AGRICULTURAL LAND (REMOVAL OF SURFACE SOIL) BILL (Hansard, 20 January 1953)

§ LORD AMHERST OF HACKNEY
My Lords, as your Lordships know, a similar Bill to this was read a second time in this House on July 10 of last year, when it was introduced by the noble Lord, Lord Llewellin, who I am glad to see in his place today. That Bill was welcomed by the Government, and on all sides of the House. Unfortunately, however, time could not be found in another place for consideration of the Bill. As the present Bill has come to your Lordships' House from another place—where I believe it passed through all three stages in a minute—perhaps it will be very successful. I do not intend to say much about the Bill, as it was fully discussed on July 10. I would remind your Lordships that the object of the Bill is to enable more speedy and effective action to be taken against those people who, for quick profits, strip the top soil from good agricultural land and leave it derelict—profits which we cannot afford in this island, with its large population and limited amount of agricultural land. The Bill is limited in scope. First, it applies only where the people intend to sell the soil. Secondly, the removal of the soil must constitute development under the Town and Country Planning Act, and, thirdly, it must have been carried out without planning permission under that Act. In fact, the only people who will, I hope, be affected by the Bill are those who try, through a weakness in the procedure under the Town and Country Planning Act, to make quick profits by despoiling one of our greatest national assets, our agricultural land. I beg to move that this Bill be read a second time.

§ EARL JOWITT
My Lords, we on this side of the House shall certainly not oppose the Bill, which I have no doubt performs some useful purpose. On the other hand, I should like to utter this word of caution. Here is a new Bill creating a new criminal offence. I gather from the noble Lord that it was passed through another place in, I think he said, one minute. Having reached a ripe old age, I confess that I am a little suspicious of Bills which create new criminal offences and which are passed through after discussion of one minute. When I look at this Bill, I am not quite sure that it comes up to the canon which I should desire, for I should desire any Bill which creates a new criminal offence to be worded in perfectly plain language, so that everybody may know if he is doing anything wrong. Perhaps the noble Lord differs from me, in that he has a far greater knowledge of the Town and Country Planning Act than I have. I confess that I was responsible for introducing that Act in this House, and I do not think I ever had a more difficult measure to introduce. I tried to be rather pontifical about it, and to pretend that I understood all about it at the time. As a matter of fact, there were huge chunks of it which I did not understand with that clarity which I should have wished and which exists in the mind of the noble Lord.
For instance, if you are going to sell some of your top soil at the present time, and you have this Bill in front of you, you must ask yourself this question: Does the removal of that soil constitute a development within the meaning of the Town and Country Planning Act, 1947? The ordinary gentleman who lives in the country, possibly by farming, who is asked by somebody wishing to build a herbaceous border whether he will allow him to take a lorry load of soil for that herbaceous border, must now realise that the question of whether he can do so or not depends on whether or not this is development within the meaning of the Town and Country Planning Act, 1947. If he goes to the noble Lord, no doubt he will get a clear and concise answer. But if he comes to me, I should say, "I should like notice of that question." and then I should consult various people who, perhaps, would be able to give me an answer—though perhaps not. But the gentleman 1088 who is making his living in the country by tilling his soil, will be in a position of very great difficulty. It is certainly not for me to put a spoke in the wheel of this Bill, the passage of which took only one minute in another place, but I venture to think that between now and the next stage of this Bill the noble Lord might consider whether he can do anything to make it more plain, because quite obviously it is not plain at the present time. I am sure he will agree with me that it is most undesirable to create criminal offences unless the people on whom this Bill might operate can tell quite plainly and beyond a peradventure whether, if they do a certain thing, they will or will not commit a criminal offence.
Subject to that point—which is really a matter of drafting—I am not in the least opposed to the Bill, because the noble Lord and the noble Lord, Lord Llewellin, in some of our discussions here, indicated that there is an abuse which must be stopped. But I venture to think that the point I have raised might be considered to see whether it is possible—it may not be—to put the matter in plainer language, so that the ordinary man who contemplates selling a lorry load of his top soil may know whether or not in so doing he is infringing the criminal law.

§ LORD LLEWELLIN
My Lords, may I say first that I am greatly obliged to by noble friend Lord Amherst of Hackney for having taken charge of this Bill? It was not that I did not want to do it, but I believe it was thought that I might not be back in time to move the Second Reading to-day. I was interested in what the noble and learned Earl who has just sat down has said. I, too, dislike a measure that goes through, so to speak, "on the nod," and which creates a new criminal offence. But we had a longer discussion here last July, when this Bill had the support of one of the legally qualified noble Lords on the other side of the House, Lord Douglas of Barloch, and also the support of the noble Earl, Lord Listowel, who said he was speaking for the Opposition. Several of us, I think, pretended that we knew more about the Town and Country Planning Act than we really did. It was a very complicated measure. I had the opportunity of taking a fairly considerable part in the discussion when that Bill 1089 was before this House, and at that time it was thought that this definition of what was "development" was a somewhat wide one. But I do not think there is any risk. As a matter of fact, for what it is worth, I do not think there has been an appeal—at any rate, I have not heard so. Last June the Oxted bench of magistrates determined that this was "development" within the meaning of the Town and Country Planning Act. One would have thought that if that had been really disputed, a case stated might have been asked for, for this is clearly a point of law.

§ EARL JOWITT
What was the extent of the removal of the soil in that case?

§ LORD LLEWELLIN
I believe it was about two acres, taking the whole of the top soil of the field. Obviously, the matter must depend a great deal upon extent. I should think that if you were to take, say, a couple of barrow loads and sell it to your neighbour to put on his garden, it is doubtful whether that would come into this category. I should think that this point has been safeguarded. Perhaps I may be allowed to direct the attention of noble Lords to Clause 2 (3) which runs as follows: In proceedings under this Act it shall be a defence to show that, before the carrying out of the operations in respect of which the proceedings are brought, it was determined or decided under section seventeen of the Town and Country Planning Act, 1947, that those particular operations would not fall within paragraph (b) of subsection (1) of the foregoing section; but a determination or decision under the said section seventeen shall not in other circumstances be treated as conclusive for the purposes of this Act. So the person intending to take away this soil and sell it can go to the appropriate authority under the Town and Country Planning Act and ask for a decision. If the decision is against what he wants he may then involve himself in a summary prosecution if he takes away the soil.
I agree with the noble and learned Earl that if we create a new criminal offence we want to see that it is created with some degree of certainty. But if a man wants to make a profit, and takes away the whole of the top soil and sells 1090 it, he can safeguard himself by getting this determination in advance. Indeed—following on a point which the noble Lord, Lord Hawke, made on the last occasion—it would be rather advantageous if in the case of some large housing sites the top soil were taken away from under the houses themselves, so that the soil which would otherwise be sterilised by the house could be made available for the garden, and so forth. If we stop this practice from being pursued on the wholesale scale in which it has been carried on in some agricultural areas, these people may be led to buying the soil from local authority building estates; and I have no doubt it would be of advantage to everybody to take that soil for the making of gardens in suburban areas. I hope the House will give this Bill, which is exactly the same Bill as I introduced last July, a Second Reading.

THE EARL OF ONSLOW
My Lords, on behalf of Her Majesty's Government I should like to welcome this Bill in its entirety. As the noble Lord, Lord Llewellin, has said, it is the same Bill as the one he introduced, which we also welcomed. I think I can say that it is welcomed also by the whole of the agricultural community. The noble and learned Earl raised the question of the taking of a barrow-load of soil for flower-beds, and so forth. I speak subject to correction, but I do not think that such a case would be affected. I believe Lord Llewellin will agree with me that this matter was probably started by the Oxted decision. In that case the area was of two or three acres, but there were many more acres potentially involved; indeed, a large area of good agricultural land would have been affected. That was the origin of this Bill. I think all who are interested in keeping in production as much of our agricultural land as possible will agree with the object of this measure, and on behalf of Her Majesty's, Government, I have pleasure in signifying our agreement to the Bill.