and will receive their support and encouragement when it reaches the other House, should your Lordships allow it to pass through all its stages here. In order that the Bill may become law this session I will withdraw my Amendment, and accept the noble Viscount's proviso.

VISCOUNT CROSS

I am glad that the noble Lord has seen his way to withdraw his Amendment. The view of the Board of Agriculture coincides with that of the noble Lord, and they believe that with regard to the smaller commons the noble Lord will, in the majority of cases, even with the proviso added, gain his object.

THE EARL OF CAMPERDOWN

I am rather sorry that the noble Lord has withdrawn his Amendment without having it more fully discussed, because I regard the proviso as it stands as rather too stringent. The proviso states that if the lord of the manor or persons repre- senting at least one-third in value of the interests in the common dissent, then the scheme is to be absolutely withdrawn. If it were proposed to take away any rights of property without compensation, I should thoroughly agree with the proviso the noble Viscount proposes, but if your Lordships will look at Clause 7 of the Bill you will see that it is there provided that: No estate, interest, or right of a profitable or beneficial nature in, over, or affecting any common shall, except with the consent of the person entitled thereto, be taken away or injuriously affected by any scheme under this part of this Act without compensation being made or provided for the same by the council making the scheme, and such compensation shall, in case of difference, be ascertained and provided in the same manner as if it were for the compulsory purchase and taking, or the injurious affecting of lands under the Land Clauses Acts. Therefore, my Lords, under the Bill as it stands the fullest compensation is provided, both for the lord of the manor and for any other person whose property it may be proposed to take away. In the first instance, the individual whose right was affected would have the power to appeal to the Board of Agriculture, and we may suppose that the Board of Agriculture would listen carefully to his statement. Then, if the Board of Agriculture should not agree with the person protesting, it is true the lord of the manor would have to surrender his right, but he would be amply compensated. I would put it to the House whether, under the present law, the rights of property owners are not amply protected. Of course as the noble Lord has withdrawn his Amendment there is nothing more to be said, but I think the case which he presented to the House was one deserving of very careful consideration.

LORD DAVEY

I am afraid that the Amendment of the noble Viscount will prove extremely embarrassing, both to the district board and to the Board of Agriculture. I agree that the powers which it is proposed to exercise under this Bill may interfere with the legal rights of the lord of the manor. Therefore it is right, no doubt, that the lord of the manor should have a veto, but this does not apply to the commoners, because with the omission of Clause 8 of this Bill—the omission which the noble Viscount proposes to move—nothing can be done to the common which will in any way interfere with the rights of the commoners to feed their cattle, sheep, ponies, donkeys, and geese on the common. There will only be then the power to make a scheme for regulating and levelling the common and so forth, but not to deprive any person of any right of common or in any way whatever to restrict or hinder the exercise of his right of common over the whole common as heretofore. Therefore it is not strictly necessary that the consent of the commoners, represented by two-thirds, should be required. I think I am right in saying that only the consent of the lord of the manor is required to the making of a Provisional Order under the Inclosure Acts, although a Provisional Order of that character may seriously interfere with the rights of commoners. Therefore, I do not think it is strictly necessary to the limited purposes to which this Bill will be restricted if Clause 8 is struck out, as I suppose will be the case, that the consent of two-thirds of the Commoners should be obtained when their rights will not in any way be interfered with. There is another objection to the manner in which the Amendment is framed. The noble Viscount's Amendment requires notice of dissent from persons representing at least one-third in value of such interests in the common as are affected by the scheme. The noble Viscount, no doubt, is aware of the litigation which has taken place, and the difficulties which have been experienced in ascertaining exactly who are the commoners who have rights of common, whether exercised or not. That difficulty will be very much enhanced when you have to consider the value of the interests which persons may have in the common; and he would be a bold man indeed who would venture to place a value upon those interests. Therefore it will be extremely difficult for the Board of Agriculture in many cases to ascertain whether the persons who dissent represent one-third in value of the interests in the common, and it will be equally embarrassing for the district board. I would venture to ask the noble Viscount whether, at another stage, he could not consider the expediency of leaving out division (b) of his Amendment.

LORD RIBBLESDALE

I am glad that the noble Lord has withdrawn his Amendment, and that there is now a possibility of the measure being regarded as a non-contentious one. I should be glad if the noble Viscount could give the House some assurance that the Bill will be pushed on in the other House and become law this session.

THE MARQUESS OF RIPON

I agree with the noble Lord who has just spoken in thinking that Lord Burghclere has done well in not contesting the Amendments of the Government, and in taking a step which, I hope, will secure the passing of this Bill during the present session. The Bill, as amended, will not secure all that my noble friend desired, but it will, at any rate, simplify to a large extent the process connected with the regulation of commons and village greens. I feel a little regret at the disappearance of the noble Lord's Amendment to this clause, and I hope it will be remembered that there is a great difference between small commons and large commons. This Bill was drafted for the purpose of providing simpler and less expensive machinery for regulating small commons and village greens, the circumstances of which are very different from those of the large commons, some of which are many thousands of acres in extent. Although I am sorry that the Amendment has been withdrawn, at the same time I think the noble Lord exercised a wise discretion in not pressing it.

* VISCOUNT CROSS

It is true, as the noble Marquess has stated, that there is a natural difference between large and small commons, but the principle of maintaining private rights is the same and applies to both. With regard to the observations of the noble and learned Lord (Lord Davey), I may say that, although I listened with all the care I could to the very ingenious argument he put forward, no practical difficulty has been experienced in finding out who are the commoners. The difficulty has been in providing the funds for that purpose. My Amendment will do away with a large portion of the expenses, because it will be much easier to find out one-third of the persons interested than two-thirds. In reply to Lord Ribblesdale, I should be very glad, personally, to see the Bill passed as an agreed Bill this session, if possible. I cannot answer, of course, for what may take place in the other House, but I know that it is the wish of the right hon. Gentleman the President of the Board of Agriculture that the Bill should pass as quickly as possible.

LORD SPENCER

The noble Viscount apparently did not thoroughly grasp the point in the speech of my noble and learned friend (Lord Davey) behind me. I have had a very large experience with regard to commons, and I endorse what the noble and learned Lord has said as to the difficulty of ascertaining the value of interests which persons may have in a common. The difficulty in regard to the commons with which I have been connected was, first of all, to ascertain who were the commoners who had a legal right to the common, and, secondly, the value of their right. I cannot help thinking that there is a very substantial and real objection to division (b) of the noble Viscount's Amendment.

LORD THRING

My Lords, I have had a great deal to do with legislation affecting commons, and, although I am sorry the Amendment was not insisted upon, I cannot but congratulate your Lordships upon having consented to what, I believe, will be a very useful Bill. Under this Bill it will be brought within the power of every county to regulate its ewn commons, and I regard the Bill as a very useful one.

On Question, "That these words be here inserted," agreed to.

Clause 2, as amended, agreed to. Clause 3, agreed to.

Clause 4:—

* V1SCOUNT CROSS

My Lords, I move to leave out Clause 4. Under this clause a parish council may apply to the district council of the district comprising the parish to make a scheme for the regulation and management of any common within the parish; and, if the district council refuses or neglects to make a scheme, the parish council may apply for that purpose to the county council. The county council, if satisfied that the circumstances are such that a scheme should be made for the regulation and management of the common, may pass a resolution to that effect, and thereupon the powers and duties of the district council, so far as regards the common, are, under this clause, transferred to the county council, and the management of the common vested by the scheme in that council. Under this clause one authority would practically be set up against the other, and in the opinion of the Government district councils may well be trusted with the making of these schemes.

Amendment moved— In page 2, to leave out Clause 4."—(Viscount Cross.)

THE EARL OF KIMBERLEY

The proposal in the clause is entirely in accordance with modern practice, and the power of appeal to the county council has been found extremely useful; it sometimes happens that the district council is not always a wise body, and that the county council, being more independent, can intervene with advantage. I do not think there is anything at all alarming in this clause.

* VISCOUNT CROSS

There are certain expenses connected with these schemes which, if the district council has to bear them, are spread over the immediate neighbourhood of the common; but if the common is vested in the county council the expenses are spread over the whole county, the majority of the inhabitants of which have probably never been near the common in their lives.

LORD DAVEY

The noble Viscount has not seen the effect of Section 3 of Clause 4. That section provides that, where a resolution has been passed by a county council under this section, the provisions of Section 63 of the Local Government Act 1894 shall have effect. If the noble Viscount will look at Section 63 of the Local Government Act of 1894 he will see that it is there provided that, where the county council acts in default of the district council, the county council has the right to charge the cost on the district council. I take it that that is the object for which Section 3 is inserted.

On Question, "That Clause 4 stand part of the Bill," resolved in the negative.

Clause 5:—

* VISCOUNT CROSS

This clause provides that a rural district council may delegate to a parish council any powers conferred on the district council in relation to any commons within the parish. I think the power so delegated ought to be confined to management only.

Amendment moved— In page 2, line 34, after 'powers' to insert 'of management.'"—(Viscount Cross.)

LORD DAVEY

The noble Viscount is probably aware that parish councils already have the power of management in regard to village greens expressly given to them by Section 8 of the Local Government Act of 1894, and I intend to move the insertion of a clause, at a later stage, to provide that nothing in this Bill shall prejudice that power.

On Question, "That these words be here inserted," agreed to.

Clauses 6 and 7 agreed to.

Clause 8:—

* VISCOUNT CROSS

I shall probably differ from my noble and learned friend (Lord Davey) with regard to this clause, which provides that a scheme under this Act may, with the previous consent in writing of the persons whose consents are required to a Provisional Order under the Inclosure Acts, 1845 to 1882, include provisions for "adjustment of rights" within the meaning of the Commons Act, 1876. The question of adjustment of rights is such a delicate and difficult one that I think it can be better dealt with under my Act of 1876 than by the Board of Agriculture in the manner proposed; therefore, I move to strike out Clause 8 altogether.

Amendment moved— In page 3 to leave out Clause 8."—(Viscount Cross.)

LORD DAVEY

I assumed in my observations that this clause would be struck out.

On Question, "That Clause 8 stand part of the Bill," resolved in the negative. Clause 9 amended and agreed to.

Clause 10:—

* VISCOUNT CROSS

Clause 10 provides that where any common is situated in the districts of two or more district councils the county council of the county within which the common is situated shall, in relation thereto, have all the powers conferred upon a district council in relation to any common within their district, and that the Act shall apply to the county council as if that council were a district council, and the management of the common shall he vested in the county council. It seems to me, and to the Government, that, if the common is situated in the districts of two district councils, the better course would be that those two district councils should work by a committee, as provided in the Local Government Act, 1894, and that the matter should not be referred to the county council at all.

On Question, "That Clause 10 stand part of the Bill," resolved in the negative.

Clauses 11, 12, and 13 agreed to.

Clause 14:—

* VISCOUNT CROSS

As we have done away with the county council, the words I propose to omit are unnecessary, and this is, therefore, a consequential Amendment.

Amendment moved— In page 4, to leave out from 'shall' in line 14 to 'case' in line 17."—(Viscount Cross.)

THE EARL OF KIMBERLEY

My noble friend said he had "done away with the county council." That seems to be the general desire in this matter, but I cannot see why this jealousy of the county council should exist.

On Question, "That these words stand part of the clause," resolved in the negative.

Clause 14, as amended, agreed to.

Clause 15 agreed to.

Clause 16:—

* VISCOUNT CROSS

My Amendment to this clause, though it strikes out the words "London County Council," is not in any way an attack upon that body. The following clause—Clause 17—provides that a scheme under the Bill shall not apply to any common which is the subject of a scheme made under the Metropolitan Commons Acts, 1866 to 1878, which the Department are of opinion work most satisfactorily, and which they would be very unwilling to see amended in this Bill.

Amendment moved— In page 4, line 32, after 'This' to insert 'Part of this'; and to leave out from 'apply' in line 32 to the end of the clause, and insert 'to the council of a county borough in like manner as if that council were the council of an urban district.'"—(Viscount Cross.)

On Question, "That the words proposed to be left oat stand part of the clause," resolved in the negative.

On Question, "That the words proposed to be inserted stand part of the clause," agreed to.

Clause 16, as amended, agreed to.

Clause 17 amended and agreed to.

Clause 18 amended and agreed to.

LORD DAVEY

I desire to move the insertion of a new clause providing that nothing in this Bill shall in any way prejudice the right of management of recreation grounds and village greens vested in parish councils by Section 8, Sub-section (1) (d), of the Local Government Act, 1894.

* VISCOUNT CROSS

I have not had time to refer to the clause, and would therefore suggest that the noble and learned Lord should put his Amendment down for the Standing Committee.

LORD DAVEY

Very well. I will do so.

Clause 19:

* VISCOUNT CROSS

This clause was framed some years ago to meet a special case. It has since been found possible to do without it, and as it is not now wanted I move its deletion.

Amendment moved— In page5, to leave out Clause 19."—(Viscount cross.)

On Question, "That Clause 19 stand part of the Bill," resolved in the negative.

Clause 20 amended and agreed to.

Clause 21:

LORD TEYNHAM

I beg to move the insertion of a new sub-section to provide that all the powers exercisable by the London County Council and other local authorities under the Open Spaces Acts of 1877 to 1890 may also be exercisable by the county council of any administrative county. The only county councils which at present possess these powers are the London County Council and the County Council of Middlesex. I think it will be admitted that the London County Council has made good use of its powers. Indeed, it may be said that the gratitude of Londoners is chiefly due to the council on account of the zeal it has displayed in acquiring open spaces and public parks in the neighbourhood of London. Middlesex obtained these powers under a private. Act last year, and, although so short a time has elapsed, it has already spent £20,000 in the acquisition of open spaces, and is now prepared to spend a further sum of upwards of £20,000. Every county council, of course, will not have the same opportunities as those of London and Middlesex, but the County Councils of Kent, Surrey, Hertfordshire, Essex, and the county councils of counties in which there are large manufacturing towns will be able to make good use of these powers. I see that the noble Viscount has an Amendment to strike out Clause 21.

* VISCOUNT CROSS

I have withdrawn my Amendment to strike out the clause.

LORD TEYNHAM

Then I hope the noble Viscount will accept my addition.

Amendment moved— After Sub-section (3) to insert new subsection: 'All the powers exercisable by the London County Council and other local authorities under the Open Spaces Acts, 1877 to 1890, may also be exercisable by the county council of any administrative county, and any expenses incurred by a county council under the said Acts shall he defrayed as expenses incurred under the Local Government Act, 1888.'"—(Lord Teynham.)

* VISCOUNT CROSS

I have no objection to offer to this Amendment, if it is agreeable to the House.

LORD BURGHCLERE

I have examined the Amendment, which I regard as an excellent one, and one which will greatly improve the Bill.

On Question "That this sub-section be here inserted," agreed to.

Clause 21, as amended, agreed to.

Remaining clauses agreed to.

Bill recommitted to the Standing Committee, and to be printed as amended [No. 161.]