HL Deb 12 February 1931 vol 79 cc994-1011

Amendments reported (according to Order).

Clause 1:

Schemes for preserving amenities of ancient monuments.

(2) Every preservation scheme shall define by reference to a map annexed thereto the area to which the scheme is applicable {hereafter in this Act referred to as "the controlled area") and mar provide for all or any of the following, matters, that is to say:—

  1. (a) for prohibiting or restricting the construction, erection or execution of buildings, structures and other works above ground within the controlled area, or the alteration or extension of any 995 such buildings, structures or works in such manner as materially to affect their external character;
  2. (b) for prescribing the position, height, size, design, materials, colour and screening, and otherwise regulating the appearance, of buildings, structures and other works within the controlled area;

(4) Nothing in any preservation scheme shall affect any building, structure or other work or any alteration or extension thereof, if it was constructed, erected or executed before the date when notice of intention to confirm the scheme was published in the London Gazette under the First Schedule to this Act, and for the purpose of this provision a building, structure or other work and any alteration or extension thereof shall he deemed to have been constructed, erected or executed before that date—

  1. (a) if its construction, erection or execution was begun before that date; or
  2. (b) if and so far as its construction, erection or execution was necessary for the purpose of performing a contract made before that date.

THE PARLIAMENTARY SECRETARY OF THE MINISTRY or TRANSPORT (LORD PONSONBY OF SHULBREDE)

My Lords, my first Amendment, in paragraph (a) of subsection (2), is purely drafting.

Amendment moved— Page 2, line 3, leave out ("character") and insert ("appearance").—(Lord Ponsonby of Shulbrede.)

THE EARL or CRAWFORD

My Lords, if the noble Lord thinks that there is no difference between "character" and "appearance," I should very much like to know what is in his mind. This seems to me a very material change, and anything but a drafting Amendment.

LORD PONSONBY oF SHULBREDE

My Lords, the noble Lord, Lord Cranworth, called attention to this point in Committee and, on his Motion, certain words were inserted. The Amendment is to make them correspond with the wording of paragraph (b). We thought it advisable to accept that.

On Question, Amendment agreed to.

LORD PONSONBY OF SHULBREDE moved, in subsection (2) (b), before "appearance," to insert "external." The noble Lord said: My Lords, this also is a drafting Amendment, consequent on the acceptance in Committee of Lord Cranworth's Amendment to paragraph (a).

Amendment moved— Page 2, hue 6, after ("the") insert ("external").—(Lord Ponsonby of Shulbrede.)

On Question, Amendment agreed to.

LORD PONSONBY OF SHULBEEDE moved, in subsection (2) (b), after "works," to insert "above ground.' The noble Lord said: My Lords, this is another drafting Amendment, consequent upon the acceptance in Committee of the Duke of Buccleueh's Amendment to paragraph (a).

Amendment moved— Page 2, line 7, after ("works") insert ("above ground").—(Lord Ponsonby of Shillbrede.)

On Question, Amendment agreed to.

VISCOUNT BERTIE OF THAME moved, after subsection (3), to insert: (4) Where after a public inquiry into a preservation scheme has been held, and the scheme has not been confirmed, no further preservation scheme or Preservation Order shall be made in respect of the same monumeat until after the expiration of five years from the date of the report of the person who held the inquiry into the preservation scheme.

The noble Viscount said: My Lords, owing to the disappearance of Clause 2 from the Bill as introduced, there is now nothing in the Bill to prevent Commissioners of Works from having continuous shots at getting preservation schemes through, and so gradually wearing down financially an opponent of their designs. It is true that they may be awarded costs, but they are to be taxed costs, and that probably would not cover the expense of the successful applicant.

Amendment moved— Page 2, line 24, at end insert the said new subsection.—(Viscount Bertie of Thame.)

LORD PONSONBY OF SHULBREDE

My Lords, I think the noble Viscount will realise that this is really a very hampering Amendment. To begin with, the reference to the Preservation Order is quite out of place in this clause. A Preservation Order deals with the actual monument, and the machinery for the Preservation Order is quite different from that for a preservation scheme, which deals with the surroundings of the monument. The noble Viscount will realise that after an inquiry has been held all sorts of reasons might emerge to make it desirable to postpone the making of a scheme for a year or two. It might appear there was some prospect of the local authority making a planning scheme to cover the particular area, or after a decision had been made not to confirm the scheme certain difficulties in the way might be removed and the scheme might be proceeded with. If the Amendment of the noble Viscount, even without mention of a Preservation Order, were inserted, it would be very hampering. T could not accept it.

On Question, Amendment negatived.

LORD PONSONBY OF SHULBREDE moved, in subsection (4), after the first "work," to insert "above ground." The noble Lord said: My Lords, this is a drafting Amendment consequent upon the acceptance of an Amendment in Committee.

Amendment moved— Page 2, line 20, after ("work") insert ("above ground").—(Lord Ponsonby of Shudlbrede.)

On Question, Amendment agreed to.

LORD PONSONBY OF SHULBREDE moved, after subsection (4), to insert: (5) Any person whose property is injuriously affected by the coming into force of a preservation scheme shall be entitled to obtain compensation in respect thereof from the Commissioners, subject to the provisions of the Second Schedule to this Act.

The noble Lord said: My Lords, I think my Amendment properly conies in here and that the Amendment in the name of the noble Viscount, Lord Bertie of Thame, would come in as an addition to mine. The effect of the rejection of Clause 2 was to leave the provisions for compensation out of the Bill altogether, and this clearly was not the intention of the House. Your Lordships' House clearly intended that whenever a man considered that his property was injuriously affected by a scheme he should have a right to claim compensation, and to have his claim considered and settled under the Acquisition of Land (Assessment of Compensation) Act, 1919. That was the intention which was made apparent on the Committee stage, and it is with a view of carrying that out that this Amendment is proposed to be inserted. The Government are not going to press their proposal any further, but accept the decision come to on the Committee stage. They have also reluctantly agreed not to re-introduce the provision for the payment of betterment, not that the Government are convinced that the principle is not an important one, hut the cases in which it could be likely to arise under this particular Bill would be so very few that it seems desirable to make the machinery as simple as possible. I beg to move.

Amendment moved— Page 2, line 39, at end, insert the said new subsection.—(Lord Ponsonby of Shutbrede.)

LORD DANESFORT

My Lords, before the Question is pat might I ask whether the old Act provides that the means for compensation will be forthcoming? I suppose it only can be forthcoming by vote of Parliament, hut is there provision in the prey ions Act for compensation out of moneys provided by Parliament?

LORD PONSONBY OF SHULBREDE

I would rather prefer to answer that question at a later stage. I should not like to commit myself on the point.

On Question, Amendment agreed to.

VISCOUNT BERTIE or THAME moved, after the last-mentioned Amendment, to insert: "In this section 'injuriously affected' includes any restriction imposed by any provision of a preservation scheme upon the use of any property affected by the scheme." The noble Viscount said: My Lords, "injuriously affected" is an exceedingly ambiguous term. In Stroud's Judicial Dictionary there are no fewer than three pages of authorities for finding what it is and what it is not. I am not going to read the whole of those three pages, but it does start them by saying this:— The complex meaning of this phrase has probably never been more clearly explained than by Baron Bramwell.

I do not think it is at all clear that "injuriously affected" would cover a restriction of the user by a person within the area. I know that it is subject to an Amendment in the Schedules proposed by Lord Ponsonby which brings it to arbitration, but look at the expense of arbitration when you have three pages of cases to go into. It might even come up to the Judicial Committee of this House for decision, and that would be a tremendous expense to the wretched opponent of a scheme. I beg to move.

Amendment moved— Page 2, line 39, after the last-mentioned Amendment, insert the said words.—(Viscount Bertie of Thorns.)

LORD PONSONBY OF SHULBREDE

My Lords, I am sure you are grateful to the noble Viscount for having restrained himself from reading out. the three pages of the dictionary, but without going into the niceties of the actual meaning of the words I think they do now occur in more than one Statute, and notably in the Town Planning Act, 1925. A far greater restriction can be imposed by plans under that Act than is possible under this Bill, and although this section of the Town Planning Acts has been on the Statute Book for over 20 years, it has never been questioned that the words "injuriously affected" are not wide enough to cover all the restrictions that can be imposed. If this Amendment were carried it would give compensation to a man for a restriction imposed by a scheme whether that restriction injured him or not, and this, I think, would introduce an entirely new principle into the law of compensation which the Government are unwilling to accept.

On Question, Amendment negatived.

Clause 4:

Amendments as to Preservation Orders.

4.—(1) Section six of the principal Act shall have effect in relation to any Preservation Order made after the commencement of this Act as if for subsection (3) thereof (which relates to the duration and confirmation of Preservation Orders) there were substituted the following subsections, that is to say:—

"(3A) If within three months after the publication of the Order in the London Gazette any person, who appears to the Commissioners to have an interest in the monument, gives notice in writing to the Commissioners that he objects to the Order, the Order shall, if the objection is not withdrawn, cease to have effect upon the expiration of a period of two years from the making thereof unless it is confirmed by Parliament, but in any other case the Order shall, without confirmation by Parliament, have effect until re-yoked by an order made by the Commissioners in like manner as the original Order.

"(3B) Where under the foregoing provisions of this section a Preservation Order ceases to have effect by reason of its not being confirmed by Parliament, no further Preservation Order shall be made in respect of the same monument until after the expiration of three years from the date on which the former Order ceased to have effect."

VISCOUNT BERTIE OF THAME moved in the substituted subsection (3A), to leave out "two years" and insert "eighteen months." The noble Viscount said: My Lords, under Section 6 of the Ancient Monuments Act, 1913, a Preservation Order may be made by the Commissioners of Works if an ancient monument is in danger of destruction or damage. A Preservation Order so made under the Act of 1913 has effect for eighteen months, but it then lapses unless it has been confirmed by Parliament after examination by a Select Committee, before which a petitioner against the Order being confirmed is allowed to appear and to oppose the Order, as in the case of a Private Bill. If a Preservation Order is not so confirmed by Parliament no further Preservation Order with reference to the same monument can be made until after the expiration of five years. That is the procedure under the old Act.

The present Bill proposes to alter this provision in this way. In the first place the Commissioners have to publish an Order and serve a copy on the owner and occupier of the monument. Secondly, if within three months any person who has an interest in the monument objects to the Order, the Order is to lapse at the end of two years, unless it is confirmed by Parliament. Thirdly, if an Order is not confirmed by Parliament it is proposed that no new Order shall be made for three years instead of five years, as in the old Act. Exactly the same proposals were included in the present Bill as introduced in respect of preservation schemes, for the making of which power is given under Clause 1 of the present Bill. They were objected to and omitted from the Bill on the Committee stage. There is no reason whatever for applying the provisions to Preservation Orders under the Act of 1913. It is proposed by my Amendments to accept the procedure proposed by the Bill but to leave the periods of eighteen months and five years as they stand under the existing law. Eighteen months suspense and uncertainty, with an expensive Parliamentary inquiry, is surely sufficient, and certainly no one after defeating a proposed Order, after a Parliamentary inquiry, ought to be exposed to another shot from disappointed Commissioners within a period of five years. This Amendment merely puts the periods of the 1913 Act into this Bill instead of shortening them. I beg to move.

Amendment moved— Page 5, line 12, leave out ("two years") and insert ("eighteen months").—(Viscount Bettie of Thame.)

LORD PONSONBY OF SHULBREDE

My Lords, I think the noble Viscount, described the procedure of the 1913 Act quite correctly. The Preservation Order has to be confirmed by Parliament within eighteen months or it ceases to have effect, and the confirmation has to be by means of a Bill, which the Commissioners of Works are under an obligation to introduce. The Bill goes through. Private Bill procedure, and the period of eighteen months is therefore not too long for the completion of this rather elaborate process. Clause 4 of this Bill provides that a confirming Act shall only be necessary if, within three months of the making of a Preservation Order, some interested party gives notice in writing to the Commissioners that he objects to the Order. Unless, therefore, the period of validity of an Order to which objection has been made is increased, the effective time within which the Bill must be prepared and passed would be reduced to fifteen months, taking three months off the period of eighteen months to which I have already referred. This might very well not be long enough. To take three months off the period of two years would leave a sufficient time for the necessary formalities to be gone through. So I fear I cannot accept the noble Viscount's Amendment.

LORD BANBURY OF SOUTHAM

My Lords, this is rather a reasonable proposal. I do not know why the owner of an ancient monument should wait about for two years, not knowing exactly what his fate is going to be. If the eighteen months is too long will the noble Lord accept twenty-one months, which would meet his point about the three months?

LORD PONSONBY OF SHULBREDE

My Lords, I quite agree that there is something in the noble Lord's suggestion, but on the whole I prefer the Government's suggestion of two years.

VISCOUNT BERTIE OF MAME

My Lords, if the noble Lord will not com- promise I think. I must press the Amendment to a Division.

On Question, Amendment agreed to.

VISCOUNT BERTIE OF THAME moved, in the substituted subsection (3B), after the second "Order," to insert "or preservation scheme." The noble Viscount said: My Lords, the object of this Amendment is to give protection, after an attempt to get a Preservation Order has been disapproved by Parliament, against the Commissioners proceeding by a preservation scheme under the Bill. Why is it necessary for the Commissioners to have two forms of procedure, first, the existing procedure for a Preservation Order under the Act of 1913, and, secondly, a preservation scheme under the present Bill? Incidentally it may be noticed that under the Act of 1913 there does rot appear to be any provision for compensating a person whose property is injuriously affected by the making of L Preservation Order under that Act. As a Preservation Order, if opposed, has to go before Parliament presumably a Select Committee would have power to approve the Order, subject to the payment of proper compensation in respect of injurious affection.

Amendment moved— Page 5, line 22, after ("Order") insert ("or preservation scheme").—(Viscount Bertie of Thame.)

LORD PONSONBY OF SHULBREDE

My Lords, I am afraid this Amendment is entirely unacceptable, because this clause deals only with Preservation Orders, and we do not want to mix matters. We want to keep distinct the two sets of procedure, under preservation scheme's and Preservation Orders. It would only confuse matters to insert a preservation scheme here.

On Question, Amendment negatived.

VISCOUNT BERTIE OF THAME moved, in the substituted subsection (3B), to leave out "three" and insert "five." The noble Viscount said: My Lords, this is more or less the same point that I argued before.

Amendment moved— Page 5, line 24, leave out ("three") and insert ("five").—(Viscount Bertie of Thame.)

LORD PONSONBY OF SHULBREDE

My Lords, I accept this.

On Question, Amendment agreed to.

Clause 3:

Amendment as to voluntary contributions.

5.—(1) The Commissioners shall have power under Section nine of the principal Act to receive voluntary contribution, towards the cost of the maintenance and preservation of any ancient monument, and to enter into any agreement with the owner of any such monument or with any other person as to the maintenance and preservation of the monument and the cost thereof, notwithstanding that the Commissioners are not the owners or guardians of the monument.

(2) For the purpose of the said section, the expression "preservation of the monument" shall include the preservation of the amenities of the monument.

VISCOUNT BERTIE OF THAME moved, in subsection (1), to leave out "or" and insert "and." The noble Viscount said: My Lords, this point was gone into on the Committee stage. I moved then to leave out "or any other person." I had the support of my noble friend Lord Peel, who said that he thought the word "and" should be inserted. The noble Lord, Lord Ponsonby, said he would have the matter looked into between then and Report and I placed this Amendment on the Paper with the object of eliciting from him the result of his inquiry. I beg to move.

Amendment moved— Page 5, line 36, leave out ("or") and insert ("and").—(Viscount Bertie of Thame.)

LORD PONSONBY OF SHULBREDE

My Lords, the noble Viscount is correct in what he says; but on examining into the matter more closely we find that there are cases where an agreement with the owner would be unnecessary. For instance, say that a monument is let on a long lease, the Commissioners would want to make an agreement with the lease-holder alone. During the period of his lease, which might be a very long one, he, and not the owner, would be the person entitled to give the Commissioners powers for maintenance and preservation. When the owner resumed possession at the expiration of the lease, an agreement between the tenant and the Commissioners would not be binding on the owner and the owner would be in a position to make a perfectly fresh agreement.

If the monument- was let on a short lease the Commissioners would be sensible enough, of course, to take into account the owner and to make an agreement with him. Failing their doing so, the owner would not in any way be bound, and when he came into possession of the property at the end of the lease he would be able to make a fresh agreement. It might be difficult in some cases, in the case of a very long lease, for example, to bind the owner. It might be undesirable to do so. Therefore, on the whole, if the noble Viscount would not press his Amendment, I think we should prefer the words to he as they are in the Bill.

EARL PEEL

My Lords, I do not know whether the noble Lord would say "the owner or lease-holder as the case may be." The words "or with any other person" seem to be so vague. They do not suggest that the other person has any interest in it. Would not "the owner or the lease-holder as the case may be" cover both cases?

LORD PONSONBY oF SHULBREDE

I think there might be other people to take into account in the case of societies or companies, who might not quite fit into the category of lease-holder.

EARL PEEL

My Lords, "or other persons having an interest" or some words of that kind, would do, would they not? The words used are so vague.

LORD PONSONBY oF SHULBREDE

I will consider it.

EARL PEEL

The noble Lord will consider it?

LORD PONSONBY oF SHULBREDE

If the noble Viscount will leave the words as they are, I will see whether they can be made a little clearer.

VISCOUNT BERTIE OF THAME

My Lords, if the noble Lord will undertake to put down an Amendment to that effect, I will ask leave to withdraw my Amendment.

LORD PONSONBY OF SHULBREDE

If I can find words to cover the phrase of the noble Earl, I will see that they are put on the Paper.

Amendment, by leave, withdrawn.

Clause 6:

Amendments as to lists of ancient monuments.

6.—(1) Before including any monument in a list published under Section twelve of the principal Act after the commencement of this Act, being a monument which was not included in a list published under that section before the commencement of this Act, the Commissioners shall, instead of informing the owner as required by subsection (1) of that section, cause to be served upon the owner of the monument and upon the occupier thereof (if any) a notice in writing of their intention to include the monument in the list.

VISCOUNT BERTIE OF THAME moved, in subsection (1), after the second "owner," to insert "and mortgagee (if any)." The noble Viscount said: My Lords, I am not sure whether these words would he a useful addition to the Bill or not. If they are not useful I will not press the Amendment.

Amendment moved— Page 6, line 8, after ("owner") insert ("and mortgagee (if any)").—(Viscount Bertie of Thame.)

LORD PONSONBY OF SHULBREDE

My Lords, I would rather the noble Viscount did not press his Amendment here. The question of the mortgagee will arise on a later Amendment which I have on the Paper, where it can be more fully discussed.

LORD DANESPORT

The mortgagee might be in possession. If he is in possession, he surely ought to be consulted.

LORD PONSONBY of SHULBREDE

My Lords, if the noble Lord would bring up that point on my Amendment with regard to the mortgagee, I think it would be more convenient.

Amendment, by leave, withdrawn.

Clause 9:

Power of Commissioners to enter upon lands.

9.—(1) Subject as hereinafter provided, the Commissioners, and any person specially authorised in writing by them in that behalf, may for the purposes of investigation enter upon any land which the Commissioners have reason to believe contains an ancient monument, and may make excavations in the lard for the purposes of examination: Provided that—

  1. (a) no person shall, under the powers conferred by this section, enter any dwelling-house or any park, garden, 1006 pleasure ground or land otherwise used for the amenity or convenience of a dwelling-house except with the consent et' the occupier; and
  2. (b) no excavation shall be made under the said powers except with the consent of every person whose consent to the making of the excavation would, apart from this section, he required.

(2) If any person wilfully obstructs or hinders the Commissioners or any person duly authorised by them who has produced his authority in writing to him in the exercise of the powers conferred by this section, be shall be liable on summary conviction to a fine not exceeding five pounds.

LORD PONSONBY OF SHULBREDE moved, in subsection (1), to leave out "the Commissioners, and any person specially authorised in writing by them in that behalf, may for the purposes of investigation enter," and to insert "any person specially authorised in writing in that behalf by the Commissioners, after giving not less than seven days' notice in writing to the occupier of his intention so to do and on production of his authority if so required by or on behalf of the occupier, may enter for the purposes of investigation at all reasonable times." The noble Lord said: My Lords, I undertook in Committee to amend this clause with a view to meeting points raised by a number of noble Lords, and I move this Amendment with the object of meeting them.

Amendment moved— Page 8, line 13, leave out from ("provided") to ("upon") in line 16, and insert the said new words.—(Lord Ponsonby of Shulbrede.)

LORD DANESFORT

My Lords, might I ask whether seven days is not rather a short time in which to give notice There is no violent hurry about it, and it is an important matter. Surely fourteen days would not be too long. That would cause no undue delay and it would give the owner more opportunity of considering the question. I would move, if the noble Lord would accept it, to leave out "seven" in order to insert "fourteen."

Amendment to the proposed Amendment moved— Leave out ("seven") and insert ("fourteen").—(Lord Donesfort.)

LORD PONSONBY OF SHULBREDE

My Lords, in practice probably the notice given would be very much longer. If the noble Loud prefers fourteen days notice I do not think there is any objection to it.

On Question, Amendment to the proposed Amendment agreed to.

On Question, Amendment, as amended, agreed to.

LORD PONSONBY OF SHULBREDE moved, in proviso (a) in subsection (1), before "park," to insert "building." The noble Lord said: My Lords, I under-took in Committee to make this Amendment and the noble Viscount withdrew an Amendment of his own on that condition. I beg to move.

Amendment moved— Page 8, line 23, after ("any") insert ("building").—(Lord Ponsonby of Shulbrede.)

On Question, Amendment agreed to.

LORD PONSONBY OF SHULBREDE

My Lords, the next Amendment is drafting. I beg to move.

Amendment moved— Page 8, lines 32 and 33, leave out ("the Commissioners or").—(Lord Ponsonby of Shulbrede.)

On Question, Amendment agreed to.

LORD PONSONBY OF SHULBREDE

My Lords, the next Amendment is also drafting. I beg to move.

Amendment moved— Page 8, line 33, leave out ("them") and insert ("the Commissioners").—(Lord Ponsonby of Shulbrede.)

On Question, Amendment agreed to.

Clause 11:

Registration of land charges created with respect to ancient monuments.

11. As from the commencement of this Act, the provisions of the Land Charges Act, 1925, as amended by any subsequent enactment, shall apply to the following instruments as if they were local land charges, that is to say:—

  1. (a) any deed or order, whether executed or made before or after the commencement of this Act, constituting the Commissioners or a local authority guardians of an ancient monument; and
  2. (b) any preservation scheme or notice of intention to confirm such a scheme; and
  3. (c) any Preservation Order, whether made before or after the commencement of this Act; and
  4. (d) any notice served on the owner of a monument, being a notice of intention to include the monument in a list published after the commencement of this Act under Section twelve of the principal Act, and any en try in a list published before the commencement of this Act 1008 under that section, recording the inclusion of a monument in that list;
and every such instrument shall be registered accordingly by the proper officer of the council of every county borough, county district or metropolitan borough comprising any part of the land affected by the instrument and, in a case where any part of that land is comprised in the City of London, by the proper officer of the Common Council:

Provided that nothing in the foregoing provisions of this section shall operate so as to impose any obligation to register any such instrument executed, made or served before the commencement of this Act until the expiration of three years from the commencement of this Act, or so as to discharge a purchaser from liability in respect of any such instrument which is not for the time being required to he registered.

VISCOUNT BERTIE OF THAME moved to omit the proviso. The noble Viscount said: My Lords, the object of this Amendment is to ascertain the reason for the proviso. Is it to be understood that the clause imposes the duty of registering charges created with respect to ancient monuments (which have not hitherto been required to be registered) and that the only object of the proviso is to give a period of three years for instruments of charge under the Ancient Monuments Act made before the present Act comes into operation, to be registered, leaving meanwhile such instruments subject to the law as it stands? I beg to move.

Amendment moved— Page 9, leave out from beginning of line 39 to end of line 4 on page 10.—(Viscount Bertie of Thame.)

LORD PONSONBY OF SHULBREDE

My Lords, the noble Viscount is under a misapprehension. This clause is a concession to purchasers and nowhere imposes any restriction upon them at all. At present all the existing instruments referred to in the proviso are binding on purchasers whether they are registered or not. It is felt that this is sonic hardship on the purchasers and that they ought to be given notice in the usual way of registration. The clause was introduced with this object alone. If the noble Viscount is satisfied with that, I will not enter into a further detailed explanation of the clause.

VISCOUNT BERTIE OF THAME

My Lords, after that explanation, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 14:

Interpretation.

(3) For the purposes of this Act and of Section six of the principal Act, the expression "owner" in relation to a monument shall mean any person entitled to dispose of the fee simple of the site of the monument.

LORD PONSONBY OF SHULBREDE snored, in subsection (3), after "person" to insert "(other than a mortgagee in possession)." The noble Lord said: My Lords, this, I think, will be the place for Lord Danesfort to make his suggestion. The object of this particular Amendment is to confine the definition of "owner" to persons who have really an effective control of the freehold. The definition of "owner" is required for the purposes of Section 6 of the principal Act, and for Cause 6 of this Bill—that is to say, for the purpose of the provisions dealing with service of notice of Preservation Orders, and notices of inclusion in the list. The object of Preservation Orders and of in-chiding monuments in the list is to preserve monuments from harmful treatment. It is considered that notice ought to be served only on those persons who are entitled to do the acts from which protection is sought. That person is the person who has the effective control of the freehold. A mortgagee who is not in possession has not effective control of the freehold. He is not entitled to do the acts from which protection is sought under this Bill, and therefore it is desired to exclude him from this definition. To give him notice would mean very great delay, and really in some cases would frustrate the object of the clause, because, as your Lordships are aware, in many of these cases the Commissioners have to act with the greatest rapidity, and unless the mortgagee is excluded from this definition it would make the procedure in some cases clumsy and dilatory.

Amendment moved— Page 11, line 29, after ("person") insert ("(other than a mortgagee not in possession)").—(Lord Ponsonby of Shulbrede.)

LORD DANESFORT

My Lords, I think, if I may say so, the noble Lord is right in the view he puts forward that it would be unreasonable to require notice to be serve0 upon a mortgagee not in possession, but is it quite certain that the words he has suggested would cover the case of a mortgagee in possession? In other words, would the Bill, if altered in the way he desires, make it compulsory to serve a mortgagee in possession? I am not quite sure, and perhaps he would consider that between now and the Third Reading. It is, I think, quite reasonable and right that if a mortgagee is in possession, having control of the property, he should be served, but would the noble Lord see that it is quite clear that he will be served? I do not go into any legal argument about it. Your Lordships will see that the particular person entitled to dispose of the fee simple of the site may not include a mortgagee in possession, because the mortgagee is not entitled to dispose of the fee simple so long as the mortgage is kept up. There is a provision in the deed that until the interest falls into arrear the mortgagee is not entitled to any remedy—to sell or come into possession or anything of that sort. Perhaps the noble Lord would kindly promise to get proper advice so that the mortgagee in possession shall receive the notice.

LORD PONSONBY OF SHULBREDE

My Lords, I will certainly do that, but, although I do not for a moment want to pose as a lawyer, I do think it is perfectly clear that if the mortgagee is in possession he has effective control over the freehold, and therefore, he is the person that would be dealt with; but I will see that it is made pefectly clear.

On Question, Amendment agreed to.

LORD PONSONBY OF SHULBREDE moved, in subsection (3), after "entitled," to insert "either with or without the consent of any other person." The noble Lord said: My Lords, I think after the discussion we have just heard that this may be regarded as a drafting Amendment.

Amendment moved— Page 11, line 29, after ("entitled") insert ("either with or without the consent of any other person").—(Lord Ponsonby of Shulbrede.)

On Question, Amendment agreed to.

Clause 15 [Special Provisions as to Scotland]:

LORD PONSONBY OF SHULBREDE

My Lords, the first Amendment on this clause is drafting.

Amendment moved— Page 11, line 40, leave out from ("Gazette") to the end of line 42.—(Lord Ponsonby of Shulbrede.)

On Question, Amendment agreed to.

LORD PONSONBY OF SHULBREDE

My Lords, the next is also drafting, designed to meet the difficulty with regard to monuments in Scotland.

Amendment moved— Page 12, line 17, leave out from ("to") to ("area") in line 15, and insert ("any such monument which is heritable or to any such").—(Lord Ponsonby of Shulbrede.)

On Question, Amendment agreed to.

LORD PONSONBY OF SHULBREDE moved, after subsection (5), to insert:— (6) When any such instrument as is mentioned in the immediately preceding subsection is revoked or cancelled or ceases to have effect, it shall be competent to register in the appropriate register of sasines the deed or order by which such cancellation is effected, or a copy thereof certified by the Commissioners, or a certificate by the Commissioners that the instrument has ceased to have effect.

The noble Lord said: My Lords, this also is as far as the Act applies to Scotland.

Amendment moved— Page 13, line 9, at end insert the said subsection.—(Lord Ponsonby of Shulbrede.)

On Question, Amendment agreed to.

First Schedule: