HL Deb 28 February 1963 vol 247 cc225-31

5.5 p.m.

LORD FARINGDON rose to move, That it be an Instruction to the Committee to which the Bill has been committed that they should examine Clause 4 of the Bill to see whether it increases the liability to pay compensation or in any other way acts to the detriment of the planning authority concerned in the exercise of their functions particularly with regard to the preservation of open spaces. The noble Lord said: My Lords, it is with some trepidation that I rise to move the Instruction standing in my name. The noble Lord, Lord Silkin, has, I am glad to see, gone out of the Chamber, since he has said that only in the most exceptional circumstances should an Instruction be moved. Well, my Lords, this is a somewhat exceptional Instruction, partly, because it does not aim to do any of the things which Lord Ogmore's Instruction tried to do. It does not aim in any way at influencing the Unopposed Bill Committee to which it will go. Its object is simply to obtain an authoritative ruling on a problem which has been troubling me and some other Members of this House: that is to say, the question of the payment which would need to be made by a local planning authority who may wish, after the passing of a Bill of this type, to zone a disused burial ground as an open space. At the present time, as your Lordships are aware, half of these grounds in London are open spaces, accessible to the public, although the public for the most part has no property in them.

My Lords, may I say here most emphatically that I do not wish in any way to make any reflection on the Church's attitude in this matter. On the contrary, the Church has throughout—and in particular the Church of England, because they are the most affected, but this applies to other denominations, if not all—been most generous. In fact, if it were not for this, very few of these churchyards would be available to the public. And their importance to the public is very much more than their small size would lead one to suppose, since they exist in extremely built-up and crowded areas.

My object, as I have said, is to get from the Committee a ruling on the exact effect of these Bills. It has been put to me that the saving clause would make it possible for the planning authority to zone a disused burial ground in relation to which an Act of Parliament of the type we are discussing this afternoon had been passed; and that it would be possible for them, without any additional expense, to acquire the land. I am unable to accept that conclusion; I do not think it is so.

The position is extremely doubtful, and I will give one small example. The two principal Acts of Parliament—and there are a number of them, the whole subject being rather complicated—controlling the acquisition and management of disused burial grounds are the Open Spaces Act, 1906, and the Town Planning Act, 1947. Under the former it is possible, without removing the human remains from the burial ground, to use it as a garden or as an amenity open space—though, of course, no building can take place. Under the Town Planning Act it would seem that any use of a disused burial ground (except as a burial ground) is impossible without the removal of human remains.

Your Lordships will appreciate how important this is when I say that it has been calculated that the removal of human remains, taking an average of 1,500 bodies to the acre, works out at about £50,000 an acre. So very substantial sums of money are involved, and I hope your Lordships will consider this a sufficiently exceptional case in which to send this Instruction forward to the Committee in order that we may have from them a really authoritative ruling. My Lords, I beg to move.

Moved, That it be an Instruction to the Committee to which the Bill has been committed that they should examine Clause 4 of the Bill to see whether it increases the liability to pay compensation or in any other way acts to the detriment of the planning authority concerned in the exercise of their functions particularly with regard to the preservation of open spaces.—(Lord Faringdon.)

5.10 p.m.


My Lords, I take it that with the noble Lord's agreement, we might debate both of these Bills at the same time.




These two Bills are, in fact, almost, if not quite, identical in wording. They are unopposed—that is, no Petition has been set down by anyone, and it is now too late for anyone to do so. The position is like that on the Bill we have been discussing, in that these Bills have both already had a Second Reading in this House. They are no doubt considered necessary by the Promoters on account of the existence on the Statute Book of the Disused Burial Grounds Act, 1884. The effect of that Act, put quite shortly, is that a disused burial ground cannot be built on without the authority of Parliament. Therefore, anyone seeking to build on a disused burial ground would, normally, at least, have to go to Parliament again and get another Act, in order to free his land from the disability (using that word in a technical and perhaps legal way) of its being a disused burial ground, in spite of the fact that it might have been disused for a very long time.

In these two cases, my Lords, the churches which are mentioned in the Titles of the Bills were both burnt in the Great Fire of 1666. One of them was never built again; the other was rebuilt but was demolished some years ago, before the last war. So that both churchyards are still disused burial grounds suffering under the disability that I have mentioned. These two Bills seek to remove that disability and, if your Lordships will refer to Clause 4 of the Bills, you will there see the words which do that. Perhaps I may quote them: Notwithstanding anything contained in the Disused Burial Grounds Act, 1884…it shall he lawful…to use, deal with or dispose of the churchyard or any part thereof for any purposes in like manner"— and these are the important words— as if no part thereof had ever been used or set apart for the purpose of burial of human remains. The effect of these words is that, if these Bills are passed, we shall have these two churchyards—which, incidentally, may be found on the west side of Lime Street, in the City of London—once again, after such a long period, restored to their former position of being simply pieces of land, unfettered by this disability which I have described. The Bills remove the disability, but they do no more. They can merely put the land back into its former position.

I should like to emphasise that these Bills do not authorise any building. Not long ago, we had a Churchyard Bill which did something more, and did authorise a building but these two Bills do not. The other point that I should like to make very plain, my Lords, is that, if these Bills are passed, planning permission will still be required for any development which may be proposed upon the land. As I say, the land is merely placed in exactly the same position as if there had never been any burials in it.

My Lords, I come now to the Instruction proposed and moved by the noble Lord, Lord Faringdon. The Instruction is, in my judgment, in an entirely unobjectionable form. It is not a mandatory instruction. It leaves discretion with the Committee who may be dealing with it. It instructs the Committee merely to make a Report to your Lordships on the exact matter which the noble Lord is worried about. He said that it was a matter in which the legal position was extremely doubtful. That seems to me to be a good reason for desiring the Committee to look at this point particularly. Since these are not opposed Bills it seems to me perfectly unobjectionable, as I say, that in this case the Committee should be instructed particularly to look at one clause of the Bill and to report upon it. I see no objection to this Motion being passed, and if there is any further detail on which I can help the House I shall be very pleased to do so.

5.17 p.m.


My Lords, I intend to make only a very brief contribution to this debate, but I think it may be of some interest to know what is the feeling, in the case of these two Churchyard Bills, of my right honourable friend and of the Ministry which I represent. The noble Lord who put down these Motions raised the question of compensation in respect of a change of use affecting closed churchyards only a year ago during the Second Reading of Bills dealing with churchyards at Bolton and Nottingham. Very considerable interest was aroused on that occasion and a quite lenthy debate ensued, which I am quite sure was very much to the benefit of your Lordships' House, and, indeed, of the country as a whole; for the matters dealt with in that debate were so obscure as to need clarification and they were also of real importance.

I do not think I need go into the intricacies of planning permission again in any detail, for this was covered very thoroughly by my predecessor, the noble Earl, Lord Jellicoe, during that other debate. I think I ought to tell your Lordships that our understanding of the situation in the case of the two Bills now under consideration is that they were drafted with the intention that they should leave unfettered the power of the City of London to grant or refuse planning permission for development of the sites as they think fit. The advice given to my right honourable friend is that they do, in fact, achieve that object.

I am ready to agree, however, with the noble Lord, Lord Faringdon, that the problem of compensation could, after the passing of these two Churchyard Bills in their present form, create difficulties for the local planning authority should they be so minded as to refuse permission for development. In that case, although the owners of the land would not be entitled to any compensation for loss of development value which was assessed as "nil" under Part VI of the Town and Country Planning Act, 1947, they might in certain circumstances, require the authority—that is to say, the City of London exercising delegated powers on behalf of the L.C.C.—to buy the land from them at current market value. That value would, of course, take into account the fact that the existing restrictions upon the land has been removed by the passing of these Bills, as was so clearly pointed out by my noble friend the Lord Chairman. This is in any case a matter into which the Committee considering the Bills would be entitled to inquire, and I think it is worth noting that the City of London could have submitted a Petition against the removal of the existing restrictions if they had wished to do so, but they have not done so.

My Lords, the House can rest assured that my right honourable friend will be making a report upon these Bills to the Committee and will give them every assistance in their consideration of this matter. I have no doubt that the Committee will have no difficulty in discovering the intentions lying behind these Bills or the results likely to flow from them.

The noble Lord, Lord Faringdon, has raised an interesting and intricate point. He has drawn the attention of your Lordships—and, as a result, of the Select Committee also—to the existence of the special problems of compensation which might be payable under the Bills in certain circumstances, even though these circumstances are not likely to arise in this case. He is particularly interested in open spaces—and that is, indeed, a matter of general importance and general interest in the future, when other Churchyard Bills may come up for consideration, although, as I said, in respect of these particular Bills the issue may not be so relevant. In the circumstances, I do not know whether the noble Lord will feel there is any useful purpose in pressing his Motions. But in this instance, if he were to do so I should not feel obliged to advise your Lordships to oppose them.

5.21 p.m.


My Lords, I thank the noble Lord for his gracious reply. Actually, the effect that I want is just the report which he has mentioned; and therefore, with the permission of the House, I would choose to press my Motion. May I say, in passing, that I did not deal in any detail with the two Bills, for this very good reason: it was not really either of the Bills in itself with which I was directly concerned; it was the point of principle which seemed to me to be important and of interest? Therefore, with the leave of the House, I will press my Motion.

On Question, Motion agreed to, and ordered accordingly.