§ Amendments reported (according to Order).
§ Clause 1:
§ Power to dispose of land free from restrictive covenant.
§ 1.—(1) Where land which, or an interest in which, has been acquired under the Defence of the Realm (Acquisition of Land) Act, 1916 (hereinafter referred to as the principal Act), was immediately before its acquisition subject to a restrictive covenant which before the fourth day of November, nineteen hundred and twenty, had lawfully been contravened in pursuance of the powers conferred by section four of that Act, and the land or interest therein is disposed of in pursuance of the powers conferred by section five of that Act, it may be disposed of free from the restriction imposed by the covenant, and shall be deemed to have been so disposed of, if expressed to be disposed of in pursuance of the powers conferred by the principal Act and this Act but not otherwise.
§ (2) Where any such land or interest is disposed of free from such restriction, no person shall have the right of enforcing the covenant against the person to whom the land or interest is disposed of or his successors in title, but if at any time after such disposition any person who, but for this section, would have had a right to enforce the covenant, establishes such right, there shall be paid to him compensation to be determined in manner provided by the Lands Clauses Act as modified by the principal Act and the Acquisition of Land (Assessment of Compensation) Act, 1919, with respect to interests in lands which have been omitted to be purchased, and upon payment of such compensation the right shall, as against him and all persons deriving title through him be absolutely discharged:
§ Provided that in assessing the compensation, the official arbitrator shall taken into consideration any compensation which may have been paid or be payable in respect of the covenant under section four of the principal Ac:
400§ Provided further that this section shall not apply to any restrictive covenant entered into for the protection and maintenance of any building scheme or for the preservation of the amenities of any dwelling-house in the occupation of a person entitled to enforce such covenant.
§ (3) In the application of this section to Scotland "restrictive covenant" shall mean any obligation imposed by way of real burden or reservation or condition running with or affecting the land, whereby any restriction on the alienation or transfer of possession of the land, or on the use or enjoyment thereof, is effected.
§ THE UNDER-SECRETARY OF STATE FOR WAR (VISCOUNT PEEL) moved, at the beginning of subsection (1), after "has been" ["has been acquired"], to insert "or is hereafter." The noble Viscount said: This is in the nature of a drafting Amendment, to make it quite clear that this section should apply to land subsequently acquired for the purpose of being re-sold. That is the intention of the Bill.
§
Amendment moved—
Page 1, line 6, after ("been") insert ("or is hereafter").—(Viscount Peel.)
§ LORD PARMOORI should like to have a little further explanation, because it appears to me that this is not merely a drafting matter and that the words very materially extend the effect of the Bill. If I am wrong the noble Viscount can convince me of it. "Where land which, or an interest in which, has been acquired under the Defence of the Realm (Acquisition of Land) Act" then certain matters follow. The main part of the noble Viscount's argument when this matter was under discussion was that the land had been acquired under circumstances which would place a heavy tax on the taxpayer without certain privileges attaching to the land which had, in fact, been so acquired. Surely it is a different matter to extend this provision, not to land which has been acquired but to land which may be acquired in the future. All the special conditions (as I may call them) which attached, no doubt, to the acquisition of land during war time have gone by now, and when you are dealing with land to be acquired hereafter that appears to me to be merely the result of an official desire to overrule the ordinary principles of law in acquiring land. I dare say the noble Viscount will explain that.
§ VISCOUNT PEELI did explain it at some length on the Committee stage 401 One of the objects of this Bill, as I then explained, was to enable the Government to acquire land on which large factories had been erected, in order that those factories, with the land, might then be disposed of. I pointed out that unless this was done the factories would enure to the landowner, and that factories costing half-a-million pounds, we will say, with machinery, would thus be made a present of to the landowner. This land in many cases has not yet been acquired, and what the Government want to do in this Bill is to have the power—as they thought they had—of acquiring the land on which these factories stand for the purpose of re-sale. Therefore it is clear that if they could not acquire land within the next two years the whole effect and object of the Bill, of which your Lordships have passed the Second Reading, would be defeated.
§ VISCOUNT CHAPLINWhen the noble Viscount said this is intended to enable the Government to acquire works valued possibly at millions I should like to remind him of a case which occurred not very long ago on which there was a great controversy between Lord Rosebery and the Government. At that time a quantity of rubbish had been left on the land. Are the Government going to pay compensation when they deposit, rubbish on the land, as was done in that case?
§ VISCOUNT PEELFull compensation will, of course, be paid in all those cases.
§ LORD PARMOORI understand the noble Viscount wishes to limit this power to cases where there are works already existing on land and where the land itself has not been acquired.
§ VISCOUNT PEELThat is the sole object of the whole Bill. It is for the purpose of acquiring that and that the Bill is introduced.
§ On Question, Amendment agreed to.
§ LORD PARMOOR had on the Paper an Amendment in subsection (1), after "restrictive covenant" to insert "which has been already lawfully infringed before the coming into force of this Act." The noble and learned Lord said: The noble Viscount has put down an Amendment which really is in accordance with my own Amendment. I quite accent his Amend- 402 ment. He pointed out before that he thought the words should be wider, and it should be left without the limiting words at the end. I entirely agree with him, and I think his words are better.
§ VISCOUNT PEEL moved, in subsection (1), to leave out "in pursuance of the powers conferred by Section 4 of that Act." The noble Viscount said: The object of this Amendment is to make square the Amendment carried by Lord Malmesbury. The Government was against that Amendment, but it is impossible to leave the noble Earl's Amendment as it was, because it only gave a special privilege to cases of land taken under Section 4. As most of it was taken under the Defence of the Realm Regulations the Amendment did not really achieve the object which the noble Earl aimed at, and I am merely moving this Amendment in the interests of those who carried that Amendment in the Committee stage against the Government, rather than in the Government's interests.
§
Amendment moved—
Page 1, line 10, leave out from ("contravened") to the end of line 11.—(Viscount Peel.)
§ VISCOUNT CHAPLINThe effect of this Amendment, as far as I understand it, is merely to leave out as Amendment which was carried by a large majority of this House only a few days ago.
§ VISCOUNT PEELNo, no; the noble Viscount is quite wrong. The effect of the Amendment is to give reality to the Amendment which was carried by your Lordships. It does not contravene the Amendment. It only makes it apply to all cases instead of to the few to which it applied when it was carried by your Lordships.
§ On Question, Amendment agreed to.
§
VISCOUNT PEEL moved to omit from subsection (2) the last proviso, and to insert the following new subsection:—
()Any person entitled to the benefit of any restrictive covenant affected by this section may, within six months after the passing of this Act, apply to the Railway and Canal Commission for an order that this section shall not apply to that covenant on the ground that the maintenance of the covenant is necessary or desirable for the protection of any building scheme or for the preservation of the amenities of any dwelling-house in the occupation of the applicant, and the Commission, if satisfied that having regard to all
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the circumstances it is desirable to do so, may make an order accordingly, or may refuse to make such an order, or may make an order modifying the restrictions imposed by the covenant:
Provided that where it is proposed to dispose of any land or interest in land affected by any such covenant before the expiration of the said period d of six months, the occupying department shall take such steps as may be required by the Commission for notifying the proposed disposal to the persons entitled to the benefit of any such covenant, and thereupon the land or interest may be sold free from the restrictive covenant unless that person within such time as the Commission may prescribe makes an application under this subsection, in which case the land shall not be so sold until the application is disposed of.
§ The noble Viscount said: Your Lordships will remember that an Amendment was carried against the Government saying that this clause should not apply to any restrictive covenant entered into for the protection and maintenance of any building schemes or the preservation of the amenities of a dwelling-house. That Amendment was moved by the noble and learned Lord, Lord Sumner, and I pointed out at the time that if it was carried it would render it impossible for the Government to sell a large number of the factories which had been erected on land subject to these restrictive covenants. Unfortunately it was carried against the Government, with great loss to the taxpayer. It is not a question of getting a less price. It is a question whether the buildings could be disposed of at all.
§ In the course of the discussion in Committee I threw out a hint which was, I think, favorably received by Lord Selborne and other noble Lords on the Bench opposite, that instead of having this very drastic prevention of the Government doing anything at all the question of whether or not these covenants should be infringed (subject of course, to full compensation) should be placed before the Railway and Canal Commission. The Commission would be in a position to say, "It is true you are going to pay compensation, but the case is so hard as regards the amenities of the dwelling-house or the building scheme that you ought not to do it." The matter would be entirely before the Railway and Canal Commission, and the Amendment I propose provides the machinery for doing this.
§ In the first part of the new subsection those people who have these rights can go within six months to the Railway and Canal Commission and establish them, and 404 The Commission, if it thinks fit, can say that their claim is absolute and that the Government, therefore, cannot buy them out. Their restrictive covenant is retained. The second part of the new subsection provides that if the authority before the six months are out desires to acquire the land free of restrictive covenants, then they must go before the Railway and Canal Commission. They notify the proposed disposal in such a way as is determined by the Commission; and again the matter is decided by the Commission. The effect of the Amendment is this. There will be judicial discretion left to the Railway and Canal Commission to say whether these restrictive covenants shall be abolished after compensation is paid or whether they shall be retained.
§ This I offer as a "half-way house" between the Amendment moved by Lord Sumner and the proposal of the Government. I do not put it forward with great enthusiasm. It means delay; and when I suggested it to those interested they were appalled at the fact that there would be some loss of time and possible buyers might be put off. In addition, a good many officials who might otherwise have been demobilised will have to be retained. However, I hope that your Lordships will see your way to accept the Amendment.
§
Amendment moved —
Clause 1, page 2, leave cut lines 9 to 13, aid after line 13 insert the said new subsection.—(Viscount Peel.)
§ LORD SUMNERAlthough I am not one of the "noble Lords opposite" to whom the noble Viscount appealed, I was the mover of the Amendment which was carried on a Division last Thursday which the noble Viscount now invites the House to reverse.
§ VISCOUNT PEELTo alter.
§ LORD SUMNERNo, reverse; and I should like to say a few words about it before noble Lords opposite make up their mind on the subject. It is a sufficient indication of the bureaucratic nature of the proposal that is now put before your Lordships to point out that when the result of a full discussion and Division was as the noble Viscount says unfortunately decided against the Government the officials are consulted, and they proceed to draft something or other which is to be 405 Prefaced by a complete annulment of the Amendment your Lordships carried last week. I will say no more about the merits of that Amendment The difficulties of moving it were that we did not know the facts as the Department and the noble Viscount did. We had to assume that there were cases—we could not tell whether they were many or few—in which such a breach might be made in the system of restrictive covenants as would do great injustice to the individual; and if it did injustice to the individual, that is quite a sufficient answer to the plea that has been put before us that we were doing injustice to the taxpayer.
I will not detain your Lordships by going over the ground again. I will only draw your attention to what the present Amendment proposes. Haying got rid of the Amendment which was carried, the noble Viscount now proposes to give persons who are entitled to the benefit of restrictive covenants of the character referred to, not the right to stand outside this new measure altogether, but the right to apply within a strictly limited time to the Railway and Canal Commission and to ask that Commission whether, having regard to all the circumstances, they are to have the benefit of the covenants or not. He further proposes, n eases where the Department desires to sell the land within this period of six months, that instead of allowing the covenanters the full six months in which to decide what they will do, the occupying Department is to take steps as may be required by the Commission, to notify the proposed sale to the persons interested, and unless these persons take such steps as may be required in order to get the opinion of the Commission upon the matter the land may be sold free from the restrictive covenants without going before the Commission at all.
See what this proposes to do at the expense of persons who are having their rights interfered with by this Bill for the benefit of the Departments who have to dispose of these properties. First of all it gives them a strictly limited time within which to apply at all. Secondly, it assumes that they will know whether the Department is going to sell the property or is not, and they are to frame their course accordingly. If they do not know of this Bill when it is passed, I suppose the answer is that it is everybody's business to read 406 all the Acts of Parliament that are passed and find out with great promptitude whether one ought to go to a solicitor or not. It is perhaps to make a useless appeal to say that there are so many Acts of Parliament passed nowadays that nobody can read them all, and that they are so complicated and sometimes so badly drafted that nobody can hope to understand them all.
At any rate, the first obligation that this puts upon the covenantee is to say, "You must find out about this Act at your peril. If you fail to find out about it you will lose your rights." The second is that he has to lied out whether the Department proposes to sell or does not propose to sell, because if he does not know whether not the Department is trying to sell the premises, or whatever it is, he may perfectly reasonably say to himself, "Under the Act of 1916 I am going to get this land back with the old restrictive convenants attaching to it. Why should I stir? I have not heard that they are going to sell it. I will rely upon what I understand to be my rights under the Act of 1916. I do not come within this amending clause. "Unless the Departments are prepared to notify to everybody who is entitled to the benefit of such a covenant that they are proposing to dispose of the land or the buildings, or whatever it is, it is quite unfair, I submit, to expect a private person to decide whether he will take steps or not.
The third point is that the burden of taking steps is thrown upon the private person. He cannot get the benefit of the restrictive covenant under this proposal unless he spends his money and takes up his time by going, properly equipped with solicitor and counsel, to the Railway and Canal Commission and takes upon himself the burden of persuading that Commission that he is entitled to have his covenants left alone. I submit that it ought to be the other way about. The presumption ought to be that the covenants will not be discharged unless the disposing Department first of all inform everybody who is interested that the matter is going to be brought before the Railway and Canal Commission; secondly, take the initiative in going before the Railway and Canal Commission; and, thirdly —if they get what they want —when they have got what they want, pay all the costs of it. It is all very well to say that that is expending 407 Public money for the benefit of private persons; but it certainly is a very surprising way of treating landowners to enact that unless they go at their own cost and at their own instance, and with information which they must find out for themselves, to the Railway and Canal Commission—not a very inexpensive tribunal —and persuade that tribunal to let them have the benefit of the covenants they have entered into, those covenants shall be discharged. I suggest to the noble Viscount that before his Amendment can be made really fair to the persons with whom he is dealing he ought to introduce provisions at least meeting the objections which I have ventured to adduce.
§ VISCOUNT CHAPLINI think the extremely lucid speech of the noble and learned Lord who has just sat down has made a conclusive argument against the impropriety and injustice of the Amendment which is now suggested by the noble Viscount opposite. As far as I am concerned, I shall do my best to support the noble and learned Lord, though I do not think any further argument is needed on my part.
May I, however, say one word in reference to something that fell from the noble Lord who talked of all these Acts which have been passed with regard to the compulsory acquisition of land? In the whole course of my Parliamentary experience I have never known anything like it. My attention was first called to this by reading the Agriculture Bill which is still in the House of Commons. To my immense surprise, what did I find in connection with that Bill? I found that the measure, which is designed to affect all classes of the agricultural industry, is as a matter of fact mostly drafted by that highly intolerable method, so common in these days, of reference. And not only that, but of reference to seven or eight different measures which have been passed comparatively recently with regard to the compulsory acquisition of land, I think it about time a stop was put to this kind of thing, and as far as I am concerned any measure of this kind giving these powers to Departments with regard to land will be opposed to the best extent of my power at all events.
I cannot imagine what is the meaning of all this. Day after day and year after year Bills of this kind are placed upon the 408 Table—Bills which the agricultural public would never be able to understand under any circumstances whatever. It is not my business to refer to the Agriculture Bill now, but I will just say that having read the whole of it as carefully as I can, I am certain that no one but a trained Parliamentary expert can possibly understand what it means, having to refer to heaven knows how many different Acts of Parliament. It is a task which I cannot understand any Government having agreed to impose upon the agricultural public. As far as I am concerned, if I can get anybody to go with me I shall oppose this Amendment. A decision was arrived at by a very large majority in a good House the other day; now advantage is to be taken of a thin House like this to repeat it.
§ VISCOUNT PEELI am always very ready to take suggestions from your Lordships on these points, and I feel that there is some force in what the noble and learned Lord (Lord Sumner) has said. If he agrees to allow me to move out his Amendment, I will move an Amendment of this kind—that is to say, I will not press the first portion of my Amendment, and so alter the proviso that in all these cases the onus will, as he suggests ought to be the case, be laid upon the Government Department which wishes to acquire the land to give notice to the person interested; then the matter can come before the Railway and Canal Commission. I think that would meet the main point that he made, and I am quite ready to put down an Amendment on Third Reading carrying that out.
§ LORD SUMNERAs the noble Viscount has made an appeal to me, may I say that I cannot possibly undertake to form an opinion, still less to express it, on an Amendment orally suggested for the first time. This is a complicated matter. Surely if I have had the good fortune to make some impression on the noble Viscount and to induce him to admit that there may be some hardships in the proposal he has made, the right course would be for him to bring up a different proposal on the Third Reading—
§ VISCOUNT PEELThat is what I am proposing.
§ LORD SUMNER—and to leave this Amendment of mine standing until the 409 Third Reading, and then let us see on the Paper what the noble Viscount really is prepared to support.
§ THE EARL OF MIDLETONI appeal to the noble Viscount to withdraw the Amendment. Consider the position on Thursday night, which was the last night on which your Lordships sat. A definite decision was then come to. Many noble Lords were not even aware that the Government proposed to sit on Monday. Yet on the first day that we meet the noble Viscount proposes practically to undo the previous decision.
§ VISCOUNT PEELNo.
§ THE EARL OF MIDLETONWell, completely alter it; and Peers did not see the words until they came into the House to-day. I hope the noble Viscount will agree to withdraw the Amendment and deal with the question on Third Reading. In order to give him that opportunity I venture to move that the debate be now adjourned.
§ Moved, That the debate be now adjourned—(The Earl of Midleton)
§ VISCOUNT PEELI hope the noble Earl will not press that. I have already given an undertaking that I will bring up an Amendment on the Third Reading to carry out what the noble and learned Lord desires. I do not think I can be reasonably expected to do more, and I think the noble Earl might withdraw.
§ THE EARL OF MIDLETONRut the noble Viscount strikes OM the words inserted by the House.
§ VISCOUNT PEELI was perfectly ready to leave the thing as it is, and I have stated that twice already I do not think I can be expected to do more.
§ LORD SUMNERThe noble Viscount does not move?
§ VISCOUNT PEELI moved to leave out lines 9 to 13 on page 2, and I withdraw.
§ Motion for the adjournment of the debate, by leave, withdrawn.
§ Amendment, by leave, withdrawn
410§ Clause 3:
§ Provision as to acquisition and possession of land under the principal Act.
§
3.—(1) It is hereby declared that—
(a)the power of acquiring land or interest in land conferred by section three of the principal Act authorizes, and shall be deemed always to have authorized, such acquisition for the purposes of re-sale, in cases when such re-sale is required with a view to the realisation to the best possible advantage of the value of buildings and works erected or constructed wholly or partly at the expense of the State, or of any State which acted in alliance or in naval or military cooperation with His Majesty during the war, or when for any other reason it appears to the Railway and Canal Commission expedient in the financial interests of the State or of such State that the acquisition for such purposes should be authorised;
§ VISCOUNT PEEL moved, in subsection 1 (a), after "erected," to insert "executed." The noble Viscount said: This is drafting.
§
Amendment moved —
Page 3, line 8, after ("erected") insert ("executed").—(Viscount Peel)
§ THE EARL OF MIDLETONWill the noble Viscount tell us, as this is legislation by reference, whether the land which is involved in the Amendment includes common land?
§ VISCOUNT PEELNo, it does not include common land.
§ On Question, Amendment agreed to.
§
LORD PARMOOR moved, in subsection 1 (a), to leave out "to the Railway and Canal Commission." The noble and learned Lord said: I am afraid this is rather a technical point, but I think one of great importance on which the noble Viscount expressed a view when the matter was in Committee in your Lordships' House. We are dealing here with a new matter altogether; that is, the power to acquire land, or interest in land, for the purpose of resale. That is not authorised at present, and if land is to be acquired for a purpose of that kind it is obviously a wide purpose. During the Committee stage it was suggested that this ought not to be done without an appeal to the Railway and Canal Commission in all cases. I think it is clear that that is not provided for as
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the clause stands, because it goes on to say—
such acquisition for the purpose of re-sale, in cases when such re-sale is required with a view to the realisation to the best possible advantage of the value of buildings and works erected, executed or constructed wholly or partly at the expense of the State…or when for any other reason it appears to the Railway and Canal Commission…
Therefore, whatever may be the meaning of those words there was no intervention of the Railway and Canal Commission when the re-sale was required with a view to the realisation to the best possible advantage of the value of buildings and works. That is clear on the clause as it stands, and I think the noble Viscount recognised it in Committee. He stated then that in his view there ought to be such an appeal to the Commission in all cases and that he thought it existed under the 1916 Act. I travel with him so far. I have looked carefully into the 1916 Act and if he is right my words would be unnecessary, although I think the words of his clause ought to be re-formed. That might be a matter for subsequent consideration.
§ When I come to look at the 1916 Act I do not know that such a power of appeal does exist. If the noble Viscount would point out where he thinks it is I might agree with him and that might take away the necessity of pursuing my Amendment. We are agreed, I understand, as to what we want, and it is only a question of whether it is given or ought to be introduced. If the noble Viscount can satisfy me I would not press the Amendment.
§
Amendment proposed —
Page 3, line 13, leave out ("to the Railway and Canal Commission").—(Lord Parmoor.)
§ VISCOUNT PEELThe noble and learned Lord is perfectly right. We are agreed on the point. As I said in Committee, I was not quite certain whether the consent of the Railway and Canal Commission had to be sought in all these cases. I was at that time reading the section and had not in my mind the governing subsection in the Act of 1916, which I will read.
§ LORD PARMOORWhat section is that?
§ VISCOUNT PEELSection 13, subsection (5)—
Nothing in this Act shall authorise the compulsory acquisition of land without the consent 412 of the Commission where the purposes for which it is to be acquired are purposes other than those for which land can be acquired under the Defence Acts, 1842 to 1873, or the Military Lands Acts, 1892 to 1903.None of the cases falling under the clause are dealt with under the Defence Acts or the Military Lands Acts, and it therefore follows that they all fall under this subsection (5) and must be dealt with by the Railway and Canal Commission. May I say to the noble and learned Lord that I object to his word "appeal"? It suggests a Court from which you appeal. Nothing can be done without going to the Commission in the first instance.
§ LORD PARMOORI am much obliged. If that is so the words that I propose to leave out ought to be omitted, because Clause 8 brings in the Railway and Canal Commission in one case and not in the other. I assume that what the noble Viscount said about the Act is right; but in order to carry that out, as a matter of drafting and making it clear, the words I propose to leave out ought to be omitted. Then the whole matter would come under the principal Act.
§ VISCOUNT PEELI see the point of the noble and learned Lord, but I think it is surplus.
§ LORD PARMOORIt might be misleading, I think.
§ VISCOUNT PEELI will look into that point. I understood that it was because the financial interests of the State were brought in for consideration. If there is the slightest doubt about it I will put down an Amendment to omit the words.
§ LORD PARMOORHaving regard to the statement made, I withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 5:
§ Provisions as to retention of possession and acquisition of land belonging to railway companies, etc.
§
5.—(1) For paragraph (b) of subsection (2) of section thirteen of the principal Act, the following paragraph shall be substituted:—
(b) land belonging to any company or corporation carrying on a railway, dock, canal, water, or other public undertaking, other than—
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§ (2) Whore muter the said subsection the consent of the appropriate Government department to the retention of the possession of land mentioned in the said paragraph (b) is requested by the occupying department, the first-mentioned department, in determining whether consent shall be given, shall take into consideration the expediency of such retention for enabling the realisation to the best possible advantage of the value of buildings I works erected or constructed on the land wholly or partly at the expense of the State
§ VISCOUNT CHURCHILLOn behalf of Lord Clinton I do not move the three, Amendments standing in his name—to leave oat the clause, and to leave out subsections (1) and (2)—on the understanding, which I believe has been retched with the noble Viscount in charge of the Bill, that the words on page 5, line 14, after "date" to the word purpose "in line 16 be omitted, and in line 25, after the word "consideration," the words be omitted to the end of the paragraph, and the words "all the circumstances of the case" be added. I think that has been arranged.
§ VISCOUNT PEELThe next Amendment on the Paper is drafting.
§
Amendment moved—
Page 5, line 27, after ("erected") insert ("executed").—(Viscount Peel.)
§ On Question, Amendment agreed to.