HL Deb 15 May 1969 vol 302 cc219-50

3.52 p.m.

THE LORD CHANCELLOR

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(The Lord Chancellor.)

On Question, Motion agreed to, and Report received accordingly.

THE LORD CHANCELLOR moved Amendment No. 1:

After Clause 6, insert the following new clause:

Business carried on by company

controlled by landlord

". At the end of section 30 of the Act of 1954 there shall be added the following subsection:—

(3) Where the landlord has a controlling interest in a company any business to be carried on by the company shall be treated for the purposes of subsection (1)(g) of this section as a business to be carried on by him.

For the purposes of this subsection, a person has a controlling interest in a company if and only if either—

  1. (a) he is a member of it and able, without the consent of any other person, to appoint or remove the holders of at least a majority of the directorships, or
  2. (b) he holds more than one-half of its equity share capital, there being disregarded any shares held by him in a fiduciary capacity or as nominee for another person;
and in this subsection 'company' and 'share' have the meanings assigned to them by section 455(1) of the Companies Act 1948 and equity share capital' the meaning assigned to it by section 154(5) of that Act."

The noble and learned Lord said: My Lords, I beg to move Amendment No. 1. This Amendment enables a landlord to oppose a request for the grant of a new tenancy of premises on the ground that a company in which he has a controlling interest intends to occupy the premises for the purposes of its business. It is intended to cure the defect in the operation of Section 30(1)(g) of the Landlord and Tenant Act 1954, mentioned in paragraph 5(i) of the Law Commission's Report on the Act, whereby a landlord can oppose a tenant's application for a new tenancy on the ground that he intends to occupy the holding for the purpose of his own business but not for a business to be carried on by a company which he controls. There is no justification for distinguishing in this connection between a business carried on by the landlord in person and one carried on by a company which he controls. The distinction can in any event be circumvented in many cases. The landlord can resist the new tenancy on the ground that he intends to occupy the holding for his business, and subsequently transfer his interest to a company. The Amendment accordingly provides that in Section 30(1)(g) a business to be carried on by the landlord is to include a business to be carried on by a company in which he has a controlling interest. A controlling interest is defined in the second paragraph.

VISCOUNT COLVILLE OF CULROSS

My Lords, I would simply say that I welcome this Amendment as being another piece of useful clearing up. The noble and learned Lord has explained its purpose; it seems very sensible, and I hope that the House will accept it.

On Question, Amendment agreed to.

Clause 7 [Grant of new tenancy in some cases where section 30(1)(f) applies.]:

THE LORD CHANCELLOR moved Amendment No. 3: Page 4, line 44, after ("holding") insert ("and without interfering to a substantial extent or for a substantial time with the use of the holding for the purposes of the business carried on by the tenant")

The noble and learned Lord said: My Lords, I beg to move Amendment No. 3. This Amendment is designed to prevent the possibility, inherent in Clause 7 in its present form, that the court might grant a new tenancy to a tenant who is willing to give the landlord access and facilities for a complete demolition and reconstruction of the premises.

The clause provides that the landlord shall not be able to resist a claim to a new lease on the ground that he needs possession for demolition or reconstruction of the premises, where the tenant is willing to give him access and facilities for carrying out his work. But as the tenant will be retaining notional possession in any case where he is willing to give such access and facilities, no matter how substantial the proposed redevelopment may be, it could be argued that in any such case the landlord does not need possession and accordingly is not entitled to reject the tenant's claim to a new lease. This criticism of the clause, which was advanced by the noble Viscount, Lord Colville of Culross, on Second Reading and in Committee, is met by the Amendment. The Amendment ensures that even where the tenant agrees to provide access and facilities for the landlord's works he will become entitled to a new lease only if the execution of the works will not substantially interfere—either in point of space or in point of time—with the use of the holding for the purpose of the tenant's business.

VISCOUNT COLVILLE OF CULROSS

My Lords, I am grateful to the Government for meeting this point. It was not only I who was worried about the scope of the clause as originally drawn: others who have much more experience than I of the operation of Part II of the 1954 Act thought it possible that this condition went too far as it stood. It is a matter of balance and it seems, from the noble and learned Lord's Amendment, that this balance is now restored. Previously I think it went too far the other way. In my view, the matter is now remedied and again, with many thanks to the noble and learned Lord for meeting this point, I hope the House will accept the Amendment.

On Question, Amendment agreed to.

Clause 9 [Saving for tenant temporarily out of occupation]:

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 4:

Leave out Clause 9.

The noble Viscount said: My Lords, Clause 9 was widely discussed at the Committee stage of the Bill, and I also mentioned it on Second Reading. I think it would be tedious and unnecessary to go through the arguments which I put forward previously to suggest that, although the provisions in Clause 9 mere no doubt extremely sensible, in the way they have been expressed the clause will add nothing to the clarity of the situation as it exists. I drew attention to the way in which Mr. Justice Cross interpreted the word "occupation" in the second Caplan case when it came before him.

The noble and learned Lord the Lord Chancellor, with his usual courtesy, said that he would consider this argument again. I have considered it again also and I still think that Clause 9 adds nothing to the clarity which we seek. I do not think that it carries out the objective which the Law Commission suggested should be achieved in this part of the new legislation, in that it does not seem to have any effect upon the objective way in which occupation is looked at. That is already built into the law, as Mr. Justice Cross has described, and this clause does nothing whatever to change that. The noble and learned Lord agreed with me that there was only a small number of cases on which this would impinge and I would suggest that this is not a worthwhile clause in the Bill and that it ought not to occupy the Statute Book. The courts are capable of dealing with this and have already shown that they can do so fairly. Therefore, I would suggest that Parliament should leave the law as it is and leave out Clause 9. I beg to move.

THE LORD CHANCELLOR

My Lords, the Government would advise the House to accept this Amendment. I need not, I think, recapitulate the argument put forward by the noble Viscount. The Law Commission have indicated that they do not attach a great deal of importance to this clause. The Government have considered the argument put forward on Committee stage by the noble Viscount, and they accept it.

On Question, Amendment agreed to.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 5:

After Clause 9 insert the following new clause:

Group of Companies.

".For subsection (3) of section 42 of the Act of 1954 (Group of Companies) there shall be substituted the following subsection:—

'(3) Where the landlord's interest is held by a member of a group

  1. (a) the reference in paragraph (g) of subsection (1) of section 30 of this Act to intended occupation by the landlord for the purposes of a business to be carried on by him shall be construed as including intended occupation by any member of the group for the purposes of a business to be carried on by that member; and
  2. (b) the reference in subsection (2) of that section to the purchase or creation of any interest shall be construed as a reference to a purchase from or creation by a person other 'than a member of the group.'"

The noble Viscount said: My Lords, this is another matter which the noble and learned Lord the Lord Chancellor said on Committee stage that he would look at with sympathy. I need hardly tell the House that my attempt at drafting a suitable Amendment at that stage came to grief. I do not believe I have ever yet drafted an Amendment to any legislation which was not open to very good criticism by the Parliamentary draftsmen, and I cannot pretend that this elegant Amendment is altogether my own work. Nevertheless, if the House agrees that it should be inserted into the Bill, I believe it will make a useful contribution to the working of the Landlord and Tenant Act, because it allows, for a particularly technical purpose, a group of companies to be treated as one when they are the landlord, in exactly the same way as they are under the existing law treated as one when they are the tenant. It therefore puts them in the same position, and, I hope, contributes to the balance between the landlord and the tenant in each case, which in both the 1954 Act and Part I of this Bill Parliament has attempted to achieve. I hope, therefore, with the indication that the noble and learned Lord will look favourably upon something that would amend this particular provision, the House will be prepared to accept the Amendment. I beg to move.

THE LORD CHANCELLOR

My Lords, as the noble Viscount has explained, we have considered with him the point which he raised on the Committee stage of the Bill, and this Amendment is in fact an agreed Amendment in which the Parliamentary draftsmen have assisted. It would not, I think, assist the House if I repeated the arguments which the noble Viscount has already so clearly explained. The Government ask the House to accept this Amendment.

On Question, Amendment agreed to.

4.4 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 6:

After Clause 12 insert the following new clause:

Provision to enable easier comprehension

of Part I of this Act

".There shall be published in the Queen's Printer's copy of this Act, after the 2nd Schedule hereto, a reprinted version of those sections of Part II of the Landlord and Tenant Act 1954 which have been amended by this Part of this Act, as so amended, together with such new sections which have been added to the said Part II of the Act of 1954 by this Part of this Act."

The noble Viscount said: My Lords, although I threatened on the Committee stage that I would return to the question of the Keeling Schedule to set out the whole of Part II of the Landlord and Tenant Act 1954 as amended by this Bill, I thought that it would be improper to ask the printers to go through the exercise of putting down this vast Amendment again. I have therefore put down a clause to introduce a short further discussion upon the question of how Parliament can make it clearer to members of the public what we have done when we have passed this Bill.

I would draw attention to the side note to my new clause, because that is what I am trying to do. I am trying to facilitate easier comprehension of Part I of this Bill, and, of course, Part II of the 1954 Act, as amended by it. One of the difficulties into which I ran on the Committee stage in attempting to provide a full Keeling Schedule was that the necessary clause to which the Schedule is attached is a very difficult thing to draft. It does not only have to say that the Landlord and Tenant Act shall have effect as amended by this Act, as set out in the Schedule. It has to take account of all sorts of other parts of the Landlord and Tenant Act 1954, and various other amendments that have been made since; and it has to make quite certain that in providing in this way for the reprint of the law no change in the law takes place.

I have had correspondence with the noble and learned Lord the Lord Chancellor on this point and he has explained to me that the drafting of this clause is not a simple matter. He has suggested to me (and this I think is particularly relevant now) that it might be useful in due course to append to this Bill a reprint of those sections of the 1954 Act which have been amended by this Part of the Bill, together with the new clauses which were put into the 1954 Act by this Bill. As is patently obvious to the House, Part I of the Bill is continuing to be amended.

There is another point which I think is still under consideration, and which the noble and learned Lord said he would look at. It has not been raised at this stage in this House, but it will be coming, I hope, in the other place; and, for all I know, it may be discovered that there are other worthwhile Amendments which we should take the opportunity of making to this Part of the Bill. Each of those would require a reprint of a Keeling Schedule were it to be put in at this stage, and also, as I understand it, a careful consideration of the paving clause introducing the Keeling Schedule, so that on each occasion one would make quite certain that one was not changing the law by mistake or by a side wind. I certainly do not wish to add to the work of the Parliamentary draftsmen in doing this on each occasion.

However, I still maintain that the complications of this legislation are such that it is the duty of Parliament, and not of those who write textbooks, to set out as clearly as we are able the effect of what we have done. The suggestion in this Amendment (and may I say that I shall not press it), is that we should at the end of the passage of this Bill through Parliament append to it a reprint of the parts that we have changed, together with the additions. This is half-way between a Keeling Schedule, which I put down as an Amendment on the Committee stage, and doing nothing at all. But it is important, for this reason. The noble and learned Lord the Lord Chancellor said that these Keeling Schedules were of importance for the consideration of the matter by Parliamentarians. So they are. He pointed out that the Law Commission in their Report have put as an appendix a reprint of all the clauses that they have amended, together with the new ones that they suggest. We have changed a great deal of that already and, for all I know, there will be further changes in another place. So the Law Commission's Report is not going to be an accurate guide even to the legislators.

I did, however, suggest—and upon reflection other noble Lords may agree with this—that it is not only the legislators who want to know the effect of legislation, particularly, as in this case, where it is a perfectly ordinary landlord or tenant of a small business who will have to apply the Act, and will find it impossible to apply it in many cases without having to seek professional advice. I do not think that they should have to buy expensive textbooks or go to expensive professional advisers in order to discover what it is that Parliament has been doing. I think that Parliament should tell them as clearly as possible and I have set out one way, at any rate, in which this could be done.

I think it is an important principle that Parliament should try to make as clear as possible what is the effect of the legislation that has been passed. I therefore move this Amendment in order that the noble and learned Lord can tell me, if he is able to do so at this stage, whether the Government have had a chance of thinking further about this matter. I hope that they have, because I believe it is important, and I believe it is a principle which would contribute to the aim, which I know he endorses so sincerely, that we should try to make ourselves plain to the public. I beg to move.

LORD SILKIN

My Lords, I should like to say just a word or two in support of the noble Viscount. I gather that he is not going to press the Amendment, and I can well understand why. But it is of the utmost important, particularly in complicated legislation of this kind, not only that the subject should understand it, but that equally the practitioners should be able to understand in the simplest way what is the effect of the legislation that we are passing. It may not be practicable to do it in exactly the form in which the noble Viscount has suggested, but I hope that it will become the general practice throughout legislation (and I know that it is the wish of the noble and learned Lord on the Woolsack to make legislation simpler for those who are affected by it) that in every case where existing legislation is amended, particularly in a complex form, the exact new legislation will be made available to those who are affected by it. I hope the noble and learned Lord on the Woolsack will be able to give us an encouraging reply, not only in this case, but generally in all legislation.

THE LORD CHANCELLOR

My Lords, if the noble Viscount will withdraw his Amendment I am prepared to undertake to see that there goes into the Bill, before it receives the Royal Assent, a Keeling Schedule, although I cannot undertake that it will do more than reprint the amended sections. The noble Viscount and I are both enthusiasts of the Keeling Schedules, and perhaps, for any noble Lord who is not familiar with them I might say that what Mr. Keeling did was put into a Bill a Schedule which showed what the legislation would look like if the amendments to the Act proposed by the Bill were made. It has always seemed to me that this is a very useful procedure and that it might very well be developed.

It has transpired that while the noble Viscount is also a Keeling Schedule enthusiast, he is so from rather a different point of view, and for rather different reasons. I have always thought that where you get an Act which is going to amend some existing Act, and you read: "Clause 4, leave out words so-and-so; put in other words" it is very difficult to follow. You really have to take the Act and then write these things in, or take them out, to see what the change proposed is. Therefore, to have such a Schedule is of great convenience for the legislators. That is not, I think, the burden of the noble Viscount's wishes; he is really thinking about the lawyers who are going to use the Act after the Bill has been passed. This is rather a different thing, and results in a Keeling Schedule of a rather different kind.

VISCOUNT COLVILLE OF CULROSS

My Lords, it would also help the public who do not even resort to the lawyers at all.

THE LORD CHANCELLOR

Certainly, my Lords. I am all for helping both. There are difficulties about this, and more than I have myself realised. Perhaps, for the record, I should just say something about the first kind of Keeling Schedule, which differs from the kind which I hope we are going to put in before the Bill receives the Royal Assent.

There are reasons of both Parliamentary and administrative convenience for deferring the addition of the Schedule to the last possible stage of the Bill. Keeling Schedules add quite materially and unproductively to the labour of Parliamentary draftsmen and, to a lesser extent, to printing requirements, and to the demands on Parliamentary time. Putting the Schedule together does not involve a great deal of trouble—that is largely a scissors-and-paste job. But its contents will have the force of law, so the Schedule has to be introduced by a clause, which must be drafted with great care, to ensure that every subsequent alteration, textual or otherwise, and every reference to, application or disapplication of the relevant provisions of the earlier Act, is correctly re-enacted. This involves a close examination of all relevant Statutes. Moreover, any amendment made to the Bill during the rest of its passage has to be carried through to the Schedule, and its effect on the introductory clause has to be considered. This involves a great deal of unproductive work. As an example, the Marshalled List of Amendments now before the House contains 14 consequential Amendments to the Keeling Schedule of Part IV set out in Schedule 2; if there were a Keeling Schedule in the Bill relating to Part I similar consequential Amendments would have to be made in that Schedule for every Amendment standing on the Order Paper regarding clauses in Part I. If the addition of the Schedule is deferred to the last possible stage, all this unnecessary work will be avoided. An argument sometimes advanced in favour of such Schedules is the convenience which they afford to Peers and Members of Parliament, but that does not apply to this Bill, as the amended sections are set out in Appendix 2 to the Law Commission Report. My Lords, there are obviously a number of considerations to be borne in mind when one is dealing with Keeling Schedules, and I shall be very happy at any time to have a general Keeling Schedule discussion with the noble Viscount.

VISCOUNT COLVILLE OF CULROSS

My Lords, the undertaking which the noble and learned Lord has given seems to me to be, as I rather expected, a compromise, and it is certainly not one that I would seek to reject. But with great respect to him I should have thought if one was going to set out the amended sections of the 1954 Act one might just as well set out the new sections put in by this Act. But this is a technical matter, and no doubt it could have an effect upon the drafting of the introductory clause. I am in favour of putting in as much as it is possible to put in. and I think that in the end—probably by the time the Bill gets to the Report stage in another place—it will be possible to decide how much, or how little, ought to be done. I am very happy to leave this to the noble and learned Lord, and to his colleagues in another place, in view of the undertaking he has given. I am very grateful to him, and I believe this will be of real assistance I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 21 [Contracts for purchase of land affected by land charge, etc.]:

4.16 p.m.

The Lord Chancellor moved Amendments Nos. 7 and 8: Page 11, leave out lines 5 to 7 and insert ("' purchaser' includes a lessee, mortgagee or other person acquiring or intending") Leave out lines 13 and 14.

The noble and learned Lord said: My Lords, these Amendments broaden the definition of "purchaser", in Clause 21, so as to exclude the requirement that he should be a purchaser "in good faith and for valuable consideration". The definition in the clause is based on a similar definition in Section 205(1)(xxi) of the Law of Property Act 1925. The particular requirements of "good faith" and of having given "valuable consideration" are, however, unnecessary complications to Clause 21. The clause is designed to protect a person who enters into a contract for the purchase of an interest in land and who at that stage, under the existing law, is fixed with notice of matters of which he has no knowledge and cannot be expected to discover. For this purpose it is unnecessary that the clause should be confined to a purchaser who acts in good faith, or gives valuable consideration.

The first Amendment deletes from the definition of "purchaser", in subsection (3) of the clause, references to "good faith" and "valuable consideration". The expression "in good faith" is now taken to imply that a purchaser has taken all reasonable care, and made all proper inquiries: and in this sense proper inquiries would normally include a search of the register. The clause, however, is concerned with a situation in which a person contracting to buy land is unable to search the register effectively, because at that stage he may have no knowledge of the names against which he should search. Inclusion of the expression "good faith" in the definition of purchaser would be liable to cause confusion, and might induce purchasers and their advisers to make more rigorous inquiries before contract than are at present required in practice. The deletion of "valuable consideration" is desirable because at the time of entering into a contract for a future purchase (with which the clause is concerned) the question of having furnished valuable consideration does not arise.

The second Amendment is consequential on the first, and unless any noble Lord thinks otherwise, I will put them both together.

On Question, Amendments agreed to.

Clause 25 [Powers of Lands Tribunal and court in relation to restrictive covenants affecting land]:

THE LORD CHANCELLOR moved Amendment No. 9:

Page 15, line 17, leave out from beginning to ("there") in line 18, and insert— ("(2) So much of section 84(1)(a) as follows the words 'obsolete, or' shall be a separate paragraph (aa) and shall be amended as follows:— (a) after the word that'").

The noble and learned Lord said: My Lords, if this Amendment is agreed to, I shall not be able to call Amendment No. 10. Amendment No. 9 is one of a series of drafting Amendments which it may be convenient, I hope, to discuss together. They are Amendments Nos. 9, 12, 15, 27 and 30.

VISCOUNT COLVILLE OF CULROSS

And 11.

THE LORD CHANCELLOR

And 11. I thought I had mentioned 11. The first of these Amendments splits paragraph (a) of Section 84(1), into two separate paragraphs, (a) and (aa). Section 84(1), paragraphs (a) (which is itself amplified in subsection (1A)), (b) and (c) set out the grounds on which the Lands Tribunal may discharge or modify restrictive covenants. Whilst each of paragraphs (b) and (c) specifies a single ground, paragraph (a) specifies two grounds: first, that the restriction ought to be deemed obsolete; and secondly, that its continuance would impede some reasonable user of the land. The Amendment secures that each of these two distinct grounds is contained in a separate paragraph. The division is particularly material in view of the fact that the new subsection (1A) applies to the second ground only.

The Amendment adopts the suggestion made by the noble and learned Lord, Lord Wilberforce, during the Committee stage of the Bill. The second, third and fourth Amendments are consequential on the first. The second and third are designed to set out the Amendments contained in Clause 25(2) with greater clarity by means of paragraphing. The fourth Amendment substitutes a reference to the new paragraph (aa) for paragraph (a) of subsection (1). My Lords, I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, I think this is an excellent group of Amendments. One always has this difficulty, in referring to Section 84(1)(a), as it now is, that one has to talk about "Section 84(1)(a) first" or "Section 84(1)(a) secondly". Therefore, in effect and in practice in the Lands Tribunal, and in the practitioners' terminology, it is already split up. All that this Amendment is doing is to make that separation formal. It will make reference easier; I am sure it will make the law more clear, and I am delighted that the noble and learned Lord the Lord Chancellor is suggesting it.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, I have dealt with Amendment No. 11 in dealing with Amendment No. 9. I beg to move Amendment No.11.

Amendment moved— Page 15, line 19, after ("below",") insert ("(b)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, I have also dealt with Amendment No. 12 already. I beg to move.

Amendment moved— Page 15, line 21, after ("and") insert ("(c)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment also we discussed when moving Amendment No. 9. I beg to move Amendment No. 15.

Amendment moved— Page 15, line 24, leave out ("(a)") and insert ("(aa)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

4.23 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 16: Page 15, line 28, leave out ("either").

The noble Viscount said: My Lords, this is the one major subject of dispute which I believe is left in this Bill. It is quite impossible to follow any argument upon it unless your Lordships would be so good as to look at Schedule 2 to the Bill where the legislation as it is now proposed is set out in full. I have already addressed a number of remarks to your Lordships on this mattter in Committee, but I think that this is something to which one must return. The Amendment is in fact only a paving Amendment, and with it go Amendments Nos. 18 and 19, which are really dealing with the point of the matter.

The situation, as I understand it, is this. At the present moment, the trouble about the power of the Lands Tribunal to modify or discharge a restrictive covenant under what is now Section 84(1)(aa) of the 1925 Act (after we have accepted the last Amendment—that is the second limb of what used to be paragraph (a)) is that one has to show that the proposition one is putting forward is the only reasonable user of the land, and that the covenant, which may well date back for some time, is restricting this only reasonable user. We have already amended the law to the extent that the text does not now refer to the "only" reasonable user; all it is now necessary to show is that the covenant is impeding "some" reasonable user of the land. But then the Bill goes on to deal with the interpretation of "some reasonable user" and to tell the Lands Tribunal what it is that they may take into account. It is at this stage that the new Sections (1A) and (1B) have been put in, in order to give guidelines to the Lands Tribunal.

What has been done, therefore, is not only to ease the situation so that the Lands Tribunal may consider some reasonable alternative to that which is insisted upon by the covenant, but in addition they are entitled to look at certain matters. One of the things they can do—and this is in the new Section (1A)—is this. They are authorised to discharge or modify the restriction by reference to its impeding some reasonable user … in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user, either— (a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value to them"— and there is going to be an Amendment to that—or is contrary to the public interest; and then in looking at whether it is contrary to the public interest, among other things, they take account of the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in relevant areas"— and, of course, I think inevitably, any planning permission that has actually been granted for the land itself. To this situation is to be added a perfectly clear provision (the position has been most obscure hitherto) that if the Lands Tribunal do on these grounds modify or discharge the restrictive covenant, any person who is entitled to the benefit of it is to be suitably compensated. This is a matter to which we shall come under one of the noble and learned Lord's subsequent Amendments.

There is a balance to be struck here, and I must at once confess that it is a matter of judgment to see which way the balance ought to go. I think one must take a concrete example, as I did before. Let us suppose that there is a house which has been built as part of an estate of houses, all in similar plots and all at very much the same time, and that it stands in an acre of land. The house is subject to a restrictive covenant which says that there shall not be built on that site more than one dwelling. The same thing applies to other houses and other plots round about, and there are people in the neighbourhood who are entitled to rely upon that restriction and, indeed, relying on that restriction, m my of them have gone to live there and bought their houses there because they like to live in a low density area.

It may well be that someone comes along—and it is not a question of his motives; they may be perfectly proper motives—and says, "I think it would be a good idea to have four houses on this plot." That of course is contrary to the covenant, and before he can set about building, without the fear of an injunction being placed upon him, he must go to the Lands Tribunal to have the restrictive covenant removed.

The Bill as it is now drafted would allow the Lands Tribunal to say that four houses is some reasonable user of the land. Many people perhaps, if this was in an area where there was a housing shortage, as is the case in so many places, would say, with the Minister of Housing and Local Government in many circulars and other of his publications, "We must make the best possible use of urban land." And this person who wishes to put four houses on the land would therefore think he was acting in a public-spirited way and helping to fill a mach felt need. He would go first of all to the local planning authority—and let us assume that they grant him planning permission for this project. He then goes to the Lands Tribunal and asks them to discharge or modify the restrictive covenant so that instead of having only one house he may have four. The Lands Tribunal are entitled to do this, under the Bill as it now stands, if they are satisfied that the restriction, in impeding the four houses, is contrary to the public interest. They may consult with Government Departments; they may consult with Ministers and their Departments. They are expressly entitled to take into account the development plan, and are also entitled to take into account any other planning permissions granted in the area which give an indication of the way in which development is going.

The development plan is of course very important, because this may say that in this particular area of the town, or whatever it is, it is the policy of the local planning authority that densities shall be increased. Moreover this is done, as I have already said, against the background that there is a housing shortage in that area, and this is the justification for increasing densities. Therefore the Lands Tribunal can look at the development plan, they can look at the actual planning permission and at other planning permissions in the area. What they are interested in is to decide what is the public interest. This is a matter of planning. I will come on to the other things that the Lands Tribunal can look at in a moment, but let us just stop there.

So far it is a matter of planning, and there is only one arbiter of planning in any one area at present, namely, the local planning authority, subject, of course, to the guidance of the Minister and the approval of the development plan. They are the people to whom has been entrusted by Parliament the public interest in so far as land use in that area is related. They are the people who decide, democratically and subject to the Minister's control, what form of development is to be allowed and what is not. It seems to me unlikely that it would be easy to argue that something which has been allowed by the local planning authority is contrary to the public interest.

There is a further difficulty in dealing with this matter because any sensible applicant who wishes to rely upon that particular argument will not be so foolish as to bring to the Lands Tribunal the planning officer of the local authority, who may be cross-examined by those who object to this modification or discharge, to say whether or not it is in the public interest to build four houses here. The Lands Tribunal will rely upon the evidence of the planning authority itself and the fact that the proposals must have been passed by this responsible authority. Nor will there be before the Lands Tribunal any representative from any Government Department, or anyone else who can say what is in the public interest. In these circumstances it will be virtually impossible to deny that the proposals for which the modification or discharge is required are indeed in the public interest.

The Lands Tribunal also have to look—and this is the second half of the new subsection (1B)—at the period and the context in which the restriction was created or imposed, and any other material circumstances. There are two points to be made here. In the first instance, I do not object to the Lands Tribunal's looking at the development plan, or at other planning permissions, or indeed at this planning permission, but I do object to their attention being specifically drawn to those, and to specific emphasis being laid upon those matters dealt with particularly in paragraph (b) of the new subsection (1A). It is right in some circumstances that they should look at these things, but I do not think it is right that the whole force of this legislation should now be slanted so severely in favour of the public interest. The Lands Tribunal have also to look at the context and the period when the covenant was imposed.

Then there is the question of compensation. There is this to be said about the context and the period of the restriction. It may be old; it may have related to a time when this particular estate was being split up into building plots; but it may well be, too, that it is the existence of that covenant imposed over all the plots in common which has created the character of that area and has caused people to go to live there and buy their houses and to enjoy it. It may not be anything like so important to look at the period when it was imposed as to consider the effect which its imposition has had upon the people who live there.

We then go on to the question of compensation. It is all very well to say that, because the value of the property next door would be depreciated by the building of the four houses, because they will overlook the garden or because they will be an intrusion into what has hitherto been the character of the neighbourhood, therefore some sum in compensation should be payable. I think that is acceptable and it is right. But you go further than that: you say to the person who bought the house next door, relying upon the existence of this covenant, "We have decided that in the public interest the character of this neighbourhood is to be changed. That is what the local planning authority says and we, the Lands Tribunal, agree that that is in the public interest". You are then saying to that person, "We are arbitrarily changing the character of your area; true, we will compensate for that, but if you wish to continue to live in a neighbourhood possessing this character it will not be here—you must go somewhere else". Therefore you give him no option, if he wishes to maintain this particular character of an area in which to live. He gets no compensation for that.

This is the nearest thing to giving to a private individual the right compulsorily to acquire the benefit of a restrictive covenant—an interest in somebody else's land—that we have seen, perhaps, as somebody suggested to me, since the railway companies were setting up their empires in the last century. If that is what we are doing then I think we are going too far. I do not wish to be immoderate about this matter. I am content that the public interest should be looked at, but not so greatly emphasised.

It will then be said—and this is my final point—"But the courts will pay more attention to the context and the period of the restriction and other material circumstances than they will to the public interest, and they will draw a narrow interpretation of what the public interest means". My Lords, I have not done a profound study of what the courts have said about the public interest, but I would refer your Lordships for a moment to a decision in the Queen's Bench Division last year in a case called Cartwright v. The Post Office. Here a lady named Mrs. Cartwright did not want the Post Office to put a telephone line across her land, which the Post Office wished to do in order to take the telephone to two farms on the other side of her property. There were only two other farms involved. The law says that if there is a difference of this sort about whether a line shall go across property, the tribunal to which the difference is referred shall not give its consent to the placing of the line unless satisfied that the refusal or failure of the person to allow the line to go across his property is contrary to the public interest. So here we have a case in which the courts say what is the public interest in this context. Of course it is in this context, but it is an indication.

This case went to the county court judge. Your Lordships will remember that there were only two farmers concerned in Mrs. Cartwright's refusal. What the county court judge said was the public interest concerned in this case was—and I quote: I accept that it is in the public interest that many private difficulties be either prevented or speedily remedied. If a child is ill I think it is in the public interest that a doctor should he called as quickly as possible. We provide a free medical service for this purpose and it is in the public interest. On farms accidents sometimes happen with machinery, and although it is an individual who is hurt there appears to be a public interest that the individual should be treated and cured as effectively as possible. If a beast is sick it should be possible to summon the vet, speedily. If a hayrick catches fire it is in the public interest that the fire brigade should be called to put out the fire as quickly as possible. There is an agricultural advisory service and it is desirable that it should he possible to call for its services. In winter in this area"— it was in North Staffordshire— severe weather is experienced and arrangements have to he made for taking children to and from school. That is what the county court judge catalogued as the public interest involved in the taking of the telephone to these two farmers.

The learned judge of first instance said: I respectfully agree with that catalogue of measures, all of which seem to me to be in the public interest"— and over Mrs. Cartwright's land the telephone line went. I am not criticising that decision. I am sure it was perfectly correct. But what it indicates, I would suggest to your Lordships, is that the courts can take as being in the public interest something of very small local concern indeed. They may be right to do so; but if that is the way it is going to be interpreted we are going to have no severe interpretation of this Part of the 1925 Act as amended by this Bill; we are going to have a liberal interpretation by the courts which will in fact endorse everything that the local planning authority has said.

Of course, there will be test cases which go on appeal to the Court of Appeal, but if they follow that line the local planning authority will win, and indeed all that will be involved at the Lands Tribunal will be a second planning inquiry without any of the people who can set out from the planning authority's point of view the arguments in favour of this development. I think this goes too far. I have made a long speech, but I think it most important that we should preserve a proper balance in this matter. I am suggesting that we leave out the specific reference to the public interest and the specific reference to the development plan and the planning permissions, that we leave in the other material circumstances and allow the Lands Tribunal to take such account of them as they think fit. I beg to move.

4.42 p.m.

THE LORD CHANCELLOR

My Lords, I think the noble Viscount would probably agree that as well as discussing Amendments Nos. 18 and 19 with No. 16 we might also take in Nos. 31, 33 and 34, which are really consequential. The noble Viscount is, I think, right in saying that this is the only remaining point in dispute between us.

The object of these Amendments is to limit the power of the Lands Tribunal to discharge or modify covenants to those covenants which are not of substantial value or advantage to the persons having the benefit of them. Such a limitation would not accord with the recommendations of the Law Commission which the clause seeks to implement. The desired effect of making land available for development, where it is in the interest of society that it should be developed and any loss resulting to those benefiting from restrictions on the land can be adequately made up for by monetary payments, would not be achieved.

At present the Lands Tribunal can discharge restrictions only where they impede the reasonable use of land for public or private purposes and secure no practical benefits to other persons. As a result of the strict interpretation of the existing provisions of Section 84(1) restrictive covenants can in practice only be discharged where they are almost worthless. As the noble Viscount knows, this position has been strongly criticised for years and Proposition 9 of the Law Commission Report on Restrictive Covenants recommends that the Tribunal should be able to modify or discharge a restriction which is detrimental to the public interest by impeding the reasonable user of land, always provided that adequate monetary compensation can be awarded to those damnified by the modification or discharge. The new subsection (1A) gives effect to this recommendation by giving the Lands Tribunal the necessary powers: (i) where the restriction does not secure practical benefits of substantial value to the persons concerned and any loss they suffer can be made good by a monetary award; and (ii) where the restriction is contrary to the public interest and the loss can be compensated by a monetary award.

The noble Viscount would retain the first head and eliminate the second. He questions the whole policy of allowing planning considerations to override the interests of neighbouring landowners. But his Amendment would reduce the effect of Clause 25 to a very moderate enlargement of the powers of the Lands Tribunal. Where at present they can only act because the restriction confers no benefit, they would in future be able to act where the benefit conferred by the restriction is not substantial. They would also, as a result of the change made in Section 84(1)(a), be able to apply more generous tests in determining whether the restriction is one which impedes reasonable use and therefore ought to be lifted. But the predominant consideration would still only be the extent of the benefit conferred by it. The importance of the second ground lies in the ability to lift restrictions which operate contrary to the public interest even where the loss of the benefit of the restriction results in the substantial depreciation of the value of adjoining land. The Law Commission stressed (Note 3 to Proposition 9) that the Tribunal should be enabled to take a broader view whether the use of land is being unreasonably impeded", and the Government accept this recommendation. Where only monetary loss is involved, the public interest as evidenced by planning considerations should prevail.

Some safeguard against amenities being overridden may be found in the requirement that money must be adequate compensation. For instance, it may well be that the Tribunal or the courts will hold that money cannot compensate for a total loss of privacy or the blocking of a beautiful view which was the main attraction of a particular residence. But the task of holding the balance between the interest of the adjoining landowner in his amenities and the interest of society in the full use of land must be left to the Lands Tribunal, in so far as it is not already adequately carried out by planning authorities. It is not possible to find a form of words which could provide a precise line of demarcation.

The noble Viscount's Amendment would not achieve a balance, but prevent the public interest from being by itself any ground for the lifting of restrictions. If the noble Viscount will withdraw his Amendment, I am of course quite prepared to look at the authority to which he has been good enough to refer me and indeed to consider the whole question, because it is that always rather difficult question of just where you draw the line.

VISCOUNT COLVILLE OF CULROSS

My Lords, I am sure that that is the right thing to do, and I am glad to hear that the noble and learned Lord's mind is not altogether closed upon this matter; it never is, but I am glad to have his reinforcement that this is so again on this occasion. I am far from certain that the Lands Tribunal are the proper body to decide on this sort of issue of the public interest as against private interest. I am far from certain that the Lands Tribunal will have before them the material upon which to make that decision; and indeed I think it will be greatly to the advantage of the applicant that he should not bring before the Lands Tribunal anybody who can be cross-examined on the public interest. I believe this to be a cardinal point. The matter will speak for itself from the planning permissions and the development plans, and there will be no opportunity for the Lands Tribunal or for those who object in any way to call in question whether or not this is in the public interest. I do not believe this is justiciable in this particular form.

It is another matter to decide whether the public interest ought to override, private rights. This is a widespread thing which happens in all sorts of realms in this country to-day. That is indeed what the whole system of compulsory purchase is for. I liken this to compulsory purchase, and I still think, particularly after hearing the speech of the noble and learned Lord, that this measure is slanted in that direction, and it is to that that I object. Local planning authorities have been given even wider powers than they had before to acquire land compulsorily—this is under the Town and Country Planning Act 1968—in order to see that it complies with the development plan. I should have thought those were the sort of occasions, when we have a Ministerial Inquiry and both sides can question what is in the public interest and whether this is correct in the terms of the development plan, when you can judge a matter which is basically quasi judicial.

In my humble opinion, the Lands Tribunal are not equipped, nor will they have the information or the opportunity, to make this choice. I would urge most earnestly upon the noble and learned Lord to think about this matter again. I do not wish to be over-restrictive in the relaxation that this Bill will bring about. I am not seeking to cramp any sort of widening of the extent to which the Lands Tribunal can modify or relax. That is not my intention at all. I am simply saying that we are going into realms which are normally dealt with by Ministerial action and not by the courts, and we should not do so. I should be very glad to have an opportunity to consider this further with the noble and learned Lord, and indeed with others who have helped me very much in seeking to make up my mind on this. I will, however, promise the House that I will return to this at the next stage, but meanwhile I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR moved Amendment No. 17: Page 15, line 30, after ("value") insert ("or advantage")

The noble and learned Lord said: My Lords, with this Amendment it may be convenient to consider No. 32 as well. These Amendments ensure that the Lands Tribunal will not be able to discharge or modify a restrictive covenant which confers "substantial advantages" on persons enjoying the benefit of the restriction unless continuation of the restriction is contrary to the public interest. Subsection (1A)(a) enables the Lands Tribunal to discharge or modify a restriction impeding some reasonable user if the restriction does not secure to persons entitled to the benefit of it any practical benefits of substantial value to them". The benefits of substantial value might be interpreted as meaning only benefit which enhance the monetary value of other land. On that interpretation the Lands Tribunal could discharge a restriction which protects important amenities of neighbouring land (for example, privacy, a fine view, freedom from noise or disturbance) where these amenities are not reflected in the value of the land. This situation arises not infrequently where land currently used for residential purposes has a far higher value for industrial or other development for which the amenities would be irrelevant. By adding the words "or advantage" after "value" the Amendment makes it plain that "value" includes amenity value or other non-monetary value. I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, I think that this Amendment has both value and advantage and I support it.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendment No. 20: Page 16, line 5, leave out ("with") and insert ("in view of").

The noble and learned Lord said: My Lords, with this Amendment goes Amendment No. 35. This is a drafting Amendment to meet a criticism made by the noble and learned Lord, Lord Wilberforce, during the Committee stage of the Bill. Subsection (1C) declares that the Lands Tribunal's power to discharge or modify restrictive covenants includes a power to add such further provisions restricting the user of or the building on the land affected as appear to the Lands Tribunal to be reasonable with the relaxation of the existing provisions … The Amendment substitutes the phrase "in view of" for the word "with". I beg to move.

On Question, Amendment agreed to.

4.52 p.m.

THE LORD CHANCELLOR moved Amendment No. 21:

Page 16, line 8, at end insert— ("( ) In section 84(1) there shall be omitted the words ' (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order) ' and the proviso, and after paragraph (c) there shall be inserted the words and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the following heads, that is to say, either—

  1. (i) a sum to make up for any loss or disadvantage suffered by that person in consequence of the discharge or modification; or
  2. (ii) a sum to make up for any effect which the restriction had, at the time when it was imposed, in reducing the consideration then received for the land affected by it.")

The noble and learned Lord said: My Lords, with this Amendment, I think, can be considered Amendments Nos. 25 and 29. These Amendments delete from Section 84 all references to the payment of compensation for the discharge or modification of restrictions and replace them by adding at the end of Section 84(1) a concluding passage dealing comprehensively with monetary awards. As a result the Lands Tribunal will in future be able, when discharging or modifying restrictions, to order payment of sums of money which will make up for either (i), any loss or disadvantage suffered by those entitled to the benefit of the restriction; or (ii), any reduction in the purchase price received by the vendor of the burdened land at the time when the restriction was imposed, which is due to the restriction.

The existing provisions on compensation are unsatisfactory in many ways. Hitherto, that has mattered little because the powers of the Tribunal have been so narrowly interpreted that compensation was hardly ever awarded. In future the availability of compensation will be a major factor in determining whether a restriction can be discharged or modified under subsection (1A) and a clear statement of the power to make monetary awards and the measure to be applied is of corresponding importance. Accordingly, the Amendment deletes the words in the second parenthesis in Section 84(1) (which provide for the payment of compensation to any person suffering loss in consequence of the Tribunal's order) and the proviso to it. The proviso, which is obscurely worded, lays down three criteria:

  1. (i) compensation for the discharge or modification of a restrictive covenant is not to be payable simply because the owner of the burdened land has obtained an advantage thereby;
  2. (ii) the compensation payable to the owner of the benefited land is not to exceed the loss which he suffers;
  3. (iii) notwithstanding (i) and (ii), compensation can be paid in respect of any reduction in the price received in the past for the burdened land, which was due to the imposition of the restriction.
Of these criteria, (i) and (ii) are otiose because it is the nature of compensation that it is payable in respect of loss suffered (rather than gain made by others) and that it is enough and not more than enough to make good that loss. The substance of (iii) is reproduced in the Amendment.

The new passage introduced by the Amendment confers a discretion on the Tribunal to direct the payment of sums by way of consideration for the discharge or modification of a restriction and goes on to state how the sums are to be quantified. The Tribunal are given discretion to make such orders as they think just, and the award is termed "consideration" and not "compensation" to take account of the fact that it may cover not only actual financial loss but also disadvantage, like loss of amenities, which cannot be accurately quantified. I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, it will not have escaped your Lordships' notice that I, too, was not satisfied with the compensation provisions and have put down an Amendment on this point. But I have no doubt that the Amendment which has been moved by the noble and learned Lord is better than mine and I hope that it will be accepted. It is such a pity, surely, that at last we have had an explanation of the proviso to Section 84(1), but at a time when it will be useless in future to discover what it means. I have consulted a number of people, and the obscurity of the proviso is such that few have been able to give me any real indication of the scope of its interpretation. I shudder to think what would happen. Whether the clause remains as it is now or is amended in the way I want does not matter; in either case, a clear provision for the method of assessing compensation in the circumstances in which it is to be paid is highly desirable. I think that it is a great improvement indeed to this Bill that we should have this Amendment making it clear, and I earnestly support the Amendment.

On Question, Amendment agreed to.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 23: Page 16, line 28, leave out ("appearing to be") and insert ("being").

The noble Viscount said: My Lords, this Amendment raises a small point, and it arises in the new subsection (3A) which is being added to Section 84 of the 1925 Act. The subject matter of the new subsection (3A) is to set on foot the necessary provisions by which the Lands Tribunal can sort out who is to take part in the hearing on a question of whether a covenant is to be modified or revoked altogether; and it underlie; the whole of this subsection that there will be rules, both in the Lands Tribunal and, I think, in the High Court, dealing with this matter. I simply want to ask the noble and learned Lord the Lord Chancellor a question. As the Bill is drafted at the moment, the Lands Tribunal are going to give directions as to the people who are or are not to be admitted to oppose the application. The criterion upon which the Tribunal will give directions, as I understand it, is that the people in question appear—or, I suppose, alternatively, do not appear—to be entitled to the benefit of the restriction. It may be that this will all come out quite clearly in the rules. But if, as I hope, there is not going to be a tremendous amount of argument, at the substantive hearing of the application to modify or revoke, about who is or is not entitled to the benefit at that stage (the idea being, believe, that all of this should have been sorted out beforehand) I believe that: it should have been established who is entitled to the benefit and who is not. Therefore, the directions which the Lands Tribunal give as to those who are to be allowed to oppose the application itself ought to be based upon certainty, in so far as that can be achieved in law, as to the benefit that the people who are allowed to come may possess.

There are preliminary methods of finding out who those people are. If there is a dispute at the initial stage, when this matter is being discussed by the Lands Tribunal, it can be adjourned and go to the Chancery Division; the rules provide for that, and the Bill provides for that. But once that has been done will it be perfectly certain under the rules that the people who are there to oppose the application will be there in fact to do that, and not to argue any more about whether or not they are entitled to the benefit of the covenant. I ask this because if they return to that matter simply because it appears to the Lands Tribunal that they are entitled to the benefit, then I think we shall have interminable arguments and a great deal of time wasted. It is to raise that point that I move this Amendment.

THE LORD CHANCELLOR

My Lords, this is a small point on which we are not, I am afraid, altogether agreed. The new subsection (3A) introduced by the Bill requires the Lands Tribunal to give any necessary directions as to persons who are or who are not to be admitted to oppose the application because they appear to be entitled, or not entitled, to the benefit of the restriction. The Amendment would alter this to provide for the admission of persons because they are entitled to the benefit of the restriction. The implication of the altered wording is that the Lands Tribunal would decide whether or not a person is in law entitled to the benefit of a restrictive covenant. This is wrong, because the determination of questions of law is reserved for the court by Section 84(2). The new subsection (3A), which is based on proposition 11 of the Law Commission's Report, is not intended to alter this position. In order to determine who are the proper parties to be heard in opposition to the application the Tribunal must take a prima facie view on questions of law as to the validity or enforceability of the restrictive covenant, or the annexation of the benefit to particular land. They will do so when giving a ruling as to the persons who appear to be entitled to enforce the benefit of the restriction, and if this ruling is not accepted the legal issue is, under the subsection, to be referred to the court. The Amendment would blur the intention which lies behind the subsection, and therefore I am afraid that we are unable to accept it, though I shall be happy to discuss the point further with the noble and learned Viscount at any time.

VISCOUNT COLVILLE OF CULROSS

My Lords, in fact I do not think there is any difference between the noble and learned Lord and myself, because I entirely agree that the substantive issue of who is or who is not entitled to the benefit should go to the Chancery Division under Section 84(2), and that is what the whole provision is intended to ensure. The noble and learned Lord will, however, take my point that it is really essential that this matter should be cleared up before the substantive hearing. I am talking only about the content of the rules, which will be the way in which the method of giving directions is spelt out. It is in the rules that we shall get this straight; it is in the rules that it will be made plain that this is, as it were, an interlocutory issue which must be decided before the substantive application comes on. It is simply to make sure that this point is brought home to the noble and learned Lord (I am sure he is well aware of it already) that I put down this Amendment. I entirely accept his explanation. So long as the rules ensure that it is done in this way I am quite happy about it, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.4 p.m.

The LORD CHANCELLOR moved Amendment No. 24:

Page 16, line 40, at end insert— ("( ) In section 84(11) at the end of paragraph (b) there shall be added the words 'or of section 19 or 23 of the Civil Aviation Act 1949'.")

The noble and learned Lord said: My Lords, Amendment No. 38 is also relevant to this Amendment. The purpose of the Amendments is merely to bring up to date the references to restrictions imposed for civil aviation purposes in Section 84(11) of the Law of Property Act 1925. These restrictions are exempted from the jurisdiction of the Lands Tribunal. Section 84(11), as reproduced in Schedule 2, refers to the Air Navigation Act 1920 which has now been repealed and largely re-enacted by the Civil Aviation Acts 1949 to 1968. As I said during the Committee stage, reference to the 1920 Act remains a necessary one because many restrictions were imposed under provisions of the later Acts, which substantially re-enact powers conferred in 1920 as a result of perpetuation and saving provisions found in the later Acts. ft is, however, desirable to refer to the present-day empowering provisions which have succeeded those of the 1920 Act, where they can be identified, and the Amendment does so.

The Amendments have the further advantage that they dispel any doubt whether some agreements for civil aviation purposes restrictive of the user of land which are authorised under later legislation are covered by the reference, in paragraph (b) of subsection (11), to the Air Navigation Act 1920. Section 19(7) of the Civil Aviation Act 1949 allows a local authority to impose restrictive covenants when selling land around an aerodrome, and under Section 23 of the Board of Trade are enabled to acquire the benefit of restrictive covenants in connection with civil aviation purposes. The history of consolidation of the Civil Aviation Acts is complicated, and it may be that some of the powers referred to in sections 19 and 23 do not derive directly from the Air Navigation Act 1920. My Lords, I beg to move.

On Question, Amendment agreed to.

Schedule 2 [Law of Property Act 1925: Section 84 reprinted with Amendments]:

VISCOUNT COLVILLE OF CULROSS

My Lords, may I intervene to say that all the noble and learned Lord's remaining Amendments are purely consequential. I shall not move any of mine. It may be that the noble and learned Lord could take the remaining Amendments formally.

THE LORD CHANCELLOR

My Lords, I gladly avail myself of that offer, and if I may put together the remaining Amendments in my name I shall do so if that is not inconvenient to noble Lords May I move Amend- ments Nos. 25, 27, 29, 30, 32, 35 and 38 en bloc? As no noble Lord objects, I need not put them all severally from the Woolsack. I move that those Amendments be agreed to.

Amendments moved—

Page 20, line 26, leave out from ("restriction") to ("on") in line 28.

Line 32, after ("or") insert ("(aa)").

Page 21, leave out lines 1 to 10, and insert ("and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the Following heads, that is to say, either—

  1. (i) a sum to make up for any loss or disadvantage suffered by that person in consequence of the discharge or modification; or
  2. (ii) a sum to make up for any effect which the restriction had, at the time when it was imposed, in reducing the consideration then received for the land affected by it.")

Page 21, Line 11, leave out ("(a)") and insert ("(aa)").

Page 21, Line 16, after ("value") insert ("or advantage").

Page 21, Line 32, leave out ("with") and insert ("in view of").

Page 23, line 8, at end insert ("or of section 19 or 23 of the Civil Aviation Act 1949").—(The Lord Chancellor.)

On Question, Amendments agreed to.