HL Deb 30 July 1963 vol 252 cc1051-9

Clause 32, page 29, line 21, leave out subsections (1) to (6) and insert—

("(1) Where the holder of a licence under this Act to abstract water (in this section referred to as the original holder') is the occupier of the whole of the land specified in the licence as the land on which water abstracted in pursuance of the licence is to be used (in this section referred to as 'the relevant land'), and either, being an individual, he dies, or by reason of any other act or event the original holder, whether an individual or not, ceases to be the occupier of the whole of the relevant land and does not continue to be the occupier of any part of that land, and (either immediately after his death or the occurrence of that other act or event or subsequently) another person (in this section referred to as 'the successor') becomes the occupier of the whole of the relevant land,—

  1. (a) the original holder (except where, being an individual, he has died) shall cease to be the holder of the licence, and
  2. (b) the successor shall become the holder of the licence.

(2) Where the preceding subsection applies, the successor shall cease to be the holder of the licence at the end of the period of one month beginning with the date on which he became the occupier of the relevant land unless before the end of that period he has given to the river authority notice of the change in the occupation of the relevant land.

(3) Provision may be made by regulations under this Act for conferring on a person who, after the death of the original holder or the occurrence of any other act or event whereby the original holder ceases to be the occupier of the relevant land or of part of that land, becomes the occupier of part of the relevant land, a right in such circumstances as may be specified in the regulations—

  1. (a) to become the holder of the licence, subject to provisions corresponding to the last preceding subsection, or
  2. (b) to apply for, and to the grant of, a new licence containing provisions (as to quantities of water and otherwise) determined in accordance with the regulations by reference to the provisions of the original licence,
or for conferring on the original holder, where he continues to be the occupier of part of the relevant land but ceases to be the occupier of another part of that land, a right, in such circumstances as may be specified in the regulations, to apply for, and to the grant of, a new licence as mentioned in paragraph (b) of this subsection.

(4) Any regulations made in pursuance of the last preceding subsection may provide that, in relation to an application for a licence made by virtue of the regulations, or to a person entitled to make such an application, the provisions of this Part of this Act shall have effect subject to such exceptions and modifications as may be specified in the regulations.")


My Lords, we are taking this Amendment separately because the noble Lord, Lord Douglas of Barloch, has put down an Amendment to it. I will introduce it only very briefly and then let him say what he has to say. Clause 32 deals with succession of licences, which is a highly complicated question, and the Government made no secret at any time that they were not entirely happy about the clause, either when it was introduced to this House or when it left this House. The Commons Amendments deal with the weaknesses in the clause as it was, and, subject to one point which is in fact precisely the point which the noble Lord wishes to bring up, it gave rise to no comment in the other place when these Amendments were introduced at Report stage. I think that, in view of the technicality of this I need not go into it any further, because the Amendment to it is only one particular small point in a particular clause. Perhaps the noble Lord would like to move his Amendment, and I will then reply to that. I beg to move.

Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Hastings.)

3.19 p.m.

LORD DOUGLAS OF BARLOCH moved, as an Amendment to the Commons Amendment, in the proposed new subsection (2) to leave out "one month" and insert "six months". The noble Lord said: My Lords, I beg to move my Amendment to the Commons Amendment, No. 71. As the noble Lord, Lord Hastings, has said, Clause 32 deals with succession, that is to say, virtually a transfer of the right of ownership in a licence, and it has given lawyers at any rate a great deal of concern. What now appears before us is virtually a clause which has been completely redrafted in another place, but it is still not intelligible to many of us. Not only myself, but the Council of the Law Society has given it earnest consideration. They have made representations to the Minister about it. Unfortunately, the consultations which they desired have not taken place and we now have to deal with it at a very late stage in the progress of the Bill.

This clause deals with two categories of events. Subsections (3) and (4) deal with the case where the land benefited by the licence ceases to be in one occupation. This is a matter which is to be dealt with by means of regulations. All I need say about that is that I hope that, when the regulations are made, they will not be of the same complexity and obscurity as subsections (1) and (2). It is the first of these two subsections which raises the difficulty. They deal with the case in which there is a change of occupancy of the whole of the land benefited by the licence. Such changes can take place because there is either a sale or letting of the land, and where this is the occasion I think that the provisions are intelligible. Even so, I consider, and so do the Law Society, that the period of one month for giving notice is too short. That is the gist of my Amendment.

However, I want to say something about other cases in which a change of occupancy of the whole of the land benefited by the licence may take place: that is, where the holder of the licence dies. Leaving out the inessential words of subsection (1), the provision in this case is: where the holder of a licence … is the occupier of the whole of the land … and … he dies … and (either immediately after his death or … subsequently) another person … referred to as 'the successor' becomes the occupier …

  1. "(a) the original holder (except where, … he has died) shall cease to be the holder of the licence, and
  2. "(b) the successor shall become the holder of the licence."
As I said before, notice has to be given within one month. These provisions, paragraphs (a) and (b), appear to be totally self-contradictory. Paragraph (a) appears to me to mean that where a man dies he still continues to be the holder of the licence. It is a little difficult to understand what that is intended to mean. Perhaps it means that his executors or the administrators of his estate will be the holders of the licence. This seems to be a conceivable interpretation because, although Clause 27 provides that application for a licence shall be made only by an occupier, it is nowhere stated in express terms that, when the licence has been granted, only the occupier may own it. However, if paragraph (a) means that the owner's personal representatives continue to be the holder of the licence, then paragraph (b) is meaningless, because do not think it is possible for two different persons to be the holder of a licence at one and the same time.

This matter is obviously fraught with a great deal of difficulty in another way. The licences with which we are concerned here will in many cases relate to the use of water for agricultural purposes, such as spray irrigation. In that case there must presumably be someone in occupation of the land for the purpose of carrying on the farming operations. The business of agriculture has to be carried on from day to day. If a bailiff is employed to manage the farm on behalf of the deceased's estate, will he be the occupier; or will the occupier be the person who employs him? Suppose that the deceased's widow continues in the house and manages the farm, is she the occupier? Suppose that he dies intestate. My recollection is that, in that event, the legal ownership of the estate is vested temporarily in the President of the Probate, Divorce and Admiralty Division of the High Court. Would he be the occupier of the land in those circumstances, or would he have the right of ownership in the licence? If the owner dies testate and leaves a will, are his executors the occupiers?

I would here point out that in the normal course of events it is comparatively rare for probate of a will or letters of administration to be granted out of the court within one month of the death. It is possible; but, for reasons which are necessary and are well understood, it is far from being the rule. Another difficulty that arises is this. When probate is granted, the executor's title relates back to the date of the death. Is he presumed to have been in occupation of the property from that date or not? This whole matter bristles with great difficulties. It is just possible that, so far as it relates to succession on death, the provision is completely meaningless. But, even if it is not, I am at any rate clear that a period of one month is quite insufficient to unravel the complexities involved in this matter. Therefore I beg to move that six months be substituted for one month.

Amendment moved— In the proposed new subsection (2), leave out ("one month") and insert ("six months").—(Lord Douglas of Barloch.)

3.28 p.m.


My Lords, I should like to support my noble friend in this Amendment, and also to associate myself with what he has said about the obscurity and ambiguity of this clause. It is a pity that it comes before us so late. I understand that this matter was before another place on July 18, some days ago, and when the position as to its obscurity was put, in something like the same form, but perhaps not with quite the same clarity as my noble friend has put it, there was a promise that it would be looked at. I do not know whether the noble Lord, Lord Hastings, now has the result of looking at it. The Commons Amendment comes to us so late that we are faced with the alternatives of allowing this obscurity to continue or accepting the small Amendment of my noble friend, substituting six months for one month, and thereby possibly running the risk of losing the Bill. Nobody wants to lose the Bill, and so we may have to put up with this difficult provision which may in the future give rise to a great deal of litigation and difficulties for people who succeed.

The moral is that if the Government give an undertaking that the matter will be looked at before the Bill comes back to this House, surely they are under an obligation to ensure that that undertaking can be properly complied with. In fact, they have given an undertaking which is useless, because it was never intended that we should be faced either with an amendment of the Bill which would result in losing the Bill, or with their not looking at it properly. As I have done on so many occasions in the past, I can only draw the moral that the Government must handle their business much more efficiently in future, and if they give undertakings they must be satisfied that they are undertakings which can be complied with. I hope that, as some kind of compensation for that, the noble Lord will see his way to accepting this specific Amendment. My noble friend has pointed to the great difficulties that will arise if the time is limited to one month. The successor may be the person entitled to take over the licence. He may be abroad: he may not be immediately available. There may be all sorts of difficulties in the way of his becoming aware of his rights, and one month is a very short period. I should have thought that no harm would result if the period were six months, as my noble friend has submitted in his Amendment.


My Lords, I should like to support the Motion. One month is not going to be enough and probably will give difficulties in future, but the circumstances under which we labour at the end of a Session obviously preclude the Government from putting in an Amendment. I support the idea of six months, but lower down in the clause certain regulations are mentioned and I have it in command, sc to speak, from the River Boards Association to say that they would be very grateful if they could be allowed to see, and to discuss, regulations as they are being made; that is to say, before they are actually published.


My Lords, I think I must remind noble Lords that this Amendment is a redrafting of Clause 32 which we had before us during the Committee and Report stages, and therefore, quite clearly, because that previous clause was not deemed to be satisfactory, the new Amendment is supposed to clarify the situation and to be better than the original clause. I fully admit that there were great technical and legal difficulties about drafting it, and, in view of these difficulties, it was considered that it was better to confine the clause to two major things: first, to the case where a licence holder ceases to occupy the whole of the specified land and is succeeded in occupation of the whole of that land by another person who is to become the licence holder; and, for the rest, to take power for the Minister to make regulations providing for succession to licences where there is a change in the number of occupants of the specified land, as it was found virtually impossible to incorporate all the possibilities that might come about into a clause of this nature.

The next thing I wish to draw your Lordships' attention to is the fact that subsection (2), which is the subject of the noble Lord's Amendment, merely reproduces the existing, original subsection (2)(c) which was in Clause 32 when it was before this House on a previous occasion. The period of one month was already part of that clause in similar circumstances. It was not commented on at all at any stage while the Bill was going through your Lordships' House; and it was not commented on until this new clause (as it is in effect) was produced at the Report stage in another place—when, because it was a new clause, it drew attention to itself and this particular point about the one-month period was picked up, which it had not been previously. Therefore, I think that it is reasonable for me to point out that curious aspect of the affair.

These two subsections, (1) and (2), are of a restricted application. They deal with the case where there a change in occupation of land on which water abstracted pursuant to a licence is authorised to be used. In effect, of course, it will apply to licences to take water from an inland water for spray irrigation, as the noble Lord said; also to licences authorising abstraction of underground water for agricultural purposes, and to very little else. It will not apply to statutory water undertakers, or to industrialists, companies, and so on. Their licences continue irrespective of changes in their personnel. The subsection is limited in the sort of people to whom it will apply.

Coming to the question of the necessity for giving one month's notice, this is necessary so that a river authority is kept informed of the identity of the licence holder with whom it must deal in enforcing the various provisions of the Bill relating to abstractions; the limits on the quantity authorised to be taken, and the payment of the licence fees and charges; service of notice under Clause 44(2), which refers to restrictions on the quantities authorised to be taken for spray irrigation. Six months' notice in this latter case dealing with spray irrigation would obviously be far too long, and the river authority must be able to deal with the licence holder on whom any notice under that clause must be served. Six months could mean the whole of an abstraction season for spray irrigation. Therefore, that river authority in regard to the minimum acceptable flow for which it is responsible might find itself in very serious trouble.

To turn to one or two side aspects of the noble Lord's Amendment which he has brought into the discussion, I will take the case where an occupier of the land may die. This subsection is not concerned with the legal title to the relevant land, but with de facto occupation, and that is all. If after the former occupier's death the land is occupied at all, it will be clear who is occupying it; and we think that it is not asking too much that he or she should make himself or herself known to the river authority in one month. The noble Lord cited the example of the farmer who died and whose wife was occupying the relevant land and was therefore, in effect and in fact, the successor for the purposes of the new subsection (1). She must give notice to the river authority within one month.

But if the farmer and his wife vacate the land, say by giving up the tenancy, or if for any other reason the land remains unoccupied for three months after which some person comes on to it, then that person will be the occupier and must give notice within one month from the date of occupation—and the subsection says this quite clearly. We do not think that is very difficult. All he has to do is to notify the river authority of the change. It is of course necessary therefore that he should be aware of the obligation to give notice, and this can be done and secured by administrative means. The river authorities will be asked to mark the licences in large letters that on any death or change of occupancy the application for a transfer is to be made within the month, and there are various forms of publicity and consultation. I do not think it is going to be very likely that any occupier of land with water rights will not be aware of the law in this respect.

When it comes to making regulations, my right honourable friend has, I think, given an undertaking—and, if he has not, I am authorised to do so now—that there will be full consultation with the Law Society. I now see that he gave this undertaking in another place, so that there will be consultation in respect of regulations with the Law Society. I will bear in mind what my noble friend Lord Albemarle has said about consultations with the River Boards Association and draw it to the attention of my right honourable friend.

In reply to the noble Lord, Lord Silkin, my right honourable friend has considered this matter again, and he is quite satisfied in respect of this time factor of one month that it is perfectly feasible and is necessary from the river authorities' point of view. As for the wider legal aspects, I have said that this is an improvement on the previous clause, and that in respect of regulations there will be consultation. Therefore, I hope that the noble Lord will not press this Amendment, quite apart, of course, from the difficulty we find ourselves in at this very late stage.