TOWN AND COUNTRY PLANNING (SCOTLAND) BILL

HL Deb 18 November 1954 vol 189 cc1638-75

3.6 p.m.

Amendments reported (according to Order).

Clause 2 [Claim holdings, their areas and values, and apportionment of values between parts of areas]:

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

My Lords, the first Amendment is a drafting Amendment. Your Lordships will see that the object of subsection (3) (b) is to ensure that any amount due by way of development charge which was secured by an assignation of a claim shall be fully covered as a result of any apportionment of the claim. It is sufficient for this purpose to ensure that the amount apportioned to the developed land for the purposes of the assignation is not less than the amount due or secured. This Amendment corresponds to the Amendment to Clause 2, page 4, line 34, made to the English Bill in Committee of this House. I beg to move.

Amendment moved— Page 4, line 31, leave out from first ("the") to end of line 35 and insert ("amount secured by the assignation;"). —(Lord Chancellor.)

LORD SILKIN

My Lords, I do not rise for the purpose of discussing this particular Amendment. The noble and learned Viscount was good enough to give the House an assurance that this Amendment corresponds with an Amendment to the English Bill. If the noble and learned Viscount could give us an assurance that in the Amendments which he is moving to-day all the improvements, or all the Amendments, shall I say, which have been made in the English Bill are incorporated, with the exception of the Amendment about which he was good enough to notify me and which personally I am willing to accept (that is, to Clause 35 of the Scottish Bill), it would save time, and in that case the noble and learned Viscount would not need to give such an assurance in respect of every single Amendment.

THE LORD CHANCELLOR

My Lords, I am grateful to the noble Lord, Lord Silkin, for what he has said. I gave an assurance on Second Reading that I would carry out that course, and I have carried it out. The noble Lord has reminded me (I am glad he has) of an exception, namely, to Clause 35, on the question of the twenty-eight days within which a local authority have to reply. This was not included in the Scottish Bill. In another place those who claim particularly to speak for the Scottish local authorities, who had considered the matter, announced that it was not desired in Scotland, and I have myself ascertained that the same lack of desire was expressed from other quarters. Therefore, I felt that as that provision was not in the Scottish Bill, we should not introduce the Amendment which was introduced in the English Bill. In view of the undertaking I had given, I thought it right to communicate with the noble Lord, Lord Silkin, and also with my noble friend the Duke of Buccleuch, who has interested himself in a number of Scottish Amendments. I hope your Lordships will approve of what I have done in this matter. With that exception, I can give the noble Lord the assurance he desires. If I interpret correctly the purport of what he said, I shall take the other Amendments rather more quickly, without giving the corresponding reference in each case.

On Question, Amendment agreed to.

Clause 5 [Payment where land compulsorily acquired or sold at price wholly or partly excluding development value (Case B)]:

THE LORD CHANCELLOR

My Lords, the two Amendments to Clause 5 give effect to an undertaking which I gave to the noble Lord, Lord Saltoun, in Committee, to consider altering the date, July 1, 1948, in Clause 5 (3) (b) to the date of the Royal Assent to the Scottish Planning Act, 1947—August 13, 1947—in the light of the information which my noble friend then gave about possible cases in Scotland where the date of the contract of sale was prior to July 1, 1948. August 13, 1947, is the date strictly comparable to August 6, 1947, in the corresponding provisions in the English Bill. I beg to move.

Amendment moved— Page 9, line 29, leave out ("first day of July, nineteen hundred and forty-eight,") and insert ("said thirteenth day of August,").—(The Lord Chancellor.)

LORD SALTOUN

My Lords, I am grateful to the noble and learned Viscount for the consideration he has given to this matter which I was asked to bring to the attention of the Government. I am satisfied that the Amendment made exactly meets the hardship that I was asked to represent, and I wish to express my thanks.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

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

Amendment moved— Page 9, line 33, leave out ("said first day of July") and insert ("first day of July, nineteen hundred and forty-eight,"). —(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 6 [Supplementary provisions relating to compulsory acquisitions and to sales]:

THE LORD CHANCELLOR

My Lords, this Amendment is a drafting Amendment rectifying an omission. I think it is quite clear. I beg to move.

Amendment moved— Page 11, line 32, leave out ("section eleven") and insert ("sections eleven and forty-six").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, the next Amendment is also a drafting Amendment, made because it is desirable to put beyond doubt that the substitution, for the purposes of the present provision, of the date of sale for the appointed day has effect in the Schedule. I beg to move.

Amendment moved Page 12, line 14, at end insert ("and, so far as required for the purposes of that Part, for the purposes of the Third Schedule to the principal Act;").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 7 [Payment where land disposed of by gift (Case C)]:

THE LORD CHANCELLOR

My Lords, this also is a drafting Amendment, to make quite sure that the words do cover beneficial entitlement. I beg to move.

Amendment moved— Page 14, line 16, leave out ("entitled in the same capacity") and insert ("beneficially entitled").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 19 [Right to compensation in respect of planning decisions]:

THE LORD CHANCELLOR

My Lords, the purpose of this Amendment is to exclude statutory undertakers and the National Coal Board from the operation of subsection (2) of the clause, and to leave their position in the matter of compensation to be determined solely by subsection (4); that is to say, by provisions related to the operational status of the land concerned. The Amendment is more than drafting and corresponds to the Amendment in Clause 19, page 28, line 2, made to the English Bill on the Report stage in your Lordships' House. I do not think I need elaborate further the purpose or the content of the Amendment. I beg to move.

Amendment moved— Page 27, line 37, after ("powers") insert ("not being statutory undertakers or the National Coal Board,").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 20 [Compensation excluded in certain cases]:

THE LORD CHANCELLOR

My Lords, this Amendment is proposed in pursuance of an undertaking which I gave in Committee on the English Bill: I think it should apply to both countries. It is a point that we discussed fully, and I feel will be well in your Lordships' minds. I beg to move.

Amendment moved— Page 29, line 24, leave out ("ten") and insert ("seven").—(The Lord Chancellor)

On Question, Amendment agreed to.

Clause 23 [Review of planning decisions where compensation claimed]:

THE LORD CHANCELLOR

My Lords, this is a drafting Amendment to cover words that were inserted in the parallel passage in Part V. I beg to moved.

Amendment moved— Page 32, line 15, after ("permission") insert ("applied for").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 24 [Supplementary provisions as to review of planning decisions]:

THE LORD CHANCELLOR

My Lords, this Amendment is put down in order to meet a point made by the noble Lord, Lord Silkin, in Committee on the English Bill. Your Lordships will remember that the noble Lord complained that the clause made no provision for informing those concerned of their right to be heard. Although we thought that was implicit we were anxious that it should be met on the face of the Bill, and clearly that ought to be done in the case of Scotland, too. I beg to move.

Amendment moved— Page 32, line 34, leave out from ("shall") to ("to") in line 38 and insert ("give notice in writing of his proposed direction to the local planning authority to whose decision that direction relates and to any person who made, and has not since withdrawn, a claim in respect of that decision, and, if so required by that authority or by any such person, shall afford to each of them an opportunity").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 26 [Measure of depreciation for assessing compensation]:

THE LORD CHANCELLOR

My Lords, the series of Amendments to Clause 26 standing in my name—there are some half a dozen Amendments, and also an Amendment to leave out Clause 27—with your Lordships' approval, can conveniently be discussed together, because they are all interconnected. The reasons for bringing forward these Amendments are two. The first is that subsection (3) of Clause 26 does not enable account to be taken, in assessing the depreciation caused by a planning decision, of any previous order revoking or modifying a planning permission which has given rise to the payment of compensation for depreciation. The second reason is that Clause 27 (3) is defective, because it fails to make clear that what is relevant for the purposes of Part II is only the value of the interest so far as it subsists in any land to which the decision relates which has an unexpended balance of established development value. The defect was the result of drafting changes made in another place. To remedy these two defects these Amendments are proposed, and as a matter of clarity and convenience Clauses 26 and 27 have been put together. This is a procedure which your Lordships were good enough to approve in regard to the English Bill, and again I think that it would be convenient for Scottish law, as well. I beg to move.

Amendment moved— Page 34, line 27, after ("land") insert (",or of an interest in so far as it subsists in particular land,").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, the next Amendment is consequential, as I have explained. I beg to move.

Amendment moved— Page 34, line 29, leave out ("and the next following").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

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

Amendment moved— Page 34, line 32, leave out from ("arises") to end of line 37.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment is also consequential on what I have just explained. I beg to move.

Amendment moved— Page 34, line 38, leave out ("of the interest") and insert ("in question").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment is also one of the series which I have just described. I beg to move.

Amendment moved—

Page 34, line 42, leave out from ("decision") to end of line 44 and insert— (",by any grant of planning permission made after that decision and in force immediately before the Secretary of State gives notice of his determination on the claim for compensation in respect of that decision, and by any undertaking to grant planning permission so in force; and (c) on the assumption that, after the relevant decision and apart from any such permission or undertaking as aforesaid, planning permission would be granted for development of any class specified in the Third Schedule to the principal Act but not for any other development,").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment is again one of the same series. I beg to move.

Amendment moved— Page 35, line 1, leave out from ("Part") to end of line 5 and insert ("or Part V of this Act, or compensation for depreciation within the meaning of subsection (3) of section forty-one of this Act, has become, or becomes, payable in respect of another planning decision or in respect of an order to which the said section forty-one applies, being a planning decision or order made before the relevant decision in respect of, or of land which includes, the whole or part of the land to which the relevant decision relates, the calculation called for by the last preceding subsection shall be made on the assumption that that other planning decision was a decision to the contrary effect or, as the case may be, that that order was not made.")—,(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 27 [Supplementary provisions as to calculation of depreciation]:

THE LORD CHANCELLOR

My Lords, the next Amendment is the last of the same series. I beg to move.

Amendment moved—

Leave out Clause 27.—(The Lord Chancellor).

On Question, Amendment agreed to.

Clause 34 [Additional compensation for works]:

THE LORD CHANCELLOR

My Lords, this Amendment has two purposes. The first purpose is merely formal: to provide that the clause shall not apply where the compensation on the basis of existing use includes the full value of the permission to develop in pursuance of which the works were carried out because those works are completed or substantially completed. The second part of the Amendment, at line 28, deals with the cases where the development of part of the land has been completed and the development of the remainder has not. This Amendment corresponds to the Amendment to Clause 33, page 42, line 3, in the English Bill. Your Lordships were good enough to approve of the principle in the Amendment then, so I do not think I need say more except that, in my view, it should apply to the Scottish Bill also. I beg to move.

Amendment moved— Page 42, line 22, after ("apply") insert ("(a)").—(The Lord Chancellor.)

THE LORD CHANCELLOR

My Lords, this Amendment is consequential on the Amendment with which I have just dealt. I beg to move.

Amendment moved—

Page 42, line 28, at end insert ("or (b) if the compensation on the basis of existing use payable in respect of the acquisition would be the same whether or not the said subsection (4) operated; and where, if the notice to treat had extended to a part only of the relevant land, the amount of the compensation on the basis of existing use payable in respect, of the relevant interest in so far as it subsisted in that part would have been the same whether or not the said subsection (4) operated, this section shall have effect as respects the acquisition of the relevant interest as if the notice to treat had extended only to the remainder of the relevant land.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment and that proposed to subsection (3) of Clause 35, which is at page 44, line 7, tidy up the interrelation of these two clauses. This also is an Amendment which follows a matter of drafting and procedure of which your Lordships approved when we were considering Clause 33, page 42, line 14, in the English Bill. Again, it seems to me an improvement which ought to be introduced into the Scottish Bill. I beg to move.

Amendment moved— Page 42, line 33, leave out ("then, subject to the next following section,").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 35 [Protection for purchasers]:

THE LORD CHANCELLOR

My Lords, the purpose of this and the following Amendments to Clause 35 is to meet a number of points raised during the debate on the Committee stage of this Bill. Perhaps I may briefly remind your Lordships of the changes of substance. The first is that the notice is to state the name of the authority who intend to acquire and to specify any part of the land which it is not proposed to acquire. The second is that the local planning authority are to be at liberty to charge a fee of 5s. As regards the remaining Amendments, two are designed to secure uniformity of language throughout the clause, while another two are consequential on the addition of the new subsection (3). The first Amendment, that at page 43, line 6, is largely drafting. There is, perhaps, a little more in the others. In view of the Amendment at page 44, line 6, under which a fee may be charged, it is thought better to drop the reference to "a person who proposes to purchase." Again, this is a matter which, thanks to my noble friend Lord Gage and others, we discussed in considerable detail on the English Bill, and I think I have said enough to bring it to your Lordships' memory and attention. I beg to move.

Amendment moved— Page 43, line 6, leave out from ("by") to ("stating") in line 8, and insert ("any person with respect to particular land in their district, to serve on the applicant a notice").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment is consequential on what I have just put before your Lordships, and I beg to move.

Amendment moved— Page 43, line 13, at end insert (",specifying in the notice—

1. (a) any such public authority by whom the local planning authority have been so notified; and
2. (b) any part of that land to which any such proposal of the local planning authority or other authority does not extend.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment is also consequential. I beg to move.

Amendment moved— Page 43, line 24, leave out ("giving") and insert ("service").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment is really a matter of clarification, as appears on the face of it. I beg to move.

Amendment moved— Page 43, line 27, leave out ("said") and insert ("local planning").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment is inserted because it is doubtful whether the present wording of the clause covers the case where the powers of acquisition are conferred in a Private Act confirmed subsequent to proceedings under the Private Legislation Procedure (Scotland) Act, 1936. This Amendment and that next following secure that such cases will be covered. I beg to move.

Amendment moved— Page 43, line 32, after first ("by") insert ("or under").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, as I have explained, this is a purely drafting Amendment. I beg to move.

Amendment moved— Page 43, line 34, leave out ("published or served in accordance with that Act or Order") and insert ("duly published or served").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment is one of those I mentioned in my explanation. I beg to move.

Amendment moved— Page 43, line 41, leave out ("time") and insert ("date of service").—(The Lord Chancellor.)

On Question, Amendment agreed to.

3.30 p.m.

THE LORD CHANCELLOR

My Lords, the next Amendment is also consequential on the explanation that I gave of the group. I beg to move.

Amendment moved—

Page 44, line 6, at end insert— ("(3) Without prejudice to the duty imposed by subsection (1) of this section on a local planning authority to whom an application under that subsection has been made, the local planning authority may require the applicant to pay to them a fee of five shillings.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, the next Amendment is also consequential on those that I have already explained to your Lordships. I beg to move.

Amendment moved— Page 44, line 7, leave out ("The two last preceding sections") and insert ("Section thirty-three of this Act").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, the same applies to Amendment No. 30. I beg to move.

Amendment moved— Page 44, line 9, leave out ("the last preceding subsection") and insert ("subsection (2) of this section").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, I am happy to inform your Lordships that this is the last of this group of Amendments. The same remarks apply to this Amendment, which is also consequential. I beg to move.

Amendment moved— Page 44, line 13, leave out ("last preceding subsection") and insert ("said subsection (2)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 37 [Additional payments in cases where no claim has been established]:

THE LORD CHANCELLOR moved in subsection 1 (b) after "opinion" to insert: , after giving the person entitled to the relevant interest an opportunity to present his case,".

The noble and learned Viscount said: My Lords, this Amendment is designed to meet a point made on Third Reading of the English Bill and to make it clear on the face of the Statute that before issuing the certificate for which the clause provides, the person acting on behalf of the Treasury (that is, the district valuer) is to give the owner of the interest being acquired an opportunity of presenting his case. Your Lordships will remember that this Amendment is almost exactly in the form suggested by the noble and learned Earl, Lord Jowitt, in order to cover this point. If your Lordships will grant me the indulgence, I should like to trespass on your Lordships' time for a few moments on this Amendment because you will remember that in considering this clause in Committee I promised to repeat to you any statement I made on the Report stage of the English Bill about the procedure which Government Departments will follow in order that co-ordination may be achieved.

Your Lordships will have in mind that this is the clause which has often been termed the "Pilgrim clause" because its purpose is to prevent any such case as that of Mr. Pilgrim from arising in future. For the information of your Lordships I said, and I should like to emphasise it again, that the Treasury will initiate discussions with the various appropriate authorities for the purpose of finding a co-ordinated machinery. The aim will be to ensure that all straightforward cases are picked up at the outset of the matter and that there is no delay or argument about including the supplement in the price which is offered. But there will, I am sure, be some cases which are not quite straightforward. There will, in any event, be administrative arrangements for securing that consultation shall take place among the appropriate authorities, that advice is given on any cases where any doubt arises, and that all the appropriate authorities act on similar lines. If experience suggests that anything in the nature of practice notes would be practicable and useful, that suggestion will be borne in mind and carefully considered. I hope that this meets the first point which troubled some of your Lordships—namely, the question of consistency between the various appropriate authorities: that is, the various Ministers and Departments.

With regard to procedure, I should like to follow up what I said at an earlier stage by assuring the House that the intention of the words in the second line of subsection (1) as it now stands, "the appropriate authority is satisfied," is that at the earliest stage at which price or compensation comes into question, the person negotiating the purchase on behalf of the acquiring authority shall make a point of directing the attention of the owner to the effect of the clause, and that it should be in the minds of both the parties throughout the negotiations. I stressed as being my own earnest desire that there should be consistency between Departments, and that the Department should go out to help the person concerned and not wait for him to come to the Department. I hope that the assurance I have given will go some way to meet the evident desire of your Lordships on that point. I beg to move

Amendment moved— Page 45, line 1, after ("opinion") insert the said words.—(The Lord Chancellor.)

LORD SILKIN

My Lords, in reply to the statement that the noble and learned Viscount has made I desire only to say that I think that, so far as anything can be done by way of administration to pick up the type of case to which this clause applies, the Government have done everything possible. I have no doubt that, if any revision of the machinery should hereafter be shown to be necessary, they will make that revision as speedily as possible. In spite of everything that human ingenuity may devise, there will always be cases which will not be picked up in this way; and experience may show how it will be possible to pick up even the at present unpickable cases. I think we ought to bear in mind, however, that, in spite of everything that has been done, there will be a number of cases of hardship to which this does not apply. There will be people whose land is being compulsorily acquired at existing use value but who would not have had a claim except by stretching beyond what was intended by the definition of whether or not a person had a claim in 1948. Nevertheless, it will transpire that the market value of their land is more than the existing use value. Such persons, with the best will in the world, will not be covered by this particular provision. I think that must be so.

I want to say once more what I have said on previous occasions: that we must do something of this kind. The Government have gone much further than they went at first. In the beginning, it was to be entirely a matter of discretion: each case was to be considered on its merits. They have got to the point now, however, that every one of the cases to which this clause applies will be paid out unless there are good reasons to the contrary. That is a totally different emphasis from the one with which we started. But we must be careful not to hold out false hopes to people—I have said this before. I hope that we shall not create the impression that in every case people whose land is going to be compulsorily acquired will be paid out the difference between the market value and the existing use value. There will be many cases where that will not be so, particularly where this clause does not apply at all; and I think it might cause a great deal of hardship if, in any explanations we were to issue, we gave the impression that this was a right or that it was universal. But, having said that, my comment on the procedure which the noble and learned Viscount has outlined is that I think it is as good as can be devised at the present time, and I am certain that if it should be necessary to improve on it any Government will be ready to do so.

3.41 p.m.

THE EARL OF MANSFIELD

My Lords, while the concessions made by the noble and learned Viscount may not go quite so far as some of us would desire, I think we should recognise that, in moving this Amendment and a number of previous Amendments, he has taken a great deal of trouble to allay the anxieties that many of us felt. I am sure that he and the Government deserve our thanks for meeting us so far.

THE LORD CHANCELLOR

My Lords, I am grateful for what the noble Lord, Lord Silkin, has said and also for the words of my noble friend Lord Mansfield. We recognise the double need which has been pointed out, of not raising false hopes and at the same time of keeping the procedure alive and ready and flexible enough to meet any new points that may arise. I am grateful to noble Lords for what they have said.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

Amendment No. 33 is moved in order to implement the undertaking given on behalf of the Government on the Report stage of the English Bill, and deals with the onus that is put on the confirming Minister. Your Lordships will remember that an Amendment in these terms took the place of an Amendment moved by my noble friend Lord Ridley, and was approved by your Lordships' House on the Report stage of the English Bill. I beg to move.

Amendment moved—

Page 45, line 7, leave out from ("aforesaid") to end of line 15 and insert ("that amount shall be added to the compensation payable in respect of the acquisition of the relevant interest apart from the provisions of this section:

Provided that if, after taking into account all the circumstances, the appropriate authority is of opinion that it is not just and reasonable that the whole of that amount should be so added or, as the case may be, that any amount should be so added, the said authority may direct that such lesser amount as they may specify shall be so added or, as the case may be, that no addition to the compensation aforesaid shall be made.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 40 [Assessment of compensation in certain cases]:

THE LORD CHANCELLOR

My Lords, this clause deals with the compensation to be paid on the compulsory acquisition of unfit houses under the provisions of certain sections of the Housing (Scotland) Act, 1950. In effect, it provides that the compensation payable under those sections—that is, on the basis that the site is a cleared site, available for development in accordance with building regulations—will in future be only a ceiling for the compensation payable on the ordinary basis. The present Amendment makes it clear that this compensation to which the ceiling is in future to apply does not include the additional compensation payable under Clause 33, or the compensation for disturbance or severance or injurious affection payable under Clause 38. These were not included in the compensation to which the Housing Acts sections referred and must therefore be excluded from the comparison. I beg to move.

Amendment moved—

Page 47, line 21, at end insert— ("(2) In this section references to compensation are references to compensation payable in respect of the acquisition otherwise than by virtue of section thirty-three of this Act and exclusive of any compensation for disturbance or for severance or for injurious affection.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 43 [Exchequer contribution towards compensation in certain cases]:

3.45 p.m.

THE LORD CHANCELLOR

My Lords, Amendment No. 35 is little more than drafting, and corresponds to the Amendment to Clause 41, at page 52, line 20, which was made to the English Bill and approved by your Lordships. I think there is no doubt that the same improvement should be made in the Scottish Bill. I beg to move.

Amendment moved— Page 50, line 8, after ("applying") insert (",with any necessary modifications,").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 44 [Recovery on subsequent development, of compensation under s. 20 of principal Act]:

THE LORD CHANCELLOR

My Lords, this Amendment and the next are drafting Amendments. They correspond to Amendments which your Lordships have approved, and I think I can move them without further words. I beg to move.

Amendment moved— Page 50, line 13, leave out from beginning to ("shall") in line 14 and insert ("Subsections (1) to (9) of section thirty-one of this Act").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, I beg to move this Amendment, which I have explained also to be drafting.

Amendment moved— Page 50, line 18, leave out ("it has") and insert ("they have").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 46 [Right to compensation in respect of past planning decisions or past revocations &c. of planning permission]:

THE LORD CHANCELLOR

My Lords, Amendment No. 38 and the next three Amendments to Clause 46 are consequential on the amalgamation of Clauses 26 and 27, which I explained to your Lordships a short time ago. I beg to move.

Amendment moved— Page 52, line 32, after ("land") insert (",or of an interest in so far as it subsisted in qualified land,").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, I beg to move the next Amendment.

Amendment moved— Page 52, line 34, leave out ("and twenty-seven").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, I also beg to move the next consequential Amendment, No. 40.

Amendment moved— Page 52, line 38, leave out from ("if") to ("and") in line 42 and insert ("the reference in subsection (1) of the said section twenty-six to Part II of this Act were a reference to this Part of this Act;").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, I also beg to move the next consequential Amendment, Amendment No. 41.

Amendment moved— Page 52, line 44, leave out ("the said subsection (1)") and insert ("subsection (2) of the said section twenty-six").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, Amendment No. 42 arises out of two matters which, very briefly, I will put to your Lordships. Clause 19 (5), which this Amendment proposes should not apply to decisions given before the Bill comes into operation, relates to cases where compensation is payable under Section 20 (3) of the 1947 Act in consequence of the withdrawal of a planning permission previously granted by development order. Compensation in these cases is assessed as if the permission in question had been revoked. For the future, the compensation payable on a revocation will, as the result of Clause 41, cover the whole of the loss or damage caused by the order, and it is quite right that nothing further should be payable. But in past cases a claim should lie because the compensation payable under the 1947 Act excluded compensation for depreciation. For these reasons, I beg to move.

Amendment moved— Page 53, line 6, leave out ("to") and insert ("(3), (4) and").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 51 [Provision of information as to unexpended balance, &c.]:

THE LORD CHANCELLOR

My Lords, the first Amendment to Clause 51 and the next four Amendments all deal with a single point. Subsection (2) provides for the issue to an acquiring authority of a certificate stating the amount of the unexpended balance at the date of notice to treat. Subsection (3) already provides opportunity for those concerned to dispute any new apportionment involved in the calculation. But a second element is involved which may lead to differences of opinion—namely, the extent to which the unexpended balance should be written down under Clause 18 (4) to take account of any development of the land. The Amendments provide for this also to be the subject of representation and reference to the Lands Tribunal. I do not think any noble Lords will object to that. I beg to move.

Amendment moved— Page 58, line 43, after ("apportionment") insert ("or, in the case of a certificate under the last preceding subsection, involves the calculation of a deduction from the original unexpended balance of established development value of the land by virtue of subsection (4) of section eighteen of this Act,").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, the next Amendment, as I have indicated, is consequential. I beg to move.

Amendment moved— Page 59, line 7, after ("apportionment") insert ("or calculation,").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

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

Amendment moved— Page 59, line 8, after ("apportionment") insert ("or calculation").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, the next Amendment, No. 46, is likewise consequential. I beg to move.

Amendment moved— Page 59, line 14, after ("apportionment") insert ("or calculation").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, I beg to move Amendment No. 47—which, as I have explained, is consequential and deals with the same point.

Amendment moved— Page 59, line 19, after ("apportionment") insert ("or calculation").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, Amendment No. 48 does two things. First, it makes a certificate issued to an acquiring authority under subsection (2) of the clause conclusive evidence of the unexpended balance. I do not think noble Lords need have any fear of this, because those concerned will have had full opportunity of carrying the matter to the Lands Tribunal before the certificate was issued, and we feel that there should be no question of their being able to contest it again in arbitration proceedings under the Act of 1919. The second part of the new subsection obviates the need to produce evidence in support of any facts stated in a certificate under subsection (1) unless they are contested. This Amendment, again, corresponds to one which your Lordships have approved in regard to the English Bill. I beg to move.

Amendment moved—

Page 59, line 42, at end insert— ("(6) A certificate under subsection (2) of this section shall be conclusive evidence of the unexpended balance shown therein, and a certificate under subsection (1) of this section shall be sufficient proof of any facts stated therein unless the contrary is shown.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 52 [Cancellation or reduction of liability for development charges]:

THE LORD CHANCELLOR

My Lords, the Amendment to Clause 52 in my name is a drafting Amendment designed, I must admit, to remove a contradiction within the clause. I beg to move.

Amendment moved— Page 61, line 44, after ("section") insert (", except in subsection (4) thereof,").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 53 [Exchequer grants to local planning authorities]:

THE LORD CHANCELLOR

My Lords, I hope this Amendment may arouse some pleasure among your Lordships, even in the somewhat heavy succession of matters that I have put before the House. It deals with the playing fields point. I know that it was considered of great importance and desirability by your Lordships when we were discussing the English Bill, and for that reason may I vary my form and say that I have pleasure in moving this Amendment.

Amendment moved—

Page 63, line 35, at end insert— ("Provided that, in relation to—

1. (i) land acquired for use as a public open space; or
2. (ii) such part, if any, of any land appropriated as mentioned in subsection (2) of this section as is intended for such use, 1657 the regulations may provide that, if in any particular case the Secretary of State is satisfied that, having regard to the expenditure in, respect of which the grant is to be made and the financial circumstances of the local planning authority concerned, it is just that a higher grant should be made, the amount of the grant in that particular case shall be an amount equal to such percentage, exceeding fifty but not exceeding seventy-five per cent., of the costs, excess or expenditure aforesaid as the Secretary of State may determine.")—(The Lord Chancellor.)

On Question Amendment agreed to.

Clause 59 [Recovery, on subsequent development, of payments under s. 56 of principal Act]:

THE LORD CHANCELLOR

My Lords, this Amendment is identical with one moved by the noble Lord, Lord Silkin, in the Committee stage of the English Bill. Noble Lords will remember that I promised to consider it. I did consider and adopt it. The effect is to delete the provision whereby anyone developing land within twelve months of the coming into operation of the Bill would have become liable to repay any payment under Section 56 of the 1947 Act which might subsequently be registered against the land. Noble Lords will remember that this retrospective charge was strongly objected to. It is thought right that the fell shadow of retrospection should be removed also in Scotland and I beg to move.

Amendment moved— Page 72, line 44, leave out paragraph (b).—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 63:

Consideration in respect of discharge of acquired land from feu-duty, ground annual, etc.

63.—(1) Where a public authority possessing compulsory purchase powers has compulsorily acquired or has purchased, in pursuance of a notice to treat served, or, as the case may be, a contract made, after the commencement of this Act, the dominium utile in any land, and it is necessary to determine under section one hundred and eight of the Lands Clauses Consolidation (Scotland) Act, 1845, the amount of any consideration payable in respect of the discharge of the land from any feu-duty, or ground annual or other annual or recurring payment or incumbrance to which that section applies (not being stipend or standard charge in lieu of stipend), or from any portion thereof, the following provisions of this section shall have effect for the purpose of such determination.

Any reference in this section to a "relevant prestation" is a reference to any such feu-duty or ground annual or other annual or recurring payment or incumbrance (or any portion thereof) relating to the land as is mentioned in this subsection.

(2) The aggregate amount of the consideration payable as aforesaid in respect of all relevant prestations (in this section referred to as the "aggregate consideration") shall be an amount equal to the difference between—

1. (a) the amount of the compensation payable in respect of the acquisition of the dominium utile in the land, and
2. (b) the amount of the compensation which would have been so payable if the land had not been subject to any relevant prestation.

LORD SALTOUN moved, in subsection (2), to leave out all words beginning "an amount," down to the end of the subsection and to insert instead: determined either in the manner provided by the principal Act or by an arbiter mutually agreed upon.

The noble Lord said: My Lords, when I listened to the very impressive speech by the noble and learned Viscount on the Woolsack on Clause 36 of the English Bill and saw the great impression it made, I realised what a difficult task I should have this afternoon. The real point in the English Bill upon which I wish to intervene arose in the noble and learned Viscount's answer to the noble Lord, Lord Silkin, at an earlier stage of the proceedings. He then laid great stress upon the argument that acquisition by a local authority of lands subject to a feu-duty left the value of that property much enhanced. I felt my difficulty the more because I realised how easy it was for noble Lords to underestimate the value of that argument owing to their very familiarity with English ground leases and the system of ground rents, with which, naturally, they tend to compare a feu-duty. The truth is that the two things could hardly be more unlike.

A feu is a grant of land for all time—I am not trying to give an accurate legal description. I wish I had the time and knowledge of my late noble and learned friend, Lord Macmillan, who was a great authority on this matter. A feu is a grant of land for all time often upon condition that the vassal (the grantee) is called upon to build upon the land a house of a certain kind. Often there are conditions in the charter which prevent the vassal from doing things which would annoy, or might tend to annoy, his neighbours. In practice to-day the supervision of that part has largely fallen upon the local authority and the superior's function in that respect is practically at an end. I do not mean that he is never called in. I gave an instance at the last stage of the Bill where he is called in, but in practice that is a very small matter. Generally the superior has no power to prevent the sale of the property to anybody, not even to a man of straw. The only way in which he comes into the matter is that unless he receives notice of change of ownership he looks to the feu holder whose name is on his register for collection of his feu-duty. When he gets notice of change of ownership he has to accept it.

He has no power to resume possession save in one case. If two years' feu-duty is in arrear—one of which years must be the year immediately preceding the current year—and if the superior's title is complete, he can resume possession of the subject of the feu by a process known as "irritation." The vassal, however, has only to pay up one year's feu duty—that for the immediately preceding year—to avoid irritation; so he is in a very strong position. So rare is this process that it is true to say a great number of superiors in Scotland have not fully completed their titles. They sit by mere succession, because it is so rare that one ever has to irritate a feu. I had to do so once myself. It was a derelict property, but no question then arose as to the personal liability of the feuar, though the feuar would have been very well able to pay. I do not know, but a week has elapsed since the last stage of the Bill, and I spoke upon this matter at that stage, and I would challenge the noble and learned Viscount the Lord Chancellor to produce a single instance of such liability in Scotland in the nine years since the war. I do not believe that in the whole of Scotland in that time there has been a single instance in which personal liability of the vassal has been invoked over derelict property if an irritation was in progress.

I have always looked upon this argument of the Lord Chancellor's as quite academic. But even if it is not, even if examples can be produced in which feu-duties have increased in value on their acquisition by a local authority, I think they must be very exceptional. And I put forward this proposition: that it is a great mistake to make a Public General Act to meet purely exceptional cases. The truth is that these feu-duties are so low, in relation to the cleared site value of the property, that they are always considered to be very good investments, and in Scotland they are largely treated as investments. I have examined good feu properties of the best class, and I find the proportion of the feu-duty to the annual value of the properties to be less than one-twelfth. With most properties of older dates the proportion would be much less, and I should imagine that one-thirtieth would be near the average over Scotland as a whole. I could produce examples of feu-duties which are less than one-fortieth, and the "gearing," as it is called in investment matters, is extremely high. Your Lordships will realise, I think, that even if the Bank of England were to buy a feu it would not increase the value of the feu-duties very much.

Even if there is any validity in the Lord Chancellor's argument in respect of derelict property, it is extremely easy for a competent valuer to discount correctly the special stability of a local authority. It is the more easy because there is a regular market in feu-duties, and a valuer of reputation has to keep himself in touch with prices of feu duties of different classes. Those prices are in relation to the normal general public market of the country and do not have any relation to acquisition by a local authority. For over a hundred years the local authority has had the right, upon acquiring the possession of the property, to acquire the superiority—that is the feu-duties—if it is so desired. That has led to absolutely no difficulty, because there is always a market in such things and they were valued either by a professional valuer or by the sheriff. The value is decided either by the sheriff or by mutual reference to a properly skilled valuer, and the two methods are really in essence the same, for, of course, the sheriff has the services of a professional valuer to help him. These feu-duties are so secure that they have lone been considered an excellent form of investment, more or less secured by the nature of the property, which influences the ease or difficulty of collection of the feu-duties. For example, the Merchants Company of Edinburgh own the whole of the superiority of Peterhead. The "Auld" Kirk of Scotland and the Free Kirk used to own considerable superiorities. I do not know whether they retain them, but I rather believe they do.

The reason for my objection to the present clause and for my Amendment is that the clause substitutes for the old method of having these marketable subjects valued in the market at the current rate a subtraction sum. The freehold is to be valued, the price paid for the property is known, and the difference between the two is to be taken as the value of the superiority. I should like your Lordships to consider why. The Lord Chancellor told us in Committee—your Lordships will find it in the OFFICIAL REPORT for Thursday last (Vol. 189, col. 1388): … the total amount payable by the acquiring authority in compensation to the owner and on redemption of any feu-duty shall not exceed the compensation which would have been payable had the land been in one ownership and free from feu-duty or other burdens He did not add, but it follows inevitably, that if the acquiring authority paid too much for the property they have in this way recourse against the owner of the superiority, because, of course, he gets a lower sum for his feu-duties.

If the property had been in one ownership the owner of the property would have been a party to the bargain; he would have been in negotiation; he would have been dealing with his property. But the fact is that the owner of the superiority has nothing to do with it. The bargain is made without any reference to the superior, who has no title to be informed. There is no reason why he should be. He may be completely ignorant of the matter. And I may tell your Lordships that in nine cases out of ten in Scotland, the superior is completely ignorant when subjects change hands. He is advised only when the transaction is complete. So he is practically in the position of a man whose purse is at the disposal of a gambler. He has no control as to how the money goes, and he has no share in the winnings, if there are any. The owner of the superiority not only has nothing to do with it and probably does not know anything about it, but he does not benefit if the local authority get the property too cheaply. If the local authority get the property too cheaply, they are not compelled to acquire the superiority. So the superior does not benefit.

On the other hand if they pay too dearly, even if only by a little, he stands to suffer greatly. Your Lordships will see that the local authority have only to pay 5 per cent. too much for the property they are acquiring—and 5 per cent. one way or the other is very easy in dealings of this kind—for him to lose his compensation. The proportions are so highly geared that if the values were accurately determined and the feu-duties were only one-twentieth of the annual value of the property, the 5 per cent. excess payment would wipe out, under this subtraction sum, the whole of his compensation for the loss of his superiority. I am aware that in such an extreme case the sum would be "cooked," because it would otherwise lead to a big scandal—and I will show your Lordships how the clause provides for the "cooking" of the subtraction sum.

I should like to take a typical case, that of a burgh I know something about, which is situated almost in the geographical centre of Scotland. The superior is a man who has been suffering for the greater part of his life from ill-health resulting from injuries which he received in the First World War. In consequence partly of that and partly of other difficulties, he has been compelled to sell his family property and go and live somewhere in the south where the climate is more suitable to his health. The only thing he has retained are the feu-duties, his superiorities in the neighbouring burgh. I believe it is true that at one time he wanted to sell them, but the price offered for his feu-duties was eighteen years' purchase. Because he thought that was not sufficient for an investment of that security, he did not accept that offer. So that here we have feu-duties that are worth at least eighteen years' purchase, and possibly more. I suppose (I do not want to take extravagant figures) they amount, in all, to one-twentieth of the annual value of the properties in the burgh. Under the clause, if the local authority wish to buy up a portion of the borough for clearance for development and if they pay, as I have suggested, only 5 per cent. in excess of the value, then that will wipe out the whole of the compensation for the loss of the superiorities, if the law we are being asked to pass to-day is adhered to strictly.

But the matter does not end there. There is no compulsion. The local authority may not wish to acquire the superiorities, even though they could get them at a very cheap rate. Under the Bill as it is before your Lordships, that situation may go on for five, ten or twenty years. Suppose this man wishes to realise the capital value of his property and to sell his superiorities to somebody else, who will buy them? Nobody is going to buy a superiority with a threat like that over it, where the local authority can come in and buy a portion of the feu-duties at such a ruinous rate. I am perfectly aware that with great organisations like the Church of Scotland that would not be allowed to happen. Nobody is going to give a raw deal to an organisation that has an agent in every parish of the country, and I will show your Lordships how the Bill before us gives a loophole by which that can be avoided. It is this: the feu is so popular in Scotland that in many areas freeholds for urban property are practically unknown. To all intents and purposes a feu is a purchase of land for building a house, though one does not put down the capital value of the land but pays the interest on that capital value to the superior. In many cases people buy a feu under what is called blench title, under which they undertake to pay a penny a year if called upon—but, of course, it is never called for. That form of holding is so common in Scotland that in many areas there are practically no freeholds in burghs. There is no market in freeholds and practically all the market in land is in blench title. That makes things very easy, but of course there is a certain amount of estimation when we come to the capital value of a freehold. I expect that when the sum has to be "cooked" there will be a little adjustment in the value of the freehold. Nobody will produce a result that is scandalous with respect to great bodies like the Kirk and the Free Church but I say that every small man who is the owner of feu-duties is liable to be caught by the machinery provided by this Bill and to be dealt with hardly.

Your Lordships must remember that feu-duties are so popular as investments that they form security for loans from banks and insurance companies. I think that the banks and insurance companies will have to look to their security very carefully if this clause comes into operation, because they will have to consider what is likely to be the residue of the subtraction sum with respect to the feu-duties which form their security. I think that is a very unfortunate result to follow from this Bill. In conclusion, I would say that this clause substitutes a machine the fair working of which is difficult and demands constant adjustment and constant supervision for a method that has lasted for a hundred years without giving any trouble at all and which is easily and rapidly put into practice. I think the move is a mistake, therefore I have drafted an Amendment which will keep the old system of valuation and assessment in being. I beg to move.

Amendment moved— Page 75, line 20, leave out from ("be") to end of line 26 and insert ("determined either in the manner provided by the principal Act or by an arbiter mutually agreed upon.")—(Lord Saltoun.)

LORD SILKIN

My Lords, I am sure that all of us listened with great interest and instruction to the noble Lord's statement on his Amendment. Certainly I have benefited by his explanation of new methods of "irritation" of feu-duties and so on. I have tried to follow the noble Lord. It seems to me that, with all his eloquence, he was trying to establish an untenable proposition. He was trying to establish that where a local authority acquire an interest in land, it should be possible for the local authority to pay more if the interest is in two hands than if it is in one. I thought his argument was that it might be possible to "cook" the price of acquiring one interest so as to leave the price for the second interest, the interest of the superior, at an unfair value. I do not know how this can arise, but I am sure that the result the noble Lord wishes to achieve must be wrong. It cannot be right that the local authority should pay more because the interest is divided as between two persons than if the interest were held by one. That would be grossly unfair to the public. Therefore, I feel that whatever may be the noble Lord's remedy for preventing "cooking," this is not the right way to do it. As I understand the noble and learned Viscount's clause, and his support of it, it was that we should in no circumstances pay more because an interest is divided, and I am sure that that must be right.

4.20 p.m.

THE EARL OF MANSFIELD

My Lords, my noble friend Lord Saltoun has made an eloquent and factual appeal to the noble and learned Viscount. There is just one small point—an academic point—on which I would venture to correct the noble Lord, though his knowledge of the subject is much greater than my own. He said that it was not possible ever for the superior to interfere with the sale of the subject. There is one exception to that—when the original feu charter has carried with it what is called the right of pre-emption (I myself have at least one); that is to say, the original feu charter ensures that if and when the vassal or his successor should offer the property in the market he is obliged to offer it to the superior also at the highest offer which he, the vassal, receives. There was an instance of this a few years ago in the North-East of Scotland, when the superior of a village purchased a small local shop, afterwards disposing of it, I believe, at a loss to himself, because he did not consider the acquisition of the shop by the multiple concern that proposed to acquire it would be a good thing in the interests of the other shopkeepers in the village. That is another example of a superior acting, not in his own interests but in the interests of the community generally.

I think the noble Lord, Lord Silkin, has entirely mistaken the real point. It is not whether or no the local authority are to pay a greater value when there are two owners of the subject, if I may put it loosely, than when there is only one. The real point is, would you allow a company to destroy the assets of the debenture holders in favour of those of the ordinary shareholders? Because, as my noble friend Lord Saltoun has said, feu-duties have for a very long time been regarded in Scotland as the equal of any trustee security. It is not so much the merchant companies or larger landowners who are going to suffer greatly from this clause; the worst sufferers will be small people, who have themselves invested their savings or inheritance, or have had it invested for them by trustees, in feu-duties, in the hitherto certainty that those feu-duties represented values which could never be destroyed. If, then, it is now to be possible to place such a large proportion of the value of the sale of any subject on the buildings of the subject, and reduce the proportion payable on the feu-duty, as my noble friend Lord Saltoun has said, that will immediately wipe out largely, and possibly entirely, something which the owner has hitherto, with, perfect propriety, regarded as being as safe as the Bank of England, or as any of our Scottish Banks, which are just as safe.

I feel that the noble Lord, Lord Saltoun, has made out a case for doing something to preserve the interests of these superiors of feu-duties. I agree that it would be wrong that a local authority should pay an extra price, but I feel that it is the superior who should have the first slice of the cake and the owner of the buildings who should get what is left, because, when any house or other property which bears s feu-duty in Scotland is offered for sale, the amount of that feu-duty is always disclosed. The person buying the property knows quite well that he has that burden to face, and accordingly offers a correspondingly reduced amount for the buildings on the subject. Therefore, should he receive, on the acquisition by the local authority, only the proper value of his buildings, and should the superior continue to receive the proper capitalised value of the feu-duty, then justice would be done; but not otherwise. I hope that the noble and learned Viscount on the Woolsack may be able to meet us on this point, or, if he cannot do so to-day, that he will give serious consideration to the point and, if necessary, be prepared at a later date to introduce amending legislation.

VISCOUNT STONEHAVEN

My Lords, I cannot see that the system of valuing properties should give rise to an increased value. If a property is valued by a valuer, no matter how many people own it, then, if the value assessed is a fair one, it cannot be an enhanced value. I find that a difficult point, and I cannot understand why the noble Lord, Lord Silkin, says that the local authority would be paying more for a property because two people owned it than if one person owned it. If the property is valued by a valuer, then, to my mind. the figure he gives is the value. On that point I should like to support my noble friend.

4.26 p.m.

THE LORD CHANCELLOR

My Lords, I have listened with great care to all the arguments that have been advanced and, so far as I can see, there are really three points to which your Lordships must address your minds. The first is the basis of the clause, which the noble Lord, Lord Silkin, has just underlined; that is, that the payment to the vassal, plus the payment to the superior, must not exceed the basic payment, which is the payment for existing use, plus the claim on the development fund. As I have indicated, that position we must stand by, because it is essential to the Bill and essential to this clause. I was not sure from what my noble friend Lord Mansfield said whether he was conceding that as an equitable position.

THE EARL OF MANSFIELD

Certainly.

THE LORD CHANCELLOR

Then I interpreted correctly what my noble friend said. If we are agreed on that point, that this special position of superior and vassal should not attract greater compensation, I will now put the difficulty in the way of the Amendment which my noble friend Lord Saltoun has moved.

He started from a position with which I do not quarrel; that is to say, that in the ordinary case the personal liability of the vassal, the personal covenant (the term with which we are more familiar) is really a small consideration. That is so, in so far as one is concerned with the personal liability of the vassal so far as the private market for feu-duties is concerned. Your Lordships will appreciate that it is partly for that reason that we have felt there is no injustice in founding the superior's compensation on the real value of the land, as Clause 63 does, and in disregarding any element of personal obligation. But, as I endeavoured to explain when I moved the Second Reading of this Bill, the situation is quite changed when the acquiring authority have taken a "schedule title" and are about to redeem a feu-duty. I am advised (and naturally, after the speech of my noble friend, I have gone into this matter carefully) that in such a case an arbiter, to whom the question of the consideration to be paid on the redemption of a feu-duty may be referred under Section 108 of the Land Clauses (Consolidation) (Scotland) Act, 1845, would probably assess the compensation on the basis that the acquiring authority stood in the place of the vassal at the material time for assessing compensation, and that their financial standing ensures payment of the feu-duty in perpetuity. I must say that that advice seems to me to be sound.

In the ordinary way the vassal can dispose of his interest to a man of straw and, as I have said, and as I think my noble friend Lord Saltoun conceded in the commencement of his argument, there is little value in the personal consideration because it can pass to someone from whom no money can be obtained. But if you substitute for that position a local authority which acquires the dominium utile and that local authority is there, and can be looked to for the money, then, of course, the arbiter whom my noble friend postulates in his Amendment would have to take that matter into account, and would have to add to the consideration offered to the superior the value of the local authority's personal liability. That is the difficulty in which we find ourselves. Once the local authority has acquired the dominium utile, that is the situation which must be valued. That is why, with the greatest consideration, I have not been able to accept my noble friend's Amendment, because it really would be unthinkable that, because of that situation, because the local authority has acquired the dominium utile, the superior would get as much in the case of a slum or derelict property as he would in the case of a property in first-class condition. That would be, as I see it—and I have not been able to discover the answer—the inevitable result of my noble friend's Amendment.

The third point made by both my noble friends is that there is some doubt whether the superior would get a fair crack of the whip (if I may use a colloquial term) vis-à-vis the vassal. I am not at the moment going into the question of whether there is a market in feu-duties of dilapidated properties. It is clearly a chancy form of investment, except where there is considerable re-development value in the site. But I think one must consider the third point—that is, that mistakes will be made in the valuation of the dominium utile, and that such mistakes will fall upon the superior. I do not think my noble friend Lord Saltoun, although he used for our amusement the word "cook," really meant to imply that any sinister procedure would be taken. I want to put that idea out of the way, in case any mistake has taken place. I think I am putting it perfectly accurately in saying that if a mistake is made over the amount paid for the dominium utile—that is, the vassal's interest—then the result of that will in some cases fall on the superior and not on the vassal.

May I put the answer to my noble friend as it appears to me? The procedure which he is discussing contemplates that the local authority will first of all acquire the dominium utile, the vassal's interest. In doing that, undoubtedly the local authority will need to have behind it a State grant, because the local authority will be using powers under which a State grant is given. Where a State grant is in question, or State approval of the purchase, or if loan sanction be required—and one of these things must inevitably come into the picture—the Valuation Office invariably conduct the negotiations on behalf of the acquiring local authorities. The acquiring local authority may not pay more than the district valuer's figure. I have just as much interest (and when I say interest, I mean intellectual interest and nothing more) in valuation as has my noble friend Lord Saltoun. It has always been one of the matters in my profession that I have greatly enjoyed having anything to do with. It is, I think, one of the most fascinating combinations of fact and imagination in the activities of man. I mean that quite seriously in answer to the noble Lord.

I fear that the practical result of what. I have said is that the local authority may not pay more than the district valuer's figure. The district valuer has wide experience of estate duty, compulsory acquisition and any number of matters, and it is his duty to see that the local authority does not pay more for the dominium utile than the proper price. The situation which my noble friend envisages is founded on the hypothesis that the local authority will pay more for the dominium utile, and that therefore there will not be enough left for the superior. If I have not convinced my noble friend, I hope that I have convinced him that I have tried to apply my mind to a difficult question, and that the position I am taking up in rejecting this Amendment is necessary for the purposes of the clause. It is necessary because of the actual result that, as I have been advised, his Amendment would have. There is, in my view, every probability and likelihood that the fact that the district valuer will do the negotiations will obviate the risk of the mistake which my noble friend fears. Had it been the other way, I could have appreciated his difficulty more, but when the duty of the district valuer in this case is to see that the local authority does not pay more than is proper, then I think (and this is what the noble Lord wants in order to protect the superior's interests) there is every likelihood of point being met.

If I may for a moment wander, my noble friend was good enough to begin his speech by a reference to an old friend of many of us here, the late Lord Macmillan. One of Lord Macmillan's favourite stories which he used to apply to members of the Bar who went on too long at the time when the noble and learned Earl, Lord Jowitt, and I practised (I do not know whether he applied it to either of us) was the old story of the lady in the Church in Scotland who was asked by a late entrant, was the Minister finishing his sermon. She said, "He finished a long time ago, but he is no' clone." I fear that your Lordships may have the same feeling with regard to my speeches, and I ask you to believe that it is because I know how much thought and study my noble friend has given to this that I was anxious to make what I regarded as an adequate reply. For the reasons I have given, however, I regret that I cannot accept his Amendment.

LORD SALTOUN

My Lords, in reply to the noble Lord, Lord Silkin, I should like to put the point in this way. You have a market in feu-duties and you have a market in blench titles. Very often you have not got a market in freehold. This valuation starts from a freehold which is a fancy figure, and the relation of feu-duty, to dominium utile is so geared that a slight excess in the figure for the one—I will not repeat that argument—will cause a big diminution in that for the other. If you get a case which looks like being scandalous, then any valuer will have to say, "There is something wrong here. That figure I know pretty certainly and that figure I know pretty certainly, but it is in this figure—and it is the freehold figure—that I must be wrong." That is what I meant by "cooking," because it is the one uncertain figure. And it is the point from which you start in the clause which is before us. That is the whole point of what I was saying.

I apologise to my noble friend Lord Mansfield. He is perfectly right. A very large class of feu charters contain the right of pre-emption. It is seldom exercised. It is exercised only in some such cases as the noble Earl has mentioned. Between myself and the noble and learned Viscount on the Woolsack there is, I am afraid, a real difference. I appreciate very much all that he said and the tone in which he said it, but there is a real difference between us in this matter. It is on this question of the accretion of enormous value to the superiority of a dominium utile acquired by a local authority, because, in my experience, feu-duties are as a rule so low in relation to the cleared site value of the land that they are secure in any circumstances, or, if they are not secure, you can nearly always make your market out of the land yourself. I should like to press my Amendment. I do not feel inclined to withdraw it, but in view of the lack of support in the House I will not force a Division if my dissent can be recorded.

On Question, Amendment negatived.

Clause 67 [Provision for diversion of payments]:

THE LORD CHANCELLOR

My Lords, you will be relieved to know that this is a drafting Amendment. I beg to move.

Amendment moved— Page 79, line 30, leave out ("as defined for the purposes of Part IV") and insert ("within the meaning of subsection (3) of section forty-one").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Seventh Schedule [Compensation, on compulsory acquisition, for severance and injurious affection]:

THE LORD CHANCELLOR

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

Amendment moved— Page 98, line 40, at end insert ("in which the interest in question subsists;").—(The Lord Chancellor.)

On Question, Amendment agreed to.

4.43 p.m.

Then, Standing Order No. 41 having been dispensed with (pursuant to Resolution):

THE LORD CHANCELLOR

My Lords, I have it in command from Her Majesty the Queen to signify to the House that Her Majesty, having been informed of the purport of the Town and Country Planning (Scotland) Bill, has consented to place Her Majesty's interest so far as it is concerned on behalf of the Crown at the disposal of Parliament for the purpose of the Bill.

It now falls to me to move the Third Reading of the Bill and, after the consideration which your Lordships have given to it at all stages, I think I can do that very briefly. I should like to remind the House, however, of two main points. The first is that your Lordships have made important Amendments to the Bill. If I may give some examples, I would point out that we have extended the period in which transactions qualifying for Case B payments may have taken place. Then we have inserted a provision enabling a more generous grant to be paid in certain important cases, particularly for playing fields. A new clause has been inserted to make it easier for compensation rights to be ascertained in cases where an application for planning permission for industrial development is not accompanied by the necessary certificate of the Board of Trade. Last among my examples, I would point out that your Lordships have adopted this important clause, which, as I have said, has as its object the prevention of other cases such as that which distressed many people—the case of Mr. Pilgrim.

I should like to say how grateful I am to your Lordships for the time and attention which you have devoted, particularly to the Scottish provisions of the Bill. I have done my best to deal with these in addition to our general Amendments. In the course of our debates on this legislation many of your Lordships have mentioned the difficulty of making the Act clear and plain to those who are concerned. That was discussed at various stages in both Bills. I have had that point very much in mind and I thought it might be of some comfort to your Lordships to know what steps are to be taken in this regard. First, there will be an explanatory paper issued by the Scottish Office, and there will also be an explanatory paper issued by the Central Land Board. But I do not think that these alone would satisfy your Lordships. I am glad to be able to inform the House that in the various parts of Scotland lectures will be given by experts in the matter, which members of all the law agents' societies can attend, to hear an explanation of the Bill and also to ask questions on points which may cause them doubt. That procedure was followed in regard to the Scottish Town and Country Planning Act, 1947. I wanted to assure your Lordships that that course will be followed again, in order that this matter may be brought to the level—which I think is the right level—of practice points, of concern to all those who are dealing with cases.

I have taken up so much of your Lordships' time that I do not feel I ought to trespass further, except to say one personal word. After nearly twenty year in Parliament, both in another place and now here, this is the first time that I have had the honour of moving and of being in charge of a Scottish Bill. I should like to say how much pleasure it has given me, and to thank your Lordships for your great kindness and patience to me in my carrying out of that task. I beg to move that this Bill be now read a third time.

Moved, that the Bill be now read 3^a.—(The Lord Chancellor.)

4.49 p.m.

LORD MATHERS

My Lords, before we part with this Bill I should like to say a word, and it is principally a word of warm appreciation and deep gratitude for the way in which this measure has been dealt with by the noble and learned Viscount on the Woolsack. I thank him especially for that last important word he said, about the way in which an endeavour will be made to present the Bill to a wide audience in a simple way. I hope that, although the Bill itself has not succeeded in being simple, at least the explanatory memoranda that will be issued and the other efforts that will be made to make the terms of the Bill fully known will be in language that the layman can understand. As noble Lords know, I deliberately handed over to the noble Lord, Lord Silkin, the responsibility for handling the Bill from this side of the House. I said that I had arranged with him for the usual commission that is paid in this regard, and I now want to make that payment: it is a payment of particularly deep gratitude to him, and great appreciation for the way in which Lord Silkin has made sure that nothing has been overlooked during the passage of the Bill. I believe I speak for everyone in the House in saying that. That may seem a poor return to Lord Silkin, but I most heartily thank him for the excellent work that he has done in connection with this Bill. It was only to be expected that the noble and learned Viscount would be ready and willing to do something for his native land—that is part of the loyalty that he must pay for the privilege of being a Scotsman. But Lord Silkin was not under that obligation, and therefore I am all the more grateful to him for the services that he has rendered to this House and to Scotland.

THE MINISTER OF STATE, SCOTTISH OFFICE (THE EARL OF HOME)

My Lords, may I just add a word of appreciation to what the noble Lord, Lord Mathers, has said in regard to all those who have been engaged on this Bill? I am sure that everybody in Scotland is grateful to the Lord Chancellor for applying to this Bill his great knowledge of the subject, and for his sympathetic understanding of our somewhat peculiar Scottish problems. I am sure that everybody is most grateful for the way in which the Bill has been handled, not only by the Lord Chancellor but by my noble friend Lord Selkirk, who bore a great deal of the burden of the discussions on the Bill during the Committee stage in your Lordships' House.

4.52 p.m.

THE EARL OF MANSFIELD

My Lords, the noble and learned Viscount certainly deserves the thanks of your Lordships' House and of Scotland for the way in which he has handled this Bill. It is a great gratification to us all that a Scotsman who has made such a tremendous and deserved reputation, both at the Bar and in another place, should have had under his charge, as one of his very first duties in your Lordships' House, the most successful piloting of this important measure. The way in which the noble and learned Viscount has met, or at least, has done his best to meet, the criticisms put forward augurs well for his relations with all of us (particularly the more critical ones) during his tenure of his high position, which we must all hope will be extended for many years. But, having thus given my noble and learned friend his well-deserved—not a spoonful but a large jar of—"jam," I hope that he will forgive me if he finds at the bottom a very small grain of medicine, because there is one great flaw in the Bill—namely, the matter which we have just discussed upon the Report stage.

I am going to be presumptuous enough to say that I do not think the noble and learned Viscount yet quite appreciates the full position of feu-duties in Scotland, because, as I have said already, this is a case where the Government are taking all the different kinds of shareholdings in a company and mixing them up with the debentures, so that the debenture holder is going to be no better off than the holder of ordinary shares. As a result, I am afraid that there will be a certain amount, possibly a considerable amount, of hardship, which will fall upon those least able to bear it. I hope that my noble and learned friend may be right and that we who have criticised this Bill may be wrong. I am sure that the noble and learned Viscount will keep a careful eye upon the position and even, if necessary, consider remedial measures. I feel that he has done an excellent job in the way in which he has dealt with this Bill, and I am sure that Scotland will be deeply grateful to him.

On Question, Bill read 3^a, with the Amendments, and passed and returned to the Commons.