HL Deb 17 December 1962 vol 245 cc879-98

2.45 p.m.

Order of the Day for the House to be again in Committee read.

Moved, That the House do now resolve itself into Committee.—(Earl Jellicoe.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

Clause 33 agreed to.

Clause 34 [Licences of right for statutory users]: (3) If the relevant statutory provision does not specify or otherwise limit the quantity of water authorised to be abstracted, then (subject to the next following subsection) the provision made by the licence as to the quantity of water authorised to be abstracted shall be such as the river authority consider appropriate, having regard to the terms of the relevant statutory provision and to such of the following matters as are applicable and are proved to the reasonable satisfaction of the river authority, that is to say— (a)

LORD SINCLAIR OF CLEEVE moved, after subsection (3) (c), to insert (d) the extent to which the source of supply in question has during the relevant period been, or is intended to be, used—

  1. (i) in conjunction with other sources of supply;
  2. (ii) to meet maximum demands;
  3. (iii) during certain months of the year only;"

The noble Lord said: A great deal remains to be done on this Committee stage, and I shall therefore endeavour to be brief in moving this Amendment. Subsection (3) deals with a case where the abstraction is made under a statutory provision which neither specifies nor limits the quantity to be abstracted, and it seeks to specify the matters which the river authority shall take into considertion, in so far as such matters are applicable, when determining the quantity licensed for abstraction from a particular source. These matters, listed in para- graphs (a) to (e), are clearly intended to be comprehensive or inclusive, for they are prefaced by the words, "that is to say", and not, "for example". Now the Amendment proposes a new paragraph (d), and if that paragraph (d) is accepted then the existing (d) would become (e) and the existing (e) would become (f).

The matters covered by the Amendment are no less relevant, I think, than others already listed, and are more important than some. I do not wish to weary the Committee by attempting to enumerate all the circumstances which the Amendment might cover: I would merely give this very brief explanation. First, where the right of abstraction relates to a particular source in conjunction with other sources, that is clearly a relevant consideration; secondly, the maximum or peak demand is of great importance in this connection, and it is something quite different from the total quantity abstracted or the special occasions or emergencies referred to in the existing paragraph (d); and, thirdly, there may well be in certain cases perfectly sound and sensible arrangements for confining abstractions to certain months of the year as a stated seasonal period—for example, boreholes operated as a group with provision for certain boreholes to be arrested for certain periods. These may perhaps seem rather fine distinctions, but I believe they have some practical significance; and if the present form of subsection (3) is to be preserved, then these points should be covered.

Before, however, formally moving the Amendment, may I say that if, on further consideration, the Government would prefer to omit the last phrase of the opening sentence of this subsection, to make it read—and I quote here: … having regard to the terms of the relevant statutory provision and to such facts as the river authority or the applicant for the licence may consider relevant", and there finish, that might well be the best solution. An attempt to give in this Bill a list of relevant matters which will prove to be completely comprehensive is, I think, dangerous. Before these river authorities come into being I am sure someone will think of something else, however perfectly that list is drawn up. If, however, the Government prefer to adhere to the form of subsection (3) as drafted, then I hope that the new subsection incorporated in this Amendment may be accepted. I beg to move.

Amendment moved— Page 31, line 29, at end insert the said paragraph.—(Lord Sinclair of Cleeve.)

THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF HOUSING AND LOCAL GOVERNMENT (LORD HASTINGS)

This Amendment, and the following one, which will presumably be moved in a moment by the noble Lord, Lord Sinclair of Cleeve, would alter the factors in subsections (3) and (4) governing the determination of the quantity of water which a licence of right is to authorise to be abstracted. The Amendment would require consideration to be given to the extent to which the source of supply in question is an auxiliary source used along with other sources, or for peak or seasonal demand. Subsection (3) as drafted would take account, at paragraph (b), of any seasonal characteristics of an abstraction, but not in the sense of abstraction to meet seasonal peaks of demand, which appears to be in mind in this Amendment. The Amendment prompts further consideration of subsection (3), but it could not be accepted as it stands, for consideration ought to be given at the same time to the subsection as a whole and to the next following subsection, subsection (4).

In respect of the further suggestion made by the noble Lord, Lord Sinclair of Cleeve, that some other, more general, phraseology might be better rather than attempting a comprehensive assessment of all the factors to be taken into account, that is for consideration, but one's first reaction to it is, I think, that it would be to leave the river authority and the applicant to decide what factors should be taken into account. The practical consequence would probably be to land the Minister, by way of appeal, not only with arguments about the value set upon certain factors but also about what factors should be brought into account. And it may well be that this particular farm of Amendment would be more likely to slow down the process of settling licences of right and impede the working of the machinery than the present form of drafting. But in any case we feel that further consideration can be given to these subsections and the following subsection; and if the noble Lord would like to withdraw his Amendment now, either in the printed or in the verbal form, consideration will be given to that matter.

LORD SINCLAIR OF CLEEVE

I am grateful to the noble Lord, Lord Hastings, for his assurance and on that assurance I am happy to withdraw the Amendment.

VISCOUNT ALEXANDER OF HILLSBOROUGH

We have had the ordinary, detailed, what I call Civil Service answer, and I am happy to think that this matter is going to be reconsidered. But is it going to be effective only in respect of the larger and important public and company water undertakings or is it likely to spread to individual cases of farmers abstracting? It wants a little looking into. I have not heard all the surrounding matters, but I hope nothing will be done to interfere with the substantial rights of individual owners.

LORD HASTINGS

The clause is of course dealing with the licensing of rights for statutory users. The following clause deals with non-statutory users.

Amendment, by leave, withdrawn.

EARL WALDEGRAVE had given notice of his intention to move to leave out subsection (4). The noble Earl said: I feel it is hardly necessary to move this Amendment now, but I will do so in the briefest way after the very satisfactory reply that the noble Lord has given to the previous Amendment. The purpose of this subsection is simply to impose an overall limitation. By the method in which this clause is set out now, all these considerations have to be taken into account when determining how much water should be licensed. Then subsection (4) says, almost as a proviso, that in any case it cannot be more than the machinery at present installed, or likely to be installed, can use. I will not enlarge on this, because if the whole clause is to be looked at again then this subsection would have to be looked at too. I think perhaps it is best if I do not move this Amendment.

THE CHAIRMAN OF COMMITTEES (LORD MERTHYR)

I think if the noble Earl makes a speech it would be better if he would formally move.

EARL WALDEGRAVE

I beg to move the Amendment formally.

Amendment moved— Page 31, line 40, leave out subsection (4).—(Earl Waldegrave.)

LORD HASTINGS

There is just one word I should like to say in reply. The provision in the subsection as drafted is right in principle, but it can be admitted that (there is some possibility it may be too restrictive in that although it refers to plant installed or in process of installation, it takes no account of plant specifically authorised but where installation has not begun. I will not enter into the argument of the noble Earl about general finite restriction. We are dealing only with the licence of right, and that does not affect the fact that a further consideration may be given. This clause, as I said previously, will be looked at again also in the light of what has been said.

EARL WALDEGRAVE

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 34 agreed 10.

Clause 35 [Licences of right for non-statutory users]:

2.55 p.m.

LORD MERRIVALE moved to leave out Clause 35 and to insert the following new clause

Licences of Right for non-statutory users

35.—(1) The provisions of this section shall have effect where an application under section 33 of this Act is made in a case falling within subsection (1) (b) of that section; and in this section the relevant period' shall mean the period of five years ending with the second appointed day or the period beginning with the date on which the applicant or his predecessors began to abstract water from the source of supply in question and ending with the second appointed day, whichever is the shorter.

(2) The provision made by the licence as to the quantity of water authorised to be abstracted shall be such quantity as has been proved to have been abstracted to the reasonable satisfaction of the river authority, having regard to—

  1. (a) the quantities of water abstracted by the applicant or his predecessors from the source of supply in question during the relevant period;
  2. (b) the seasons of the year during which those quantities of water, or the greater part of them, were so abstracted;
  3. (c) the extent to which works, machinery or apparatus were reasonably provided by the applicant or his predecessors in anticipation of future requirements

(3) The provision made by the licence as to the quantity of water authorised to be abstracted shall be such as will not permit the abstraction of water in excess of the quantity shown to the reasonable satisfaction of the river authority to be capable of being abstracted by means of works, machinery or apparatus which were constructed or installed before the second appointed day, or were in the course of being constructed or installed on that day, not being works, machinery or apparatus provided for use only in the event of an accident or other emergency involving a total or partial failure of other works, machinery or apparatus."

The noble Lord said: I beg to move the Amendment standing in my name and the name of Lord Fraser of Lonsdale. I hope that it will commend itself to your Lordships, for its purpose is to bring licences of right for non-statutory users in line with those for statutory users. The Committee will no doubt note a certain similarity between this new clause which I am proposing now and the provisions of the previous clause, Clause 34, in the Bill. Also the Committee will no doubt note that subsection (1) in this new clause has retained the gist of Clause 35(a) in the Bill and that the various subsections of the new clause are very similar to those of Clause 34 in the Bill, although not in the same order.

As my noble friend Lord Jellicoe (I believe it was on an Amendment moved by the noble Lord, Lord Lindgren) quoted from paragraph 67 of the Proud-man Report, I hope he will stand by the words he quoted then, particularly the first three lines. I will not read them again but I am sure he is well aware of that paragraph, which deals with the issue of licences. In the Bill this recommendation is only partially embodied. Though a licence of right will be granted to a person who wishes to abstract water where he has abstracted water at any period during the five years ending with the second appointed day, the quantities for which the licences will be given will be at the discretion of the river authority. And here, no doubt, my noble friend will remember the point I mentioned on Second Reading: that these are valuable rights appertaining to land, and any curtailment of them should be subject to adequate compensation in cash or kind.

Here I should like to refresh my noble friend's memory with regard to the letter he sent me on the 30th November, and particularly with regard to one paragraph, because it does not mention at all this question of compensation in the case of curtailment of rights. He wrote: First you said that there should be compensation where a licence of right granted to an industrialist is revoked … In fact, compensation for revocation of a licence is paid under Clause 45, which provides for disputes being determined by the Lands Tribunal. The clause does not in terms give the licence holder a choice of compensation in cash or in kind, but I should have thought that a river authority were generally likely to prefer to offer a licence for an alternative source of supply instead of paying entirely monetary compensation. It is perhaps worth adding that under Clause 42 (5) a proposal to revoke a licence has to be referred to the Minister of Housing if the licence holder objects. The Minister can surely be relied upon to think very hard before agreeing to the revocation of a licence covering a source of water which is essential to an industrialist. But that statement does not cover my point with regard to curtailment. The reason why we feel it preferable to propose a new clause is that to amend the existing Clause 35 might be a little complicated.

Finally, I should like to ask my noble friend if he can give one assurance. He might say that this is a matter which I should more appropriately have raised under Clause 30, but as I am particularly interested in licences of right, rather than in licences generally, I hope that he will agree that this might be the appropriate moment to give an assurance that river authorities will not be able to discriminate in any way, when determining the quantity of water to be authorised under a licence of right, as to the purpose to which the water will be put. For I feel that if that were possible it could lead to a kind of retrospective planning permission for the development of industry in a particular area or locality. I beg to move.

Amendment moved— Leave out Clause 35 and insert the said new clause.—(Lord Merrivale.)

LORD FRASER OF LONSDALE

May I invite your Lordships to look briefly at the position that arises in this matter. The water under the soil now belongs to the industrialist. He has bought it for the purposes of his business, and his rights in the water are protected by Common Law. The Bill proposes to take away not only the water, which is to be given to the State, but also, naturally, the Common Law rights which protect it. The industrialist, therefore, is losing some private property. I make no complaint about that. I think that it is for the common good that this scarce commodity, water, should be nationalised and that it should be brought under a measure of control for the benefit of all. But where private property has been taken away—property that has been bought for industrial usage by far-seeing people, who have put up plants and whose business and whose employment of their employees depend upon this water, perhaps for processing, perhaps for cooling (though I might mention that, in the case of cooling, the water goes back into the stream or into the subsoil and is therefore not lost)—it seems to me and to my noble friends only just that two or three things should follow. First, the owner should get a licence of right. And that is conceded. Secondly, if there is enough water, he should have an entitlement to the amount of water which he was using before. Therefore, he should be able to prove what he was using before, what he owns, so to speak, and he should have a priority for that. As my noble friend Lord Merrivale pointed out, the Proudman Committee used these words Where possible there should be a priority to the full extent— meaning the full extent of the water— which the person had before. The noble Earl referred to that the last time we met. It seems to me that equity requires at least that the person whose water is taken away from him should have a priority, where it is possible, for the amount he is losing. That is the essential difference between the clause my noble friend has moved and the clause we are seeking to delete.

VISCOUNT COLVILLE OF CULROSS

Without wishing to go into the merits of the case made by noble friends Lord Merrivale and Lord Fraser of Lonsdale, I hope that, whatever happens to Clause 35, my noble friend Lord Jellicoe will see that it is properly written out rather than left in this extraordinary drafting which is at present in the Bill. It would not take an excessive amount of printers' ink to set out the proper requirements for non-statutory users, and if that were done it would be much easier to find out what is the law on the subject. I would make an appeal to my noble friend to set this out properly in full, so that we do not have to refer back and strike out some words and put in others between inverted commas.

EARL JELLICOE

I am glad to know that we have now notched our century of Amendments; unfortunately, they still seem to be going strong. Parenthetically, I would also say how much I appreciate the assiduity with which my two noble friends who have moved this Amendment—I think it is their first on the Order Paper—have attended our Committee stage, even though they have had to wait through 99 Amendments before we reached theirs.

The Amendment proposes, first, to make certain drafting changes to Clause 35, and secondly, and more importantly, to vary factors to which attention must be paid in settling the terms of a licence of right. If this were just a matter of drafting, I could straight away assure my noble friends that I should be glad to look at the suggestion in the context of the drafting changes which will in any event require to be made to this portion of Part IV of the Bill, consequential upon the reconsideration of Clause 34, which my noble friend Lord Hastings has undertaken. Therefore, I am inclined to agree that there are drafting Amendments which could improve Clause 35; and if, in looking at this again we can go at least some way to making it more comprehensive, I shall be happy to do so. Moreover, when we are looking at it, I will certainly bear in mind the point which my noble friend Lord Colville of Culross has made. It has not fallen on deaf ears. I myself have had extraordinary difficulty in understanding Clause 35 as drafted.

But, having said that, I must add that my noble friends' Amendment goes a good deal further than mere drafting, and I fear that I cannot ask your Lordships to endorse some of the real objects of this Amendment, as I see it, and, indeed, as it has been explained. My first objection affects quantity. The Amendment would impose a burden of proof of the quantity of previous abstractions. I am sure that there will be cases of non-statutory abstractions, despite the warning conveyed by the publication of the Bill and our discussion of it in Parliament, where no information or evidence worth the name about the quantity of water abstracted would be available to the river authority, when the question of a licence of right arises. On Amendment No. 59, which was moved by the noble Lord, Lord Lindgren, we dealt with the difficulty that in certain cases people just have not kept records. Therefore, to prove quantity will be virtually impossible. That is why we feel it necessary to have regard (and that is the wording in the Bill) to the quantity of water shown to have been taken. That the Bill would allow, but the Amendment would not.

My second objection is more fundamental and concerns purpose. The Bill states that the river authority may have regard to the purposes for which water is intended to be abstracted and the purposes for which water has been abstracted from the source of supply in question. The Amendment would exclude purpose entirely. This I find difficult to accept. First, where no definite proof can be obtained of the quantity abstracted, then consideration of the purpose for which water has been or was intended to be abstracted will be useful in helping to establish the right quantity which should be authorised in the licence. Furthermore, your Lordships will recall that there are some rivers which are sucked almost dry by excessive abstraction in a dry year. Here I must be quite frank and come straight on to the point which my noble friend Lord Merrivale put to the Committee. Where that is the case, let us quite frankly admit that the river authority may be faced at the outset with the problem of how best to apportion the available water. Abstractions made without statutory authorisation in purported reliance on Common Law or prescriptive rights may be for any of a wide variety of purposes. I do not depart from what I said in regard to paragraph 67 of the Proudman Committee's Report.

Of course it is the aim to give priority to existing abstractions, irrespective of purpose; but I think it would be wrong if we did not make provision in the Bill for the river authority to have regard to those purposes in settling the precise terms of an authorisation which it has been required to give as a licence of right. Where there is a real shortage of water for certain times of year, or in certain circumstances, if the river authority has not a right to determine purposes and if there is a need to establish some form of priority it would be quite impossible for the river authority to establish any equitable system of priorities whatsoever.

A third important point is that, in our view, it must be up to the river authority to seek to establish that the intention is to continue in future to abstract for the same purposes as the abstraction has been made in the past. Only to the extent that this is so is there a solid case for a licence of right.

Those are the principal reasons why I suggest that this Amendment must be resisted if we are to build a really satisfactory system for dealing with these licences of right. But having said that I would repeat that we shall be requiring to make some Amendment to this clause in any event at a later stage, and I can undertake to see between now and then whether there are any specific points made by my noble friends in our discussion this afternoon which should be included in those Amendments. I must repeat, however, that it would be wrong and disingenuous of me if I were to convey the impression that we shall be able to give substantive effect to the main purpose of the Amendment as I understand it.

LORD MERRIVALE

First of all, I should like to thank my noble friend for the obvious trouble he has taken in endeavouring to meet our point as far as he can. I appreciate that there are differences of principle involved here, and that is why I am grateful to him for having gone as far as he can at this stage. As I understand it, one point on which we differ is that in my noble friend's opinion the proof of the quantity over the years might in many cases be difficult to ascertain. I regret that he feels that purposes should be taken into consideration so much. However, I am grateful for what he has said, and, without committing myself to what might be done at a later stage, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

Clause 36 [General restriction on impounding works]:

3.17 p.m.

LORD LINDGREN moved, in subsection (2), to leave out "an alternative" and insert "a". The noble Lord said: I think it will be for the convenience of the Committee if we take with this Amendment Numbers 102, 110, 111, 112 and 113, because they all cover the same point and would come within the general definition of consequential Amendments if this Amendment were accepted. Clause 36 provides that nobody shall construct or alter an impounding works without a licence from the river authority. Clause 36 (2) exempts the construction or alteration of impounding works which are authorised "by virtue of an alternative statutory provision," and subsection (3) defines that alternative statutory provision to mean, broadly speaking, a statutory provision in force before the new scheme comes into operation. The Amendment proposes that the exemption from licensing may be extended to cover works carried out by virtue of a statutory provision after the new scheme comes into operation.

The principal class affected by this Amendment is the statutory water undertaker who carries out impounding works under statutory provisions. As the clause stands, the statutory water undertaker who has obtained powers to carry out impounding works before the new scheme will not have to obtain a licence from the river authority to carry out those works. It appears, however, that when the new scheme comes into force the statutory water undertaker will not only be obliged to obtain statutory authority for impounding works, but will also have to obtain a licence from the river authority—that is, to obtain two authorities from two different sets of people. This machinery seems typical. Does the water undertaker go to the river authority for the licence in the first place, and then to the Minister or to Parliament for statutory authority, or does the water undertaker go to Parliament or the Minister first and then to the river authority? In any event, what happens if one body gives the authority and the other denies it? The Amendment proposes to deal with the problem by providing that if the water undertaker has obtained statutory authority for carrying out the impounding works, then he shall not have to go to the river authority for a licence. I beg to move.

Amendment moved— Page 33, line 12, leave out ("an alternative") and insert ("a").—(Lord Lindgren.)

LORD HASTINGS

In a way, this is a continuation of a slightly different argument we had the last time we were in Committee on this Bill in regard to licences for abstraction. The effect of the Bill in this clause as drafted is to except from licensing all past impounding works which have been statutorily authorised and any which may be authorised statutorily up to the end of the initial period; but after that, future impounding works would have to be licensed. Most of the alternative statutory provisions will have been orders made by the Minister of Housing and Local Government under Sections 23 and 26 of the Water Act, 1945. Their exclusion from licensing is natural and justifiable in all the circumstances up to the end of the initial period. In the future, though, it is intended that impounding works, even those from statutory water undertakers, should be licensed. The main beneficiaries of the exclusion would be the statutory water undertakers if these Amendments were to be accepted, and it is really in that respect that they follow on the noble Lord's Amendments Nos. 70 and 77, which sought to exclude from licensing control existing abstractions by the statutory water undertakers, only in this case they appear to go further in seeking to exclude future works by water undertakings as well as existing ones.

I think the noble Lord has overlooked a few points here, because he has not perhaps taken into consideration the provisions of Clause 37 (3), whereby application can be made for a combined licence to impound and abstract water. He referred to the difficulty of going through two different authorities, one to the Minister for the impounding works and the other to the river authority for the abstraction licence. He was suggesting that if they got the impounding works, then they need not have a licence to abstract. I really replied to that argument on the previous Amendment No. 77, which the noble Lord moved last week, showing that it was impossible to excuse anybody—statutory water undertakers or anybody else—from going through the ordinary channels or from getting a licence to abstract water. Obviously, it is the licence to abstract water which must come first in order before impounding works are authorised.

Apart from the fact that a combined licence to impound and abstract water can be issued, I think the noble Lord is disregarding my previous argument, which was that a comprehensive and unified management of water resources is to be vested in the river authorities if our national water policy is going to be efficient. If impounding of water by statutory water undertakers or anybody else is not to be controlled by them, it would be extremely difficult for them to carry out their task properly. I do not see how we can allow statutory water undertakers to opt out of the licence system either for abstraction or for impounding works. Furthermore, where appropriate the Minister would no doubt require application to be referred to him under Clause 38, and would deal with the application from the very beginning. But in any case we feel that the statutory water undertakers cannot contract out of the new system. They really stand to benefit with all other abstracters from the comprehensive and positive management of their activities, and like all others must be brought within the system. The right of appeal against a decision of a river authority applies to applications for impounding works just as it does for applications for abstraction licences. There need be no fear that the interests of statutory water undertakers will not be properly considered.

As the noble Lord said, the next Amendment and four others, Nos. 110 to 113 inclusive, really go together with this Amendment, and, bearing in mind my reply, which was of considerably greater length and in greater detail than on the previous Amendments dealing with abstraction licences, and in view of the firm undertaking I gave that the statutory obligations in respect of domestic users will be recognised in the Bill, I hope he will feel that he can withdraw this Amendment.

LORD LINDGREN

I am most grateful to the noble Lord, Lord Hastings, for that very detailed reply. If I have put down an unnecessary Amendment, I apologise to him, but I think he will agree that this is quite a complicated Bill, and as the three clauses, Clauses 36, 37 and 38, all deal with the same point, I would agree that I have not quite appreciated that all dual applications for impounding and abstracting, where they go together, will come under Clause 37 (4). In view of his explanation, for which I am most grateful, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 36 agreed to.

Clauses 37 and 38 agreed to.

Clause 39 [Appeal against decision of river authority]:

3.28 p.m.

LORD CHORLEY moved, in subsection (1), after "applicant" to insert "or any other person". The noble Lord said: I think I can explain this Amendment very shortly. The clause to which we have now come deals with appeals. An applicant whose application for a licence is rejected, or who gets a licence subject to terms which he does not think are right, is given the right of appeal, very properly, by this clause. The later subsections deal with the procedure in respect of these matters. What the clause does not do is to provide a right of appeal to those opponents of the grant of the licence who, if the licence is granted, may well suffer a great deal of damage. There seems to be no good reason why some person who has objected to the grant of a licence should not equally be given the right of appeal.

The noble Earl knows that in the Amendments which I have been putting down to this Bill I have been speaking on behalf of the amenities organisations, who are naturally very interested in this question of being able to resist the grant of a licence in certain circumstances. It seems only right and proper that, if their applications are overruled by the authority, there should be a right of appeal. Of course, this concerns not only the amenities organisations. In some ways private interests are even more concerned to have a right of appeal in this type of case. Only a minute or two ago the noble Lords, Lord Merrivale and Lord Fraser of Lonsdale, argued the position of private landowners who may already have valuable vested interests in water and who may find those interests overborne by the grant of a licence to somebody who has just come in, despite opposition from people who have long-standing interests in these matters. It may well be that the authority has decided against them, very properly, after due consideration of the facts. But is it right that there should be no possibility of their appealing in a case of this kind where landowners may be losing valuable interests and where quite possibly the authority may have overlooked some point to which the Minister, if an appeal to him were possible, would attach very considerable importance? It is quite possible, I suggest, that he would set aside the licence, or at any rate attach to it conditions which would go some distance towards meeting the very just case of the man whose vested rights had been overborne.

Therefore, from the point of view both of the private interests involved and also of the societies who carry on this very difficult and often frustrating task of trying to defend the interests of the public as a whole in the natural beauties and the amenities of the countryside generally, it would appear very reasonable and proper that a right of appeal should be extended to those who are resisting the grant of a licence just as much as to an applicant whose licence has been refused. I hope the noble Earl will, at any rate, be able to give me this Amendment, which is the last I have down. I beg to move.

Amendment moved— Page 35, line 29. after ("applicant") insert ("or any other person").—(Lord Chorley.)

EARL JELLICOE

The noble Lord has just moved an important Amendment. Its effect would be, as he explained, that any person could appeal against the river authority's decision on a licence application. As Clause 39 stands at present, the right of appeal is confined to the applicant for the licence, as he made clear. First of all, I should like to make it quite clear to your Lordships that the Bill acknowledges, and quite rightly so, that third parties have a legitimate interest in licence applications. Clause 28 provides that every application—apart from an application for a licence of right—must be advertised. This ensures that anyone who would be affected if a licence is granted can find out about the application. That person is allowed 28 days in which to make representations to the river authority, and the authority are required to have regard to his representations when they come to deal with the application—and that, again, as the noble Lord pointed out, is in Clause 29 of the Bill.

If the licence is refused—and any such refusal might be a direct or indirect consequence of the third party's representations—and the applicant appeals, the third party is again safeguarded. If he made representations to the river authority in the first instance he is given an opportunity of making a further representation to the Minister at the appeal stage, and the Minister is required to take the third party's representations into account along with those made by the appellant. If the Minister holds an inquiry, third parties will be able to attend and to speak. If, however, despite the third party's initial representations the river authority decided to grant a licence, that, of course, under the Bill as drafted, and as the noble Lord, Lord Chorley again made clear, would be the end of the matter.

The question how far third parties should be entitled to carry their objections was, I think, among the most difficult which arose in the course of preparing and drafting this Bill; and the question of how best to safeguard third party rights is not an easy matter at all. The basic problem here is how best to hold a reasonable balance between the legitimate interests of third parties, which are recognised, as I have just sought to explain, and the equally legitimate interests of abstracters or would-be abstracters. One thing, however, to which we feel the would-be abstracter is entitled is to receive a firm decision on his licence application within a reasonable time. As it is, the applicant may well have to wait two or three months before getting his decision under the procedure already envisaged. What would be the result if a third party were enabled to appeal against a grant of licence, as Lord Chorley's Amendment would provide? The licence holder could not then safely act on his licence, or incur any expenditure on plant or buildings on the strength of it, until either the time for making an appeal had passed without an appeal being made, or an appeal had been made and decided.

All in all, it seems to us that where no third party appealed, the applicant would often have to wait four months from the date of his application before his licence was firm. If we adopt the procedure recommended by the noble Lord, Lord Chorley, and there is an appeal, the period might well be six, seven, or up to eight months, and, in our view, it is not reasonable to expect would-be abstracters to wait as long as that. They may be industrialists needing more water urgently for increased production for new processes; they may be farmers needing more water urgently for irrigation; they may be water undertakers faced with a mounting and urgent demand from domestic consumers. I suggest that we must really weigh all this very carefully before opting for a procedure which would make procrastination the hallmark of the whole licensing system.

We must remember that an industrialist may need to abstract more water just as badly and urgently as he may need to draw more power from the grid, and the same applies to many farmers. We must bear in mind that under the present law many abstracters are free to take water without asking for anyone's consent, and I would suggest to your Lordships that we should be very careful not to make the new licensing system too onerous.

I am not without sympathy for the third-party case, but I should be more inclined to concede the noble Lord's case—and, I must confess, I am not inclined to, even though I have given him something on his previous amenity Amendment—if there were not various other safeguards for the third-party interests likely to be affected. Again, I do not want to go over ground already gone over, but I must recall the basic safeguard to your Lordships, which is the minimum acceptable flow; and there is a pretty thorough procedure by which that minimum acceptable flow is determined, giving plenty of opportunity for third parties to represent how they will be affected by it.

I know the deep concern of the noble Lord and other noble Lords that we should do all we can to safeguard amenity in this Bill. I have already suggested that there are in fact many safeguards other than that of the right of third parties to represent or to appeal, but apart from these safeguards it is, I think, very hard to visualise a project for taking water which would be really significant for amenity but which did not also involve at the same time buildings or works requiring planning permission or, in the case of water undertakers, an order of the Minister under the Water Act of 1945. In any such case, the application would still be subject to the whole planning machinery.

I must again apologise for having taken up quite a bit of your Lordships' time on an Amendment, but it touches on very important issues. Could I just summarise our arguments as follows? We claim that the Bill as it stands does preserve about as good a balance as one can reasonably get between the interests affected by abstraction and the interests of abstracters. The line taken in the Bill is, moreover, the same as that of the planning Acts; the applicant for planning permission can appeal, but not a third party. Moreover, as I have endeavoured to show, there are many other ways in which third-party interests, including, of course, amenity interests, are safeguarded. In all the circumstances, I am afraid that I cannot advise your Lordships to accept this Amendment.

LORD CHORLEY

I am grateful to the noble Earl for the care with which he has discussed this point. I must say I have seldom heard an argument which was less convincing. I suppose you could always say there shall not be an appeal because it leads to delay. There are obviously numerous cases where delays caused by appeals are just as unfortunate to the respondent as they are in this case, perhaps a good deal more serious, and yet the valuable interests involved have always been held to justify a right of appeal. The noble Earl really gave his case away, or part of it, by pointing out that the rights of third parties were very important indeed and that every effort had been made to give them an opportunity of putting their case before the authority. The logical next step from that is that if they are defeated there they should have some right of appeal, as the applicant has if he is defeated in the first instance.

It is quite true that there are general provisions in other parts of the Bill which no doubt will be operated: that is part of the general background of the whole Bill. But when we are dealing with an individual case, we are not really concerned with the general policies involved; we are concerned with what happened in respect of some particular matter, just as in litigation before a court when it is a question of appeal we are concerned not with the general law under which the judge decided the case but whether the decision he made in that case was a proper one or not, and, if not a proper one, whether it ought not to be repealed. Although I always listen with very great attention, and I am surprised often at the cogency with which the noble Earl succeeds in arguing the rather bad case he sometimes has, I must say that on this occasion he has not gone very far towards convincing me at all. I should like to look at what he said again, however, and possibly pursue this matter at the next stage. In the circumstances I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE LORD PRESIDENT OF THE COUNCIL AND MINISTER FOR SCIENCE (VISCOUNT HAILSHAM)

I beg to move that the House do now resume in order to give my noble friend Lord Carrington an opportunity of making the statement of which the House has been given notice.

Moved, That the House do now resume.—(Viscount Hailsham.)

On Question, Motion agreed to: House resumed accordingly.

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