HL Deb 16 May 1939 vol 112 cc1063-75

Order of the Day for the Second Reading read.

5.6 p.m.


My Lords, I beg to move that this Bill be read a second time. Many of your Lordships will be aware that during the last year or two there have been several serious inundations on the coasts of these islands. I need mention, perhaps, only one or two. There was at Horsey, in Norfolk, a very large inundation of the sea over low-lying land which caused a great deal of inconvenience, expense and anxiety. On the west coast, at Aberystwyth, there was inundation of a very much smaller area, but by reason of the fact that it was in a town, it was comparatively dangerous and extremely expensive to repair. I am not suggesting that either of those two instances can be definitely proved to have been due to the artificial removal of material from the shore, but I think it is beyond dispute that instances can be adduced in which it could be proved beyond any reasonable doubt that the excavation or removal of material from the shore does cause these incidents which are so unfortunate and expensive.

As I understand it, at any rate in the rural districts, there is no power at present in any national or local authority to protect private property from the ravages of the sea. That brings about a state of affairs which frequently proves to be very unfortunate. Most of the shore is in the hands of private landowners, many of them owning quite a small area of land. Many of these owners are not themselves wealthy enough to spend large sums on the protection of their own property and indirectly upon the protection of the property of their neighbours. On the other hand, other owners, whether rich enough to do so or not, unfortunately yield to the temptation of selling material such as gravel and sand and shingle off their shore, which does material damage, not only to their own property, about which they seem to care little, but to the property of others. In doing that they not only, as I say, endanger their own coast, but may also endanger the land behind away from the sea, and the coast and the property on either side. This land which abuts on the sea can be described, I suppose, as the front line trenches of the whole defensive system against a common and age-long enemy which necessitates constant effort in order to keep it within bounds. I submit that it is not right that a conscientious defender in this long- continued battle should be left unsupported physically and otherwise, and also outflanked, by other people who think only of their own private purses and pockets.

I say this because it is well known that the action of the sea, the action of the tidal stream, and possibly the wind also, cause a great movement of material laterally along the coast, and it therefore frequently passes from one owner's property to another, and unless proper steps are taken to protect the coast, much damage may be done by that movement. There must therefore, I submit, be concerted action, which is more difficult now than it used to be, because there are more landowners than there used to be along the coast. If that action is to be concerted and properly carried out, it must nowadays be public action. From that it follows—whether fortunately or unfortunately may be a matter of opinion—that private rights must be to a certain extent interfered with. It is recognised in law, I believe, that the Crown has a certain Prerogative in this matter—that is, in defending the realm against action from the sea—but that Prerogative has been very rarely, if ever, exercised. Whatever rights the Crown may have in that regard, it is plainly true that the Crown at present has no machinery—at any rate, no machinery ready to hand—to put into use in order to defend the coast against the sea. Only the local authorities and private individuals can at the present time take any reasonable steps to stop it, and local authorities and private individuals perhaps have narrow purses and are unwilling, through fear of the cost or otherwise, to take action in this matter.

In connection with the duties or Prerogatives of the Crown, I may perhaps be allowed to quote a few words from the judgment of Lord justice Brett in the case of The Attorney-General versus Tomline in 1880. That was a case where, at the instance of the Secretary of State for War, the Attorney-General used his powers to secure, and did so successfully, an injunction against a private landowner preventing him from selling a shingle bank for use as ballast in sailing vessels. It was there recognised that there was some sort of Prerogative in the Crown, and that is an isolated case in which it was successfully used. It was said in the judgment: Therefore it comes to a nice point.… The question comes to this, whether one can find any principle upon which, although he"— that is, the landowner— is not bound to keep the sea out, yet he must not do an act which will let the sea in. I think there is such a principle. Those are the words which I have taken from the judgment in that case, and I submit now that if your Lordships agree that that principle exists, no hardship is imposed upon any private individual by this Bill. I might here mention that this Bill is partly a result of the Report of the Royal Commission on Coast Erosion in 1907, and I am suggesting respectfully that the necessity for action arising out of that Report is now of about the right vintage and may be safely acted upon.

It is interesting also to notice that in the year 1929 a Bill was actually drafted by the Conservative Government of that day. It made no progress, owing to the General Election which followed, but if it had made progress then, it would, I understand, have been introduced by the then President of the Board of Trade—and may I say that I am very glad to see the noble Viscount here this afternoon? After the General Election, however, the late Mr. William Graham, whom the noble Viscount succeeded as President, actually introduced the Bill. It was a more voluminous and much more drastic Bill than this one; it aroused a great deal of opposition and was eventually withdrawn; but Clause 3 of that Bill is reproduced in Very much its original form, though I think in an improved form, in the Bill which I am introducing this afternoon. One must reflect that since the year 1929 a great deal of damage has been done to the coast of this country. This Bill introduces for the first time a system of Government action in this matter. The Department charged with the duty is the Board of Trade, and the Board of Trade—I refer now to Clause 1 (1)—may make an order, and the purposes for which it may make an order and the circumstances in which it may make an order are so important that I will ask your Lordships to bear them in mind during the consideration of this measure. They are, first, for the protection of the coast from erosion, and secondly, for the prevention of damage to any lands by the action of the sea. I should like to emphasize that it is only for those purposes and in those circumstances that action may be taken by the Board of Trade. I say that in order to endeavour to allay the fears of certain interests which, I understand, are apprehensive that they might be injuriously affected by the Bill.

Such an order may either prohibit or restrict or allow conditionally the excavation or the removal or the disturbance of the seashore. That is another word to which I am inviting attention. The definition of the "seashore" for the purposes of this Bill appears in Clause 1 (13). It is somewhat important, and I therefore venture to read it. It is: The expression 'seashore' means the bed and shore of the sea and of every channel, creek, bay or estuary, and of every river so far up that river as the tide flows, and any cliff, bank, barrier, dune, beach, flat or other land adjacent to the shore. In subsection (10) your Lordships will find that that definition is qualified by the statement that it is not to go above any lock or sluice. That definition, as will be at once apparent, is very much wider than the definition of the word "foreshore." At present, if I am right, the Board of Trade have jurisdiction only over the foreshore, and the landward limit of the foreshore is the mark of mean tides, the average between springs and neaps at high tide. That, of course, is a comparatively small area compared with the area of the seashore as defined in this Bill. So your Lordships will observe that this Bill applies to tidal rivers, and so far as the Thames is concerned it will apply up as far as Teddington, where I believe the first lock is situated.

Your Lordships may ask why tidal rivers have been included in this Bill, and the answer, I will say quite frankly, is that it was found to be so difficult as to be almost impossible to arrive at a satisfactory definition of the exact spot where the sea ended and a river began. That problem was found so difficult that we now resort to the much simpler procedure of saying that this Bill shall apply wherever the tide flows, which is or should be easy of interpretation. It is there that there may be some apprehension that the powers conferred under this Bill may be improperly used, and I would, therefore, like to say that I believe it is a fact that in practice these powers would not be used in respect of tidal rivers. I am not of course in a position to give any sort of undertaking in this matter, but it is the sort of point on which I would very much like to hear an opinion expressed by the noble Lord who, I understand, will speak for the Government this afternoon. In any event I invite the House to believe that the Board of Trade is, and will be, a reasonable institution when it comes to administering this Bill. If so, I do not think the fears of certain interests need really have very much ground. There are always the opening words of this Bill to be borne in mind, which I have emphasized before.

In addition to that there are, in this matter, where private interests are undeniably going to be affected, a large number of safeguards, and I may perhaps be allowed briefly to mention them. They are set out in the First Schedule of the Bill, and that Schedule is, I think, one of the most important parts of this Bill. All these safeguards must be observed by the Board of Trade before any order is made under this Bill and acted upon. The Board must give notice of their intention to make an order. The draft order must be open for inspection. There must be time for objections, and publication in the London Gazette or Edinburgh Gazette, as the case may be. There must be further local publication. Objections made against the order must be considered by the Board, and the Board may hold a public inquiry arising out of those objections. The draft order must be laid before both Houses of Parliament, and both Houses must not only have the order laid before them but must resolve that the order should be approved. Then, if an order amends or repeals any Private or Local Act of Parliament, or any Public Act, there are further safeguards. There must be further publication, and notice of presentation to Parliament must be given. Opportunities must be given for memorials or objections to be handed in, and if there is an objection the order cannot be confirmed until it has been approved by Parliament. The procedure for confirming it by Parliament includes the availability of the services of a Select Committee of either House.

Finally, there is protection in Clause 2, subsection (2), for harbour authorities, conservancy authorities, and navigation authorities, who are engaged in conserving, maintaining or improving certain tidal rivers and harbours. We all know that there are several very important rivers in this country which by reason of the action of such authorities have been improved out of all knowledge and made navigable and useful, and of great service to the community. I refer, of course to such rivers as the Tyne, the Mersey, the Clyde, the Humber and the Thames, and no doubt there are several others where very great work, at vast expense, has been done. That work has involved dredging, and dredging may possibly be construed as such a removal of material as to be coast erosion. That is why I am mentioning this point. I am mentioning it because under this Bill, and any practice to be followed under it, there will be ample protection for those authorities engaged in that work, for nobody, quite obviously, wants to stop dredging. Therefore I submit that there are in this Bill ample safeguards for this taking away, as to some extent it undoubtedly is, of the interest of private property.

There are just one or two other matters which I would like to mention. First of all, in some cases the making of an order may be a very urgent matter. In that case it is provided by Clause 1, subsection (1), that an interim order may be made by the Board. The interim order can only remain in force until either it is made permanent by a permanent order being applied, or is withdrawn, and in either case it cannot last longer than six months. Then, in subsections (3) and (4) the Bill binds the Crown and the Duchies of Lancaster and Cornwall, and brings them within the general principle of this Bill. I think it is clear that that step is necessary for the sake of completeness, because quite long stretches of shore, I understand, belong to either one or other of those institutions.

The Bill binds also harbour authorities, local authorities and highway authorities, by subsection (5), and does that notwithstanding any Private or Public Acts of Parliament which those authorities may enjoy; but there is a proviso that if any fulfilment of a statutory duty is prevented then the Local Act is by this Bill, or rather by order made under this Bill, repealed or amended. Other machinery provides that a licence may be granted by the Board of Trade to do something which otherwise would be unlawful, by order made by the Board. There is a penalty clause in subsection (8), and in subsection (9) it will be found that there is nothing in this Bill to stop a private person from prohibiting excavation, removal or disturbance on or from his own land. Then it is provided that the costs of inquiry, if and when such is held, may be imposed on the applicant for an order or upon the objector to an order, in whole or in part, at the discretion of the Board of Trade.

I think that this Bill is a necessary measure. I submit that it will be a useful measure. It is suggested and prompted by actual experience, very much of it unfortunate, and while it undoubtedly does impose a limited restriction on private rights it does so, in my submission, accompanied by ample safeguards. The fact that it is in the public interest that this Bill should be passed, and that the machinery which it sets up should be erected in a reasonable and efficient manner, I think will justify it, and I hope your Lordships will give it a Second Reading this afternoon.

Moved, That the Bill be now read 2a.—(Lord Merthyr.)

5.30 p.m.


My Lords, the excellent speech which you have just heard gives many reasons for supporting this Bill, and there really is not a great deal for me to add. It is only right that we should try, whether by Act of Parliament or by any other means, to prevent the sea encroaching on the land. The sea is undoubtedly gaining on the land at this moment on the coast of Norfolk and no doubt in many other places. I believe that every inch of land is of importance to us nowadays, especially because in the last twenty years a great deal of it has gone out of cultivation, or else it is being used for housing estates, aerodromes and other purposes. It is quite true that twenty-eight years ago a Royal Commission reported that on the whole, the land in this country was gaining on the sea. That may be true to-day, but it is not necessarily so, and even if it is the case, I still think that we ought to try to prevent the sea encroaching where it is actually doing so.

Other reasons for supporting this Bill can best be illustrated by an account of what has happened at a place on the coast of Norfolk called Walcot during the last seven years. This place is in the constituency which I had the honour to represent in another place. First, about sixty-three feet of cliff have disappeared into the sea, six houses have disappeared, and many more are threatened, including a large convalescent home which belongs to the Kettering Urban District Council; and besides that, the main Yarmouth-Cromer road has been destroyed for about a hundred yards and has had to be replaced. In spite of all this the lord of the manor at this place exercises his right to remove shingle and sand in large quantities from the beach here every day, and I would ask your Lordships to note that there was no coast erosion at this place at all until seven years ago, when this large daily removal of sand and shingle started. This has been going on in spite of the fact that the local catchment board, who are responsible for sea defence, have a bylaw designed to prevent the removal of shingle, but they have been advised by eminent counsel that, although they could prosecute me, or any one of your Lordships, or anybody else for doing this, their by-law is not strong enough to prevail against the right of the lord of the manor in this matter.

As my noble friend Lord Merthyr mentioned in his speech, the property owners in these places are mostly people of small means, and therefore cannot be blamed for hesitating to start an action in the Chancery Court in defence of their property. The late Lord Justice Mathew, who, I believe, was a member of your Lordships' House, once said that "justice, like the Ritz Hotel, is open to all." I believe that unless people in the position which I have mentioned in Norfolk and no doubt elsewhere, are fortified by the procedure which is laid down in this Bill, this very cynical saying becomes quite true. I also think it illogical and absurd that the local catchment board should have to stand idly by, as they have to at present, and do nothing while damage is being done which ultimately will have to be made good at their expense, and therefore at the expense of the people who live in that part of England, where already the rates for those purposes are extremely high. I would submit to your Lordships that it is much better from every point of view to stop this damage occurring now, as can be done when this Bill becomes law, if a Board of Trade inquiry shows action to be necessary.

It was these considerations which caused Members of Parliament belonging to all Parties to band together about a year ago and try to improve the state of affairs which I have described. This Bill is the result of their labours. It had a very easy passage through another place, as your Lordships will agree who read the OFFICIAL REPORT, and such little opposition as there was was due not to hostility, but rather to misunderstanding of the Bill's real purposes. But at any rate it is true to say that there was no serious opposition at any stage. I therefore have no hesitation whatever in asking your Lordships to give this Bill your unqualified support this afternoon.

5.36 p.m.


My Lords, on behalf of my noble friends who sit on these Benches, I would like to associate them with support of this Bill. It was supported by them in another place. I happen to know of one case where a catchment board were involved in very serious difficulties owing to their inability to take the kind of proceedings which could be instituted if this Bill became law. The Bill is hedged about with all manner of safeguards, and I cannot imagine that anybody can entertain any misgivings that unfairness will arise.


My Lords, I approve, as I think most of your Lordships do, the principles of the Bill, and I disapprove equally of the private owners or any other owners of the foreshore who take such action as causes coast erosion. I would like to ask the noble Lord in charge of the Bill to explain Clause 2, which contains savings of various sorts, and in particular subsection (3), which reads: Nothing in this Act or any order made thereunder shall take away, diminish, or prejudice any powers to construct and maintain sea defence works (including river embankments), conferred upon any person by any public, general, or local or private Act. Although it may not seem credible to some noble Lords, there are private owners of foreshores who are good owners and spend a good deal of money upon sea defence works, and it seems to me that if the rights of those who have statutory power are to be saved, the rights of those who have no such statutory power but who are doing their best should also be saved. I should very much like to know from the noble Lord in his reply whether it is possible to insert anything at a later stage to save those rights.

5.38 p.m.


My Lords, I should like to say a word or two in sup- port of this Bill, because I have a certain parental interest in it, having, I think, drafted the original Bill. It was such a good Bill that it was adopted by the Labour Government after we went out, but unfortunately they failed to carry it, and they failed to carry it, if my memory serves me, because they were a little too ambitious as to the amount of money which might have come out of the public purse. In this Bill there is not only no danger of any excessive charge being put on the Treasury, but of any charge at all being put on the Treasury, as I understand it. It is merely a Bill which, with very adequate safeguards, enables the Board of Trade in proper cases to prevent private property or public property being used in a way which will be of general damage to the country and to the coast. Merely to state that, I should have thought, was sufficient to command support. But I remember being very much impressed when, years ago, I was dealing with this at the Board of Trade, by the importance of giving the Board of Trade complete jurisdiction over the whole coast.

It very often happens that the incidence of tide is such that the excavation or removal of sand or shingle at one point may have very serious effects, not at that place but quite a long distance away, and it obviously would be a most improper thing that somebody should be able to take advantage of the law and to damnify many other people at a distance from him, and also to act against the public interest. There is only one way in which that can be prevented and that is to vest in the Board of Trade a general jurisdiction over the whole of the coast to prevent erosion. The Board of Trade is obviously the body in which this power ought to be vested. It is in a sense charged with the duty already, but it has never been vested with proper powers to discharge this duty. We ought to be grateful to my noble friend Lord Merthyr and those in another place who have devised this very practical means of vesting in the Board of Trade the powers to discharge this duty, and I hope the Bill will pass.


My Lords, I just want to rise in support of this Bill and ask one question, and one only, and that is whether in the definition of "shore," in which I noticed my noble friend included the seashore, he includes such things as sandbanks which lie off the shore with a channel running between them and the mainland. They are often extremely important from the point of view of protection, and I urge that they should be included in the Bill if it can be done. I was not quite clear that they are included.

5.42 p.m.


My Lords, I desire just to say a few words regarding the attitude of His Majesty's Government towards this Bill. I have to say that the Government are generally very much in favour of the principle underlying the Bill. The noble Lord who moved the Second Reading made a point which was made in a good deal more detail in another place. He asked about the intention of the Board of Trade in regard to rivers. My honourable friend the Parliamentary Secretary to the Board of Trade in another place gave a certain assurance, which I will repeat. It is not the intention of the Board of Trade to make orders applicable to rivers, and it is not thought to be likely that any order would in practice affect rivers. If there were serious removals of materials from a river, and those removals were not required to maintain the navigation of the river or for the maintenance of piers, embankments, etc., and were in fact causing coast erosion or the weakening of the embankment of the river, the Board would, of course, make a prohibitory order in that case. My noble friend who moved the Second Reading went on to say that he hoped the Board of Trade would be reasonable in administering this Bill when it becomes an Act. Of course the Board of Trade are always most reasonable, and I am sure they will not depart from their practice in this case. There may, on the Committee stage, be certain Amendments necessary in order to make this a more workable measure, but with that proviso I have to say again that the Government fully approve the principle of the Bill. They are grateful to my noble friend for bringing it in, and they hope it will pass speedily into law.

5.45 p.m.


My Lords, I am very grateful to noble Lords who have supported this Bill this afternoon. Two questions have been asked of me, and I shall do my best briefly to reply to them. The noble Earl, Lord Radnor, asked, pointing to subsection (3) of Clause 2, if there was any similar protection for private individuals who might be spending money on sea defence work without having done so under Act of Parliament. I should like to draw the noble Earl's attention to subsection (9) of Clause 1, which says: Nothing in this section, or in any licence granted thereunder, shall affect the right of any person to prohibit, restrict or impose conditions as to the excavation, removal or other disturbance of any materials if he might have exercised that right if no order had been made under this section. That is partly an answer to my noble friend. As I see it, there will be nothing whatever to prevent his continuing individually to spend money on coast defence. I might add this. I believe it is the case that a local authority can do nothing unless it is specifically empowered to do so by some Act of Parliament, whereas on the other hand an individual can legally do anything unless he is specifically forbidden to do it by some Act of Parliament. If that distinction is correct and is borne in mind, my noble friend will agree that a private individual, in the hypothetical case he has suggested, will be amply protected. If that answer is not satisfactory I shall be very glad to go further into the matter at a later stage.

The noble Lord, Lord Phillimore, raised a point as to whether what may be called an off-lying sandbank is included in the definition "seashore." I would not like to be too definite about this, but I certainly think it is. The definition says that "seashore" means the bed and shore of the sea and so on, and "every channel, creek, bay, or estuary," and also any "bank, barrier, dune, beach," etc. If that definition includes these things on the mainland, it seems clear to me it will also include those same things on an island off the shore; even if the island consists only of one of these things, I should say pretty certainly that thing is included. Again, in case I should be wrong, I shall be glad to make certain of the point before the next stage of the Bill is completed. These were the two questions asked, and I hope I have answered them in a satisfactory manner.

On Question, Bill read 2a, and committed to a Committee of the Whole House.

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